At  Popehat, Ken wrote a post addressing the question of blawger credibility. After all, blawging has been around for a while now, with bloggers like  Patterico celebrating ten years,  Wally Olson coming on 37 (just an estimate as he was the first blawger), and even me passing six.  Are we still perceived as crackpots typing furiously in our bathrobes in the middle of the night?

Despite how mainstream bloggers have become, and despite the fact that almost all “mainstream media” outlets have their own bloggers, the prevailing attitude seems unchanged in more than a decade: bloggers, we’re told, are unreliable, biased, wild-eyed pajama-clad basement-dwellers.

We’ve been told to think that people who went to journalism school, who write or talk for established media outlets, who are clad in the garb of media-officialdom, represent some sort of neutral-and-reliable baseline, and that bloggers are somewhere below that. But it’s fallible humans all the way down, my friends. The notion that someone is trustworthy or honest because they landed a job with an old-school media outlet is, to be blunt, laughable.

It may be laughable to the cognizanti, but it’s hardly a laughing matter. While “journalists” protect their turf by noting their J-school credentials, their legal protections and the ethics of their profession, the most significant element of their credibility is that someone, for whatever reason, decided to let them write for a publication that is publicly perceived as credible. 

If it’s in the New York Times, it must be real, because the Times wouldn’t let some nutjob or ignoramus put words on its pages.  Too old school an example? Fair enough. What about Slate, one of the most widely regarded online source of information.  After all, Slate posts all about criminal law matters, in the capable of hands of Justin Peters, at the cutting edge of respectability,

And yet, when Peters wrote about Aaron Swartz in Slate, it commanded  enough authority that it was  immediately picked up by the blawgosphere.  Had this same fellow not written for Slate, but rather on a blog of his own or for one of the many self-proclaimed investigative journalist websites, no one would have known or cared. Peters has no personal credibility, but enjoys basking in the reflection of Slate’s. 

Ken concedes some of the negatives heaped on blawgers, but questions whether the people hired by mainstream media are above those same questions:

Are bloggers wild-eyed? Sure. Some of us are nuts. But check out the sort of people that “mainstream media” hires. This week’s example — local news writer Kathleen O’Brein Wilhelm, who as far as I can tell thinks deer can’t read because Obama kills babies, and offers deathless lines like this: “Words are fun and worth clearly stating, in English if in America, and with an opinion that is yours because it’s good to have an opinion.” Too obscure a media outlet, an exception that proves the rule? Well, you could go with the crazy Suzi Parker of the Washington Post, whose crazitude led her breathlessly to report satire about Sarah Palin as fact.

It’s easy to point to anecdotal evidence of crazy and incompetent writers working mainstream media, but that doesn’t entirely address the question. The problem is that, more than ten years later, why do all blogs remain in the vast credibility limbo?  Even the most serious and respected lawprof blawgs, where no one ever cracks a joke or has any fun, desperately strive for credibility in that needy fashion that academics do so well.  Why?

It’s long been my view that blawgs, law blogs, are the greatest peer reviewed content every created.  If a lawyer writes something incorrect or foolish, there are innumerable similarly educated and experienced people out in the ether to correct him, whether kindly or by ripping his lungs out. Either way, words put out for public consumption are subject to criticism from all quarters. Why not?

This is a good thing. No, a great thing. With every post, we either pass muster with our peers or get ripped to shreds. And that’s how good thought triumphs over ignorance and stupidity.  It’s different for non-lawyers who write about the law and post inaccurate and utterly insane nonsense. If people choose to get their legal information and analysis from non-lawyer self-proclaimed nutjobs, that’s their choice. It’s a big internet, and there is a point of view that confirms everyone’s, no matter how wrong.

But when it comes to law, whose deep and thoughtful views would merit greater credibility: those of a lawyer with significant experience in the field, or those of a kid journalist who was doing the Trend beat two weeks ago and became an overnight expert because a credible news source handed him the keys to their crime beat? 

Too stark a comparison? Fair enough. What about a lawyer, but one who has never seen the inside of a courtroom, represented a living human being or had to cross a witness?  Smart, Educated. Well-spoken. Just not real. Such pundits are out there, you know, offering expert commentary on matter about which they’re not exactly experts. And yet, we believe them.

As Ken argues that blawgers may be nuts, but no more nuts than the journalists who staff the legitimate and credible institutions of media, I argue the alternative.  Blawgers may never get the attributed credibility that a Justin Peters gets for having been tapped by Slate to write on a subject about which he knows nothing, there needs to come a time when they receive the credibility they’ve attained on their own. 

Without the trappings of a New York Times, ABC or Slate, there is good, credible work being done in the blawgosphere, whether in pajamas or suits and ties.  And some of it is just as solid, if not more so, than anything you’ll find on dead trees or airwaves.  It’s time to give it a little respect.

A computer is more like:

1. A safe
   
2. A file cabinet
   
3. A suitcase
   
4. A garbage can
   
5. A computer

The answer to this question will determine whether you spend a lengthy period of time as a guest of the federal government at one of their lovely vacation spots.  When it comes to technology, the question of which precedent to apply is based largely on which analogy a judge prefers, which in turn is based on either a judge’s grasp of technology, which is not always the same as, say, more attuned users, or the analogy that produces the desired result.

At Volokh Conspiracy, Orin Kerr has dredged up an old Kentucky opinion from 2003, United State v. Morgan, denying suppression of child porn. Yes, child porn was there even back then.  Morgan tried to eliminate the images from his computer, using a program called “Internet Eraser.”  His wife, who suspected what he was up to, used a program of her own that took a screen shot every 10 seconds. She wasn’t pleased with what she learned, and ratted her husband out.

While Morgan’s wife turned over his computer, and as a common user, consented to the search, the court added this:

By attempting to delete the images, Defendant relinquished any expectation of privacy he had in the images themselves. See California v. Greenwood, 486 U.S. 35, 37 (1988) (Defendant has no reasonable expectation of privacy in his curb-side trash). . . . [B]y attempting to delete the pornographic images, Defendant was in essence, trying to throw out the files. In that regard, the facts are similar to Greenwood and its progeny. For these reasons, the Court concludes that Defendant’s relinquishment of any reasonable expectation of privacy in the pornographic images by attempting to delete the images is an alternative basis for denying the suppression motion.

Yes, remember the old abandoned trash approach of Greenwood, except that the object there was actually abandoned trash? Are deleted computer files the same? Obviously not, but the problem is the resort to analogy to pigeonhole technology.

Whenever these issues arise, the geeks want to argue technical jargon while the government wants to pull out analogies involving horses and buggies. The reaction is often an approach that suggests that technology has killed any expectation of privacy regardless of who is engaged in the debate.

What’s interesting here is that this old opinion reflects how we now find ourselves  down a road where there is no winning, how the flawed comparisons have served to create a secondary body of law with regard to technology that wasn’t sound to begin with and, given how a bad argument once adopted blindly perpetuates itself, hasn’t gotten any better with age.

What are the chances that the courts will wake up one day and come to the realization that technology cannot be accurately analogies with anything, that it is a fundamentally different medium and requires a new, sui generis, approach?  About as good as the  court finally admitting that drug sniffing dogs aren’t magic.

The scholarship behind these decisions hasn’t helped much.

There have been  numerous  discussions  about the propriety of border laptop searches, as well as  Orin Kerr’s  theory of  technology neutral application of search and seizure law to new technology.

Tacitly applying Kerr’s tech neutral approach, the government and courts have circumvented the issues raised by these border searches via the use of analogy to old law, comparing a laptop to a suitcase or file cabinet.  Dan Solove at  Concurring Opinions  proffered an approach he calls 4th Amendment Pragmatism as a substitute, eliminating the Katz reasonable expectation of privacy test for “problems of reasonable significance.”  It seems that this intrusion would fail under either test, and is permissible only because of courts’ reliance on the rubric developed at a time when absolutely nothing comparable to a laptop computer was under consideration. 

At the time of these discussions, my guess is that fate of computers had already been sealed. Well before anyone was arguing over the propriety of using 4th Amendment analogies to explain what happens in microchips and people’s expectations, there were decisions like this, unknown at the time, that had already gone to a place where no court should have gone.

I would expect both academics and prosecutors to fundamentally disagree, that the evolution of law by analogy to new concepts, to new technology, is both the appropriate and necessary approach. It’s prudent. It modest, It promotes consistency.

And that’s why privacy, moribund before, was dead on arrival when it came to technology.

The next question, much like whether there is ever a chance that junk science, once allowed, can ever be eliminated from our legal mythology, is whether there will be any support within either academia or the bench to recognize that tech is new, different, and not fairly analogized to physical world comparison and old precedent.  Unlike dog hits, tech offers an opportunity where the courts won’t have to admit they blew it in the first place and embraced a ridiculous religious belief when there was woefully inadequate science behind it.

Tech changed. It changes constantly. Because of this, the courts can take the position that precedent can’t keep pace, that old analysis can’t be adequately applied, and that new changes in technology change everything.  In other words, there is a conceptual edge to stop our sliding down the slippery slope.

Or we can just throw privacy out with the deleted computer files.  But we didn’t have both in 2003, and if nothing changes, we will never have privacy in the age of technology again.

Judge  James Booras of the 19th Circuit of Illinois is both tough and sensitive. Just not in the right order. Via the Chicago Tribune :

Robert Ritacca said that when Judge James Booras heard his client missed his curfew by 22 minutes, the judge immediately agreed to a request by Assistant State’s Attorney Danielle Pascucci and raised the defendant’s bond.

“Raising bond” is a relative phrase. What Judge Booras did was raise bond from $2,000 to $75,000.  Ritacca explained that the defendant was 22 minutes late because his ride had been late. This would certainly justify a stern lecture about responsibility, as it was the defendant’s to be home by curfew regardless of whether his ride is late.  “Never cut it so close again, or you’re going to jail,” would seem appropriate.

Robert Ritacca didn’t take the increase well.

Ritacca said later that he told the judge that he thought the bond ruling was “ridiculous” — at which point the judge ruled that Ritacca was in contempt of court and fined him $500.

“So I said that’s also ridiculous, and they took me into custody,” Ritacca said.

Is it contumacious to call a judge’s ruling ridiculous? What about when it is ridiculous? Or would “outrageous” have been a better choice?  While the choice of words may not have been particularly persuasive in getting the judge to see that his ruling was, oh, less than justified, not every ruling, particularly ones that do grave and wholly unwarranted harm to a client, is met with “thank you, your honor.”

Booras then raised Ritacca’s fine to $1,000 and his client’s bond to $150,000, though Pascucci said the bond was raised to $200,000.

Pascucci said Ritacca “had his voice raised,” was being “disrespectful” and was “flailing his arms.”

There are limited choices available to defense counsel when something as absurd and wrong as this occurs. That’s not to say that venting one’s frustration and anger is necessarily the right choice, but sometimes it’s the only option available when something truly ridiculous occurs.  Plan B is to stand there, do nothing, and watch as they lead the defendant away in cuffs. Not particularly effective either. There is a habeas corpus, but even when it produces the correct result, days will have passed with the defendant in jail. The legal system has yet to figure out how to give a person those lost days back.

Robert Ritacca was no spring chicken, which no doubt contributed to his decision not to stand there like a deer in the headlights.

The Waukegan-based Ritacca, who said he has been an attorney for 33 years, said he was in custody for about 30 minutes.

“There is no contempt,” Ritacca said. “You don’t put lawyers in jail for arguing for their client.”

Not exactly. What I believe Ritacca means is that the judge shouldn’t put lawyers in jail for arguing for their client, even if the argument hurts the judge’s feelings by suggesting that he was less than a brilliant jurist for ruling the way he did.  Notably, Judge Booras later reduced the defendant’s bail to the originally ridiculous $75,000, apparently after he calmed down a bit.  After all, $150,000 was ridiculous.

That Ritacca’s calling the bond increase “ridiculous” may not have been effective isn’t the measure of valid argument. Criminal defense lawyers commonly make arguments that don’t prevail. It’s the nature of being on the wrong side of the room. But it doesn’t mean you don’t try to make a point, to fight.  Would it have been better had he framed his outrage in more judicious language? Perhaps, but that doesn’t make the word “ridiculous” less of an appropriate characterization. 

While the article doesn’t say, he may well have tried to argue the point as being unduly punitive and unjustified by the cause of the 22 minute breach. He may well have contended that his client shared the court’s concern and was deeply distressed by the inability to make it back in time for curfew.  He may have expressed his client’s lesson in relying on someone who wasn’t sufficiently reliable, and cutting it much too close. An error in judgement by the defendant. Criminal defendants do that sometimes, without meaning any disrespect to the court or evincing any intent to defy the terms of the bond.

But Judge Booras’ reaction to the word “ridiculous” reflected a lack of judicial temperament, an improperly delicate sensitivity to disagreement with his ruling.  Just as defense counsel have to get used to their arguments being rejected, judges have to be tough enough to have their rulings disputed. Even special little snowflakes in robes.

If Judge Booras didn’t appreciate Ritacca’s characterization of the bond increase as ridiculous, the solution is not to make ridiculous bond increases. This increase was not merely wrong, but outrageous.

As for Robert Ritacca, his willingness to challenge such an outrageous bond increase reflects the highest calling of a criminal defense lawyer, not to let his client get taken into custody without a fight.  There are no shortage of lawyers who can easily rationalize why they wouldn’t put themselves at risk on behalf of a client by pushing the envelope like this, but there are some who are bold enough and take the duty seriously enough to take a risk.  Ask yourself which type of lawyer you are.

If I had a medal to give, one would go out to Robert Ritacca. And if you don’t have the stones to do what he did, ask yourself why?

H/T FritzMuffKnuckle

Adam Liptak reported in the  New York Times that empathetic Latina Justice Sonia Sotomayor, who stated during her confirmation hearing that she favored the Supreme Court’s arguments being televised, has changed her mind.

She was singing a different tune a couple of weeks ago, telling Charlie Rose that most Americans would not understand what goes on at Supreme Court arguments and that there was little point in letting them try.

“I don’t think most viewers take the time to actually delve into either the briefs or the legal arguments to appreciate what the court is doing,” she said. “They speculate about, oh, the judge favors this point rather than that point. Very few of them understand what the process is, which is to play devil’s advocate.”

I know, Charlie Rose?  She’s Sonia from the block, so you can’t expect her to know better. But I digress.

Cornell lawprof  Mike Dorf takes on her change of heart, that “the fear that the public wouldn’t understand what they are watching” by “stating the obvious,” that the

worries cited would not come close to justifying a ban on video coverage of any other official government proceeding if the burden of persuasion were placed on those who wanted to prevent such coverage rather than, as the Justices seem to assume, placed on those who want to permit such coverage.

I went over to CSPAN.com and randomly clicked on a House Subcommittee hearing on regulating the domestic use of surveillance drones.  That sounds like it should be interesting, right?  I was bored to tears in seconds.  Okay, not quite tears but I was bored enough to stop watching and click on something else.  This seems to me to be just about all the harm that would be done from having more generally uninformed people watch proceedings in the Supreme Court: More people would discover that they generally find the work of the Court boring.  

Of course, no one is suggesting a “ban,” but rather an initiation of change. Nor is the Supreme Court a house subcommittee (or any other part of the legislative branch of the government).  Most importantly, there is no rule by which the decision to televise proceedings is made called the “Things that bore Dorf Rule.” 

While it may be true that most non-lawyers will find televised Supreme Court arguments a bore, that’s neither an argument for or against openness, except to the people trying to sell advertising. Can you imagine Supreme Court oral argument with commercial breaks, like the NFL? It’s really a pretty funny idea, cut to commercial, Clarence Thomas starts telling jokes, Kagan for make-up to get her nose polished, while Alito hits the green room for a donut.  But again I digress.

It strikes me that Dorf’s “boring” argument is not only irrelevant, but completely misses Justice Sotomayor’s point. The point of televising oral argument is to expose the working of the Supremes to public scrutiny, and exposure to public scrutiny, whether thrilling or boring, is justified if it enabled people to be more enlightened and knowledgeable about how their government functions.

Therein lies the problem.  Cornell Law School is the home of the Legal Information Institute, engaged in the worthy cause of bringing statutes and caselaw to the masses for free. By worthy, I mean that these things belong to us, done by our government officials on our dime, and are not, contrary to historic belief, the property of West Publishing or Lexis so that they can sell them to us at an absurd mark-up.

But there is a secondary, and far more dubious, aspect to the LII’s purpose. They harbor the  misguided belief that by making “the law” available to the public, it will enable anyone to play lawyer. As if a free copy of Grey’s Anatomy meant anyone could perform brain surgery, there was an unfortunate inferential leap that may have sounded fine in theory, but would prove disastrous in practice. When I challenged this blind leap of faith,  Bruce Thomas of LII didn’t take kindly to being questioned, and demonstrated why the library was a better choice for him than the courtroom.

What Mike Dorf may not realize is that there are a great many people deeply interested in the law, particularly criminal law, some bordering on obsessed. They won’t be bored. They will watch. They won’t understand. They will think they do. They will act upon it, whether by deed or screed. While Dorf likely doesn’t get a lot of comments at his blog expressing some of the craziest notions of what the law provides or allows, a brief trip to some non-lawyer sites on criminal law will be a revelation. They neither understand law nor process, but reflect the full force of the Dunning-Kruger Effect, with  confirmation bias thrown in for good measure.

As a result, providing greater transparency doesn’t illuminate for those who are deeply interested, but either bolsters misguided beliefs or enrages them. What doesn’t happen is that they learn from what they see or understand that they’re preconceived notions are wrong.  They are never wrong, but the court is when it doesn’t see things their way.

That said, I agree with Dorf’s ultimate position, that oral argument before the Supreme Court should be televised, even though he thinks people will be bored. While I doubt it will be particularly illuminating, despite the LII’s Utopian fantasy, it remains a core function of the judicial branch of government. In other words, it’s ours, for better or worse. I don’t doubt that Justice Sotomayor’s concerns are legitimate, but so what?

Even crazy people vote, pay taxes and drive cars on the same roads as the rest of us. There is no requirement in a constitutional democracy that people be well-educated or knowledgeable, and even the ignorant get to see what their government is doing. And that includes the justices.  So somebody watching will still insist that the gold fringe on the American flag means that the court is iLLegallY ConSTituted!!!   

More to the point, I doubt Dorf (or LII’s Bruce) realizes how many people still contend that the Supreme Court’s John Bad Elk decision, authorizing the use of deadly force against an illegal police arrest, remains good law.  And where do they find decisions like this? Why, they can find it at Cornell’s LII website, of course.
These are your fellow Americans, for better or worse. Citizenship isn’t contingent on whether their favorite loony tunes character is from Tasmania.

If there is a cure to the problem, it comes from those of us engaged in the practice of law, making as many of our friends and neighbors, clients and readers, more rather than less knowledgeable. If we stop enabling people from being crazier and angrier, we help to create a more enlightened citizenry, more capable of knowing about and exercising their rights and offering critical, but accurate, thought on the functioning of our government and particularly our legal system.

Yeah, it may be a bore, but at least we won’t be making people stupider. And if you won’t do it for me, at least do it for Sonia.

The Dayton police “knew” all about Jeffrey “On The Lam” Lam.  Oh yes, they knew him well.  We know this is true because the court said so.

The events which led to Lam’s arrest began when Dayton police officers approached his brother, Jeffrey Lam (“Jeffrey”), regarding a traffic violation. On the evening of December 12, 2011, Officers Michael Saylors and Randy Beane observed Jeffrey driving a gold Intrigue near the intersection of Hodapp and Lorain Avenues. The officers were familiar with Jeffrey from “a lot of history,” and they knew that Jeffrey and his brother, Timothy, had possessed firearms and drugs during past contacts with the police. Additionally, Beane knew that Jeffrey had fled from police two weeks earlier in the same car, because Beane had participated in the search for the vehicle. The officers knew from prior interactions that Jeffrey’s driver’s license had been suspended several times, and Beane knew from running Jeffrey’s license two weeks earlier that Jeffrey had been under suspension at that time.

Based on Jeffrey’s history of fleeing from the police, the officers’ desire to avoid a chase, and the officers’ knowledge that they were in the vicinity of Jeffrey’s home, which was located at 645 Creighton Avenue, the officers decided to follow Jeffrey rather than immediately initiate a stop for driving without a license and any other pending charges related to his flight from police two weeks earlier. (The officers did not know, at that time, whether there were any outstanding warrants for Jeffrey.) While following him, they observed a turn signal violation.

As soon as the lights were activated, both doors of the Intrigue “flew open,” and Jeffrey and another individual (James Farr) fled on foot. The officers pursued Jeffrey and Farr. Saylors tackled and detained Farr. After a brief chase through the neighborhood, Beane saw Timothy Lam (Jeffrey’s brother) on the porch of 645 Creighton and saw Jeffrey run from between the neighboring houses into 645 Creighton. Both men went into the house and closed the door behind them. The officers attempted, unsuccessfully, to kick in the door. Although the officers could see individuals inside the house, no one responded to their commands to open the door. The officers retrieved a battering ram from their cruiser and, using it, entered the house.

Note: It really wasn’t necessary to discuss the underlying facts at length to reach the issue of the holding of this case, but they were so comical that I would be remiss to deny any reader the lulz.

Under the facts of this case, however, the court concluded that a “wholly separate criminal act” from the turn signal violation occurred when Jeffrey “challenged the officer’s authority to lawfully cite a citizen found outside the sanctity of his home” by fleeing, and that this separate act justified the pursuit into the home.

“[W]e see no reason to differentiate appellant’s offense and give him a free pass merely because he was not charged with a more serious crime. The basic fact remains that appellant fled from police who were in hot pursuit of him and who had identified themselves as police officers.”

Some might suggest the reason is that the sanctity of breaching the home without a warrant is one of the few aspects of Fourth Amendment jurisprudence that remains relatively intact, absent some sufficiently serious reason to break down the door.  Not in Ohio.  The Ohio Court of Appeals was not entirely impressed with its own Supreme Court’s reasoning, but nonetheless applied the precedent.

What remains remarkable about this case is that the Lam brothers, given police claims of all the evil they were up to, were not the targets of an investigation premised on a warrant issued by a neutral magistrate upon a finding of probable cause that they were engaged in drug and gun crimes.  If the police “knew” about their evil deeds, then it would seem perfectly appropriate for the cops to go after them for their crimes.

But no. This was a pretext stop, a little lie that the cops play with citizens behind the wheel, where Whren kicks in so they can enjoy the fruits of investigative brilliance at the expense of a traffic infraction. Of course, Jeffrey Lam didn’t have to flee, nor take refuge in the home, but this is a case about Timothy.

While the Ohio Supreme Court might see it as a “free pass,” others may wonder why the police couldn’t wait outside the house for Jeffrey to emerge, or if they were in a rush, call in for a warrant to enter and seize this traffic non-signaler.  Or maybe homes in Ohio aren’t as worthy of protection as  Teddy Payton’s was in New York.

When the Supreme Court  granted certiorari to the Florida Supreme Court in Harris v. Florida, there were two possibilities. It could have been because they wanted to drive the final nail in the coffin of the dog sniff myth, seizing upon the Florida court’s revelation that we’ve been laboring under falsehood for decades that allowed the police, provided they brought a puppy with them, to have their way with us.

Or it could be what a unanimous Supreme Court, in an opinion by Justice Elena Kagan, last of Harvard law school, did.  Despite what we now know about the flaws of the dog sniff myth, the pseudo-science nonsense behind its pretense of reliability, the statistical reality that passing a dog past the target of a search is no better than a coin toss, and often worse, that it’s subject to the cue of a handler that makes any right of privacy evaporate in the face of a doggy alert, the myth cannot be questioned.

If a dog says the police can search, then search they can.

As the opinion has been out for hours already, Jacob Sollum at  Reason has already shredded its back end, while Orin Kerr at  Volokh Conspiracy has handled the front.  Somehow, the nine justices ignored the fact that the entire process by which a cute pup is elevated to a probable cause machine within a structure created, owned and managed by law enforcement. 

The  National Academies of Science saw through the mess, but the Supremes were blinded, perhaps by the doggy cuteness.  But then, those scientists are so stuck on facts and proof and method that they are often blind to the adorable things that tug at Kagan’s heartstrings.

The newest associate justice had the opportunity to make excuses either way, about why dogs failed so miserably in the field, where the rights of citizens were put to the test, or how controlled and effective the dogs were tested in the controlled environment of Police Puppy Training Institute.  She chose to favor the latter, and used her formidable rationalization skills to explain why reality to Americans whose privacy was lost wasn’t nearly as important as official certificates handed to dog handlers by police officials. 

But all was not lost, Justice Kagan explained.

A defendant, however, must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant, as the Solicitor General acknowledged.

It’s not as if the defense can do nothing about it, provided the trial occurs on a planet far, far away, where the fantasies of a scholar turned jurist take flight. In the imagination of a judge who has never dirtied her robes in the nasty trenches of a courtroom, defendant’s are fabulously flush with funds to fly in experts from far-away places to challenge this sniff.  And the government always turns over all its inside canine certification secrets, without lies, omissions, conclusory assertions or deception.

Nothing ever goes wrong in a courtroom. That’s because our system is comprised only of wondrous folks whose concern for justice trumps all else. That’s why you, citizens of this great nation, trust it so completely and without reservation.

For quite a while, the question of whether a coin toss with the lovely face of a puppy on one side and the sad face of a citizen being searched on the other was on the table.  There was science. There were statistics. There was the amorphous thing called probable cause, which offered what some Americans believes to be a greater than not chance that their rights would be honored even though the word “probable” in Washington was defined to mean something different.

In testing whether an officer has probable cause to conduct a search, all that is required is the kind of “fair probability” on which “reasonable and prudent [people] act.” Gates v. Illinois, 462 U. S. 213, 235. To evaluate whether the State has met this practical and common-sensical standard, this Court has consistently looked to the totality of the circumstances and rejected rigid rules, bright-line tests, and mechanistic inquiries. Ibid.

Whenever you see the words “common sense,” you can be assured of two things. First, that it is used to overcome a gap of logic that cannot otherwise to explained. Second, that you lose.

In this case, the court has embraced a practical approach to simultaneously avoid being rationally required to explain away the failings on the part of the government to demonstrate why the rights of people under the Fourth Amendment to be free of warrantless search and seizure should be eviscerated by a critter whose efficacy is an article of law enforcement faith, as well as avoid having to admit that it has failed for decades to prevent violations of the Constitution based on its love of junk science.

But more importantly, the use of dogs, whether real, by cue of their handlers, or simply by magic, has served the interest of our government so well for so long by providing a justification for searching people.  Plus, dogs are so very cute, lovable and friendly. What kind of a justice would serve our nation who didn’t love dogs?

The issue is now conclusively decided, at least for the next generation. Don’t blame the dogs.

H/T for the title of this post, @BoatFloating, which reminded me of the old joke about the agnostic dyslexic insomniac was up all night questioning the existence of Dog.

Robert Ethan Saylor was 24 years of age when he died of asphyxiation. His life probably wasn’t an easy one, having Down Syndrome, but it was his.  Even so, it was taken from him because a few police officers were just doing their job the same way they always do their job.

Via Z6Mag :

He was at the movies with a health aide the night of the incident. When the movie, Zero Dark Thirty ended, he refused to leave so employees called the police. Three deputies came to handle the situation. Saylor was handcuffed and was allegedly resisting when he had what authorities describe as a “medical emergency.” Better stated as, they found out he had down syndrome.

That last line is snappy, but wrong.  It isn’t possible the police had no clue that Saylor had Down Syndrome. He is the poster boy for it, with clear physical manifestations. While police may mistakenly think a deaf person heard their command before killing them, or a blind person could see the glint of their shield, there is no mistaking a person with Down Syndrome.



Whether the movie theater’s employees were correct in their handling of a recalcitrant moviegoer who refused to leave (or buy a new ticket) when the movie ended is one thing. No doubt in retrospect, they might have preferred to be more generous toward Saylor.  It’s unimaginable that they saw his overstaying his license as an offense worthy of death.

So the employees did what they were told to do, what most people do when they have a person who won’t follow their rules, they called the cops.

According to a law enforcement source, the 26-year-old went into distress when he was put face down on the ground. Deputies removed the handcuffs and took him to a hospital, where he was later declared deceased.

The details of death are a bit lacking. It’s not that nobody knows, but that the officers involved had something that Saylor lacked .

The deputies exercised their rights under the Law Enforcement Officers’ Bill of Rights and have not made statements in the case, Bailey said.

The deputies who were with Saylor at the time of his death, identified as Lt. Scott Jewell, Sgt. Rich Rochford and Deputy First Class James Harris, continue to work their normal assignments while the case is being investigated.

It’s not there isn’t law to protect people. Indeed, there is. It’s just that it’s not only far more favorable to police than to anyone else in our society, but it’s the one law that the police scrupulously honor. While the three officers who invoked their right to be left alone remain on the job, the rest of us scramble to know how a ticket dispute ended with Saylor’s death by suffocation.  It’s a horrible way to die.

Dr. George Kirkham a criminologist and former law enforcement officer told the Post , “The circumstances surrounding Saylor’s death suggest a possible case of positional asphyxia, which often goes hand in hand with a phenomenon called sudden in-custody death syndrome.”

“Positional asphyxia is typically the result of an intense struggle and often involves a person who is handcuffed and lying on their stomach after the struggle.” Kirkham says, “People often panic and can’t catch their breath. People with larger stomachs are particularly vulnerable, because their bellies will push into their sternums, making breathing even more difficult.”

This is why it’s important to note that the police officers could not possibly have been unaware that Saylor manifested the physical appearance of a person with Down Syndrome.  What isn’t said is whether Saylor, lying on the ground in a movie theater so that cops can subdue and cuff him in the manner that affords the police the greatest degree of personal safety was accompanied by the other normal conduct:  A knee with the full weight of an officer pushing down into the small of his back?  A officer sitting on his shoulder blades?  The ubiquitous boot pressing against his spine with a police officer’s heft holding him supine?

As we don’t know the details of what was actually done to Saylor now, the likelihood that we’ll ever know the truth is slim.  What we know with certainty is that a young man is dead over what amounts to a business dispute over $11, and some cops who did their job of protecting the theater’s financial interest by use of their routine method of subduing a man who obviously had Down Syndrome.

Some will think, “wow, just wait until the lawsuit where the family will win a fortune!” Others will cry for the cops to be fired or prosecuted for Saylor’s death.  When we speak of a person needlessly killed, the issue of remedy isn’t the point. The issue is why was a human being’s life lost.

It’s not easy going through life with a disability. It’s unlikely that Saylor ever knew the joy of a young woman’s loving touch. He probably didn’t have a posse to hang out with and watch the Ravens while chugging a few brewskies. When he shopped for clothing, chances are he wasn’t very concerned with whether members of the opposite sex would think the pants made his butt look fat.  Still, he experienced love, joy, satisfaction and accomplishment, even if not the same as other people.

This was his life.  And it was taken from him for nothing by three police officers who were just doing their job, even thougy they knew, they had to know, that they were dealing with a young man with Down Syndrome.

In  comments to a recent post here, MIT professor  Barry Kort eloquently expressed some thoughts I found distressing.

I lost faith in the System of Justice a long long time ago, partly on the grounds of empirical evidence, and partly on the grounds of analytical theory.

As I see it, there are a number of systemic problems that impede our objective of crafting a peaceable society through the Rule of Law.

The first problem is that we lack a unified consensus on what to criminalize, what to legalize, and what to regulate.

The second problem is that enforcement, arrests, prosecutions, trials, and sentences are erratic at best and corrupt at worst. Many thoughtful people have serious misgivings about the functionality, fairness, and rationality of the criminal justice system.

The third, and most insidious problem is that the Crime and Punishment model is inherently flawed at the conceptual level, and is mathematically incapable of achieving the objective of crafting a peaceable society, because the system’s main tool is the haphazard application of state-sponsored violence under the color of law.

Attorney General Eric Holder Jr. recently said that his top priority is to improve the criminal justice system.

The commission reported recently that in the 16-year period through fiscal year 2011, the annual number of federal offenders “increased substantially,” from 37,091 to 76,216. The commission previously explained that “excessively severe” mandatory minimum sentences added heavily to this increase and to overcrowding in prisons.

Always a curiosity, given the job of the USSC, that they would call mandatory minimum’s “excessively severe” while using them as the framework for offense levels.  What if, for example, the offense level for 50 kilograms of cocaine was set at 36 months, with enhancements for specific conduct? Sure, the mandatory minimum of 10 years would still apply, but not by the Commission’s hand. Did it occur to no one that they weren’t constrained by mandatory minimums when setting offense levels? Clearly not, as the numbers dovetail precisely with the “excessively severe” minimums. This isn’t an accident.

The Times then describes Eastern District Judge John Gleeson’s two recent, and bold, decisions in  Dossie and Diaz.

Federal judges are acutely aware of this issue. Judge John Gleeson of Federal District Court in Brooklyn, for one, has been a vigorous critic of mandatory minimum sentences.

The first sentence isn’t supported by the second. Judge Gleeson, whose career as a highly effective federal prosecutor would likely have cause many to doubt whether he was a good choice for an Article III judge, has consistently demonstrated a remarkable depth of understanding of the system and its flaws. He is not the norm. 

Whether, and to what extent, other federal judges share his views is something of a mystery. A few write opinions, make rulings and impose sentences that show they do. Most do not. Some are overtly hostile to arguments like Judge Gleeson, and adore the ease of use of the sentencing guidelines. A bit of basic math and another human being is whisked out of the courtroom to never be thought of again. Another case off the docket; a sentence that won’t be reversed.

This compounds the problem for low-level offenders, who make up 93 percent of those convicted of drug trafficking. Judge Gleeson called on the commission to fashion fair sentencing ranges based on an offender’s role and to reduce all sentencing ranges for drug trafficking by a third.

Like the statistics for rape, the statistics for drug offenders are suspect. Ask an AUSA and almost every co-conspirator is a major player. Ask a defendant and they’re just a cog in the wheel. But like those whose concerns are limited to the wrongfully convicted innocent, suggesting the guilty can rot in hell, the Times plays up the low-level offenders angle, even as Judge Gleeson knows better.  Reduce all drug sentencing ranges by a third. Not just the handful who are sufficiently sympathetic to warm a reporter’s cold heart, but all of them. 

The trouble with mandatory minimum sentences is that it is impossible to make them fair and just in every case. It’s time for the attorney general, Congress and the sentencing commission to reform this scheme.

By conditioning its argument with the phrase, “in every case,” the call for “reform” feeds the concerns of Barry Kort. But forget the New York Times’ editorial, and look instead to the real effort of an Article III judge, John Gleeson. As wiggly, confused and compromised as the unprincipled editorial may be, the two opinions of Judge Gleeson are precise and painstakingly grounded in reason.  

Barry Kort may feel defeated, that the system is beyond salvation and, even if it could be tuned up to function at its best, would still fail because the underlying concept, the Crime and Punishment model, is “mathematically incapable of achieving the objective of crafting a peaceable society.”  Maybe so. Maybe a new Age of Enlightenment will come and we will abandon this failed experiment in crime and punishment.

In the meantime, however, we have judges like John Gleeson, and we do better by continuing to fight, to argue, to persuade, others to appreciate and follow his lead. As long as defendants are prosecuted, we don’t have the luxury of feeling defeated and giving up.

An email arrived this morning soliciting my willingness to promote a book of war stories by a British Queen’s Counsel.  With a link to his Amazon page and the vanity blurb about his glory, he suggested that you, readers of SJ, might be interested in purchasing his book.

My response was:

While I occasionally do book reviews, under no circumstances would I ever blindly promote a book. People who want to advertise their wares for sale pay for the advertising.

Had my book been of interest to your readers I would have offered you a review copy.

However, with such a discourteous reply if you want a review copy you will have to buy it.

Few sounds are better to a defendant’s ear than the dulcet tones of a judge saying “case dismissed” because the arresting officer failed to appear for trial. Well, “not guilty” is better, but that puts the defendant through the cost and misery of trial. How wonderful to avoid it all. Except when the defendant is a Florida Highway Patrol trooper who’s conduct killed a woman, injured another and sent as 12-year-old hurtling through a windshield.

From the Sun-Sentinel :

Accelerating with no emergency lights, the trooper reached 102 mph in his Crown Victoria, heading toward a curve with a recommended speed limit of 35 mph, according to FHP records. Coming the other way was the Mitsubishi with two women and a 12-year-old girl, on their way home to Quincy after picking the child up from school, relatives said.

As [FHP Trooper  Detrick] McClellan reached the curve, he veered off the road, then swerved into the other lane and smashed into the Mitsubishi. Passenger Michelle Campbell, 51, died several hours later from her injuries. Campbell’s granddaughter, 12, flew through the windshield, and the other woman, her niece, suffered serious injuries, records show.

Why was McClellan racing down the road?

FHP Cpl. C. Brooks Yarborough investigated the crash and found McClellan responsible. Prosecutors declined to file criminal charges, determining that the trooper’s driving did not rise to the level of vehicular homicide.

“He responded to [the call] rapidly because that’s a dangerous thing, rocks hitting cars,” Willie Meggs, state attorney for the circuit that includes Gadsden County, told the Sun Sentinel. “We made the conclusion that there was a life lost, but he was trying to save a life.”

But McClellan wasn’t completely off the hook, as he was “cited for three traffic violations.” Harsh, right? 

Yarborough cited McClellan for careless driving, speeding, and failure to use his emergency lights — non-criminal traffic infractions typically punishable by fines.

A hearing was set for Nov. 5 before Gadsden County Judge Kathy Garner. Two hours before it started, Garner’s assistant got a call saying Yarborough wouldn’t be there, the judge announced at the hearing.

Of course, there is a history of “professional courtesy” in the FHP, suggesting that maybe the failure to appear was, say, calculated? But no, according to the cops. It appears that Yarborough had a “medical emergency,” and his failure to appear presented no issue.  On the other hand, he wasn’t the only trooper in the hearing room:

But when his case came up in court, the trooper who issued the citations wasn’t there. Another trooper in attendance said that though he couldn’t represent the agency, he would not object to dismissing the tickets, and the judge did just that.

McClellan walked out with no consequences, and even got handshakes from his fellow law enforcement officers.

After all, it was McClellan’s lucky day.

Not to be a bit cynical, but there is no aspect of what happened here that passes the smell test.  From the determination that McClellan at worst deserved a speeding ticket to the failure to appear for medical reasons to the failure to simply adjourn the hearing to another date.

Perhaps what happened here can be chalked up to a massive screw up, but the outcome of this case strains  Hanlon’s Razor to the breaking point.  Had the individual who caused the death of a woman and a child to be thrown through a windshield been anything other than a trooper, this would have not only been prosecuted as a homicide, but touted as the justification for a new law imposing a sentence of death plus cancer for speeding.

There is no shortage of people who have given up hope in the legal system, who believe that it’s so badly broken, so utterly fixed, such a total sham, as to either fall into despair or be ready to take up arms against those they believe are the perpetrators of injustice.  As much as we may point to those rare cases where the right result happens, whether it be the cop convicted or the defendant acquitted, we remain saddled with stories like this. 

Try as I might, there is absolutely nothing about what happened here that can be rationally explained or justified.  It’s the dream of every tin foil hat wearing conspiracy theorist, and the nightmare of every person who struggles to make the system work with integrity. 

Nice going, Florida. The cynics win. And you handed it to them on a silver platter.

H/T FritzMuffKnuckle