It’s become sadly common for criminal defense lawyers, busily puffing themselves by twitting about their days filled with exciting and remunerative work, engaged in some silly vanity program one day and starting a serious trial the next.  It makes me cringe, wondering why they weren’t spending their time preparing. 

Preparing. Another archaic concept.

In Lockport, New York, a defense lawyer found out the hard way that preparation matters when it turned out he was the only person in the room who hadn’t bothered to watch a video of his client’s interrogation.  His client was charged, along with two others, in the shooting of another human being. A serious case. Even for those lawyers who only think effort is worthy of exertion on serious cases, this one met the bar.
 
From the Buffalo News :

Meanwhile, co-defendant Paul E. Buck Jr., 23, asked for a new lawyer.

Assistant Public Defender Matthew P. Pynn said in court that Buck told him he lacked confidence in him.

When presented Tuesday with Buck’s vote of no confidence in Pynn, [Judge] Murphy at first said, “I have a great deal of confidence.”

[Det.] Conti testified in an evidentiary hearing Oct. 2 that Buck never asked to stop the interrogation. Murphy said that was belied by a 70-minute DVD of the interview, which the judge said showed Buck asking repeatedly to leave.

Two weeks ago, Murphy asked if either attorney had actually watched the video. He said, “If I were to make a decision on this record, the defense attorney would be subject to a claim of ineffective assistance of counsel if there were a conviction.”

But moments later, the judge conceded, “Under the circumstances, I can see how Mr. Buck would come to that conclusion.”

It likely comes as a surprise to those who think old lawyers are just mean-spirited and unhelpful to younger lawyers who come for validation of their wants and desires, but I get a fairly regular stream of lawyers calling for advice.  Even though they know there is a risk they won’t get the answer they want, they still call. And I do my best to be honest and helpful, even when I know it’s not what they want to hear.

But it’s not that often that I get a call from a lawyer who has been in the game more than ten, fifteen years, so when Brian Tannebaum told me he had a serious question, I figured he meant it.  I settled into my chair and listened.

Brian has a great practice.  A mix of state and federal criminal work. A mix of criminal defense and bar disciplinary cases. A reputation of skill and effort, for which he’s well respected.  He does well, even if he suffers the same ups and downs that every small or solo practice endures. Revenues can be spotty, and hot months are followed by cold months, always wondering if the month after will be hot again. That’s solo life.

The dilemma Brian faced was one that a great many lawyers would love.  A biglaw firm wanted him.  What should he do. 

He left the question hanging.  He didn’t give me any further indication of why he was asking me, whether he just wanted a sounding board or whether there was something I could bring to his thought process that might not be on his radar.  I decided that the best I could offer was the perspective of an older lawyer, one who could only see 18 years of practice in the rearview mirror.

There was a time, way back when, that a call came in asking whether I would be interested in hooking up with a law firm.  At the time, I was still climbing the mountain, enjoying the struggle to see what could be accomplished and looking forward to the bright lights ahead of me.  Midlife still seemed far away, and the future was mine for the taking.  I had already tried a bit of law firm life, and it was unpleasant, to say the least. 

Having my choices, my decisions, subject to other people’s approval felt like a lead weight on my back.  Dealing with personality conflicts, whining, complaining, jockeying for position, wasn’t my idea of practicing law. Who needed to deal with all that crap, when fighting it out in court was where all the fun was?  And there was no more money for doing so.

Sure, the revenues evened out better with more lawyers, as each brought in cases at different times, and one lawyer’s low month was another’s high.  But at the end of the year, it was pretty much even, and all the aggravation that went with managing people was a burden for which there was no reward.

Some of my friends also got the call, and went with it.  Today, they sit in corner offices down the end of long hallways.  Some haven’t seen a courtroom in years.  They manage. They advise. They send young soldiers off to war and pray they come back unharmed.

Some still try to get into the courtroom as much as possible, hoping to feel that burst of adrenalin when they’re offered the opportunity to give the jury an opening statement.  But they have to get back to the office for conference calls, feeling their blood pressure level off and their butt flatten.

At 40, the idea of sitting on conference calls and listening to associates whine about assignments is like death.  The bright light fades to a fuzzy glow; you know it will always be there but it will never be bright again.  From there, it’s just waiting until the last meeting when they hand you the gold watch and carry the box of your life to the waiting car.

At 50, however, it looks a little different.  This was the perspective I could offer Brian that he wouldn’t be able to see on his own.  The thrill somehow disappeared one morning, as you wake up and find parts of your body hurting that never hurt before.  You’ve done enough openings. Closings. Crosses. More importantly, you hear yourself explaining things to potential clients that you’ve said too many times before.  The novelties of youth have grown old.  It’s not that you don’t want a challenge, but that you reached the peak of the mountain.  That was it. The rest of the time would be standing there.

I told Brian that the great moments of solo practice would lose some of their luster soon.  Not that a “not guilty” verdict wouldn’t thrill him, but that the thrill wouldn’t last much past the next day.  I told him that hanging out in bars and restaurants with clients until the wee hours of the morning would give way to wishing you were in bed by 10 because you’re exhausted.

The thrill of scoring the next big case diminishes, while the knowledge that there will be a check every other week becomes comforting. A couple of kids in college, the cost of maintaining the big house and a few cars hangs over you.  Where before you felt compelled to accumulate the things that bring you pleasure, you begin to wonder why you need all this stuff, and what you’re going to do with it.  You begin to feel as if it owns you rather than the other way around.  And big kids need big things. And eat a lot more than little babies.

But when this realization hits, that there is virtue in stability and a slower pace, a funny thing happens.  You’re no longer the up and coming young buck with a proven track record and a glorious future. You’re a fixture, a known quantity that’s hit his stride. You’re too expensive for the investment, and can’t promise enough good years left  to guarantee that a significant investment will pay off. 

I told Brian that when he reaches my age, there won’t be a call from Biglaw asking him to come aboard.  His opportunity to make the change is now. 

I neither advised him to take the job or pass. I tried to give him a flavor of what the future might look like so he could make his decision with an understanding that you don’t stay 40 forever, and that life brings changes in perspective and concern.  No one told me that when I was younger.  I passed on a few opportunities, firms, bench and teaching, that had little luster at the time but are far more attractive today. It’s not to say that I made the wrong choice, but that I made a choice without a clear appreciation of how life looks after the bright light fades.

Brian turned down the offer.  Whether he made the right choice for him won’t be known for another decade or two. I hope my thoughts helped him to decide. 

A verdict was returned in the trial of bartender Karolina Obrycka, beaten by off-duty drunken Chicago cop, Anthony Abbate, and the police culture that covers up criminal conduct by cops, the “Code of Silence.” The jury found against the Code of Silence, awarding Obrycka $850,000..

Her attorney, Terry Ekl, heralded the verdict as a landmark, precedent-setting decision.

“We proved the code of silence at every level of the Chicago Police Department,” from the first officers who responded to the beating to then-Chief Phil Cline, Ekl said after the verdict, adding that the jury’s award is more than twice the $400,000 he offered to settle the case for before trial. He noted the ultimate cost to the city will be far higher once he and his team collect their attorney’s fees.

After the verdict, [Mayor Rahm] Emanuel’s spokeswoman, Sarah Hamilton, said in a statement that the mayor is confident that the superintendent he selected, Garry McCarthy, and his leadership team “would not approve of, let alone participate in a code of silence.”

At the same time, the city’s law department issued a statement that the city strongly disagreed with the verdict and all but promised an appeal.

During the civil trial, Obrycka’s attorneys alleged that police sought to downplay and cover up the beating, in part out of an ingrained but shadowy culture among police of protecting their own. They said that culture created an environment that led to the beating.

Posted by Smeared1 on Wednesday, November 14, 2012 06:39 AM Pacific  Report Abuse

“The question now becomes, `What are they going to do about it?'” he said. “If there’s going to be change, it has to come from the mayor’s office.” No, Mr. Dumbass Attorney, the Mayors Office can’t make them do a damn thing! What would the order be? Don’t keep a secret….kind of tough to prove if it’s kept isnt it? Your client looks like a run of mill skank.

Posted by smmerbreeze on Wednesday, November 14, 2012 06:58 AM Pacific  Report Abuse

Regardless of what she may “look like” smeared, she didn’t deserve to get her ass kicked. He beats her and you insult her? Classy.

At the Agitator, Radley Balko writes about how Chicago city spokespeople  recorded interviews with journalists without their knowledge or consent.  While that alone wouldn’t likely cause anyone to lose sleep, the point is that this is a crime under Illinois law for which Chicago police have  shown no reluctance to arrest and prosecute people when it comes to recording their antics.  When done by government workers, not so much.

If you work for the government and you violate a the law in order to record journalists who cover the government, you get a gentle “reminder.” If you’re someone like Michael Allison, Tiawanda Moore, or Christopher Drew and you violate a bad law in order to expose government abuse, you get arrested, cuffed, jailed, and charged with felonies.

But what’s a double standard among friends, right?  In the course of the city’s attempt to rationalize away the “mistake” made by their people, however, this came out:

While City Hall acknowledged the two improper September recordings, it insisted they were mistakes.

“What we have told city employees is that our position is that you follow the law,” City Law Department spokesman Roderick Drew said Friday. “And when this issue was brought to the city’s attention, we reminded employees to continue following the law.”

Follow the law? Continue to follow the law?  Rahm Emanuel’s got some ‘splainin’ to do.

In order to “continue” to follow the law, one would have to follow it in the first place.  That anyone in government would utter the words that their position is to follow the law raises a shocking question: was this really in doubt?

The issue raised by the need for such an admonition is fundamentally disturbing. What could possibly give rise to a belief by anyone serving in a governmental capacity that they are entitled to ignore the law? 

Obviously, police understand as a practical matter that they can largely do as they please, since who will arrest them for blowing through a red light to get to the donut shop?  But even the dopiest flatfoot knows he’s not supposed to do it. It’s just a perk of the job, like free coffee and tossing black youths.

But the mayor’s spokesmen are supposed to appreciate that they don’t get to violate the law at will, even if the law is asinine.  And yet, a Law Department spokesman had to tell them otherwise? 

Radley’s point, that the same conduct that resulted in citizens being arrested, cuffed and prosecuted is trivialized as a mere “mistake” when conducted by people who enjoy a Chicago paycheck, feeds anger and cynicism.  And it should.  This is what distinguishes public servants from overlords, and a government that openly shrugs off crime by its own people while prosecuting its citizens forfeits its legitimacy.

At the very least, however, the City of Chicago should demonstrate sufficient shame to admit that its people deliberately broke the law rather than merely were confused as to its official policy of whether they had to follow the law at all.

The only thing that would make this worse is acknowledgement by the citizenry of Chicago that they can understand this “mistake,” as if public employees following the law was a toss-up question.  It’s not. It never was. It can never be.  And yet, it was necessary to make this clear, because city employees maybe thought they didn’t have to follow the law.

If anybody wonders why there are a lot of people who aren’t as trusting of government as the platitudes suggest they should be, this might give them a clue.  Or maybe nothing will give them a clue.

As much as people assume that there will be punishment of some sort down the road for abusive or lying cops, the reality is that little, if anything, happens except in the most extreme cases. The dreams of huge jury awards for violations of civil rights don’t pan out. It’s far more likely that a case will be dismissed on summary judgment than the victim will get enough money to buy a mocha frappucino.  But not always.

At the trial of Allen Harris’ claim against Police Officer Alex Tellez, not only did the jury award the plaintiff $1.6 million for injuries suffered (note, not for rights violated, but physical injury), but they levied a $90,000 award against Tellez personally.  From the LA Times :

Allen Harris, 56, was awarded nearly $1.6 million Wednesday in Los Angeles County Superior Court for his injuries, marking the latest in a long string of seven-figure verdicts against the Los Angeles Police Department for officer misconduct.

On Thursday, the jury returned to court and took the somewhat unusual step of ordering the accused officer, Alex Tellez, to pay an additional $90,000 himself after finding “clear and convincing evidence” he acted maliciously toward Harris, according to court records.

All of the officers testified that they did not know who had handcuffed Harris, according to both juror Gayle Chavkin and Harris’ attorney. The officers also claimed under oath that Harris, a stroke victim who walks with a pronounced limp, showed no signs of being disabled during the encounter, the attorney and juror said.

“It was the same testimony over and over and over: ‘I don’t recall. I don’t recall,’ ” Chavkin said. “They were clearly just closing ranks…. It felt untruthful to us. Somebody matching Officer Tellez’s description handcuffed Mr. Harris that day and hurt him.”

The verdict stems from a November 2009 case in which the LAPD was investigating an armed robbery of a store where one of Harris’ sons worked. The son was a suspect in the crime, and the detective investigating the case obtained a warrant to search the Inglewood apartment Harris shared with his son.

When officers serving the warrant knocked on the apartment door early Nov. 10, the son answered and was quickly taken into custody, Harris and his attorney, V. James DeSimone, said in an interview. Officers then entered the apartment and ordered Harris to put his hands up, turn around and walk backward toward the officers, Harris said.

Harris put his right arm up and told the officers repeatedly that he was unable to follow their commands because of his disability, he said. Ignoring his pleas, an officer Harris later identified as Tellez clamped a cuff around his left wrist, pulled him out of the apartment and forced both his arms behind his back to fully handcuff him.

In ordering Tellez to pay the $90,000 in punitive damages, Chavkin said jurors felt “we needed to send a message that this is not right — don’t ever do this again. We felt there needed to be a consequence for him disregarding Mr. Harris’ pleas.”

Alternate Title: Handing a loaded gun to children.

I swear I don’t go looking for problems, but somehow they find me.  A relative sent over a series of documents purchased online, the core of which was a special needs trust, and I was asked to take a look.  The documents were purchased from a business that was certified as a “legal document preparer,” the principal of which had proud experience selling cars bearing high-end marques.  He was not a lawyer, and at the end of his small-print disclaimer, admitted so.  He was offering no legal advice, he said.

The fee for the documents was, well, high. Very high, given that these were fill-in-the=blank forms, prepared once and then resold to anyone willing to pay.  It was not substantially less than had these documents been obtained from a lawyer, who would have been capable of providing legal advice, but the seller gave the impression that purchasing the docs from him would be substantially cheaper.  And, he explained, anybody could fill in the blanks, so there was no need for legal advice.  A purchaser could beat the system.

When the docs came to me, they were already filled in. They were lengthy, which is always very impressive to a non-lawyer who can feel weight far easier than quality.  But the fact is that the docs were surprisingly good, well-written and comprehensive.  They came with instructions that were also quite good.  In fairly straightforward language, they explained what the docs meant and what role the various named positions played.  Some of the language in the docs was off, and there were small mistakes, but given the whole, it was excellent work.

And it was a looming disaster.

The existence of fill-in-the-blank documents is hardly as new as its supporters think.  Bloomberg sold legal forms decades ago at stationary stores, which contained all the expected verbiage for basic legal documents.  They were always available for the public to buy, though most of Bloomberg’s customers were lawyers.  You would buy a pad of 50 general releases, or an envelope with all the papers needed for an uncontested divorce. 

Some business owners used the forms for their recurring needs, but for the most part, people left the forms to the lawyers. They understood that the form wasn’t the value, but the advice as to what form to use, how to fill in the blanks, that distinguished the lawyer’s work from the piece of paper.

Testamentary documents are among the most serious legal papers around, not only because they protect our children, but because they can’t be fixed after the testator dies.  Screw up now and it’s too late later.  My relative put names into blanks that seemed to make sense at the time. In doing so, the documents would have created a situation so unwieldy as to be functionally useless, and enormously expensive merely to cover the expenses required by the choices. 

There was a fine set of docs. There was no concept of how to create a cohesive and viable plan to make them work properly. It was a tool without the understanding of how to use it. This is the Utopia of legal futurists, where every person can be their own lawyer with an online form and a printer. It’s a lie.

The virtual lawyer concept was exposed by the success of takedown lawyer David Blade. Not because the virtual lawyer concept didn’t necessarily work, but because David Blade didn’t exist.  It may make your life as a lawyer easier, and enable you to run a practice from Starbucks, but it allows David Blade to do the same. If you care only about what’s in it for you, then you likely couldn’t care less that on the internet, nobody knows you’re a dog.

The sale of legal forms is part of the transparency notion that is so heavily promoted, that if we put all the statutes, caselaw and forms on the internet, people can be their own lawyers. Because any idiot can correctly understand the law. It’s easy. Just ask anyone, and they’ll tell you.

To the extent it might require some additional insight, as if lay interpretation of law might not always be sufficiently clear and precise, the futurists tell lawyers that we should spend out days explaining it to non-lawyers so that they can play lawyer for themselves. The non-lawyers will like us more if we do that, we’re told, and the banks will accept their deep appreciation in lieu of repayment of school loans. Well, maybe not.

Lawyers are expensive. People would much prefer not to pay for legal advice, and the notion is being promoted hard that they shouldn’t have to. It’s a commodity, they’re told. It’s easy. It’s their law, so why should they need lawyers to explain it to them or do it for them? 

The people doing this talking haven’t spent a lot of time holding hands and wiping away tears of real people, who explain that they thought they knew what they were doing but, well, were absurdly wrong. And are now stuck in disastrous litigation, or have so badly screwed up an estate that could have been easily handled. Or are under water on a home with a mortgage that they could never afford to pay. It seemed so easy at the time. It make so much sense to them. And it produced a disaster.

Criminal defendants and their families explain their understanding of the law to us all the time. They have for years. They watch TV, and have what they consider to be a pretty good idea of how things work. And then there was the old lady on the corner who knows all about stuff. They tell us their understanding. And they are utterly clueless.

The law isn’t easy. It isn’t clear. It two lawyers and a judge can’t agree on what the law means, why would a non-lawyer be able to do so?  The law has developed over centuries, and embodies a lot of odd rules (think “fertile octogenarian”)  that only make sense if one understands the context and history. Non-lawyers don’t, and so they couldn’t possibly know that the rules exist or why. They aren’t supposed to know. And yet, they are being handed forms and told that they are just as capable of handling their legal affairs by themselves. And they believe.

We are setting people up for massive failure by telling them a lie. People who naively believe that non-lawyers can manage their legal affairs just fine with a little help are leading them down the path to failure and misery.  Remember all the gurus who ask, “has any client ever been fooled by what a lawyer says online”?  Ask David Blade’s clients.

And when the realization that this fool’s panacea has failed them, left people in misery because they had blanks to fill in without the knowledge to understand how and why, the same non-lawyers who think they got one over on lawyers will hate us even more, blaming us for having lied to them when they were told they could do it all by themselves.

Endnote: This won’t affect my practice, so it’s no skin off my nose if non-lawyers buy their forms online and gain their “knowledge” from websites that offer information they don’t understand.  I have no horse in this race and say this, against a tidal wave of marketers, futurist, technophiles and academics, who are leading non-lawyers to disaster.

Carlos Miller, who has been perhaps the most important chronicler and advocate for filming and photographing police, was arrested (for the second third time) in Miami for not being sufficiently obsequious to the cops.  And for the second time, he beat the rap. 

The prosecutor’s summation in the case offers a valuable insight into the problem.

The most telling part of my trial yesterday, besides the continuous lies under oath by Miami-Dade Police Major Nancy Perez, was when a frattish looking prosecutor fresh out of law school named Ari Pregen tried to explain to jurors how a “real journalist” was supposed to act.

A real journalist, he explained, was supposed to follow police orders without a second thought. A real journalist would never back talk to police. A real journalist would never question a direct police order as to why he was not allowed to stand on a public sidewalk.

No doubt Assistant State Attorney Ari Pregan, 2010 St. Thomas Law grad  admitted to practice in Florida on November 30, 2011, is sufficiently brilliant to opine on how real journalists are supposed to behave. And he made his argument plain: Real journalists do what they’re told.

Fortunately, Carlos’ lawyer, Santiago Lavandera, offered a different perspective on how “real” journalists behave:

“In this country, when you’re a journalist, your job is to investigate.

Not to be led by your hand where the police want you to see, so they can hide what they don’t want you to see.

No, when you’re a journalist, a real journalist, it’s your job to go find the truth. As long as you are acting within the law as Mr. Miller was, you have the right to demand and say, ‘no, I’m not moving, I have the right to be here. This is a public sidewalk, I have the right to be here.’

He did his job. He has the right to do his job the way he sees fit. It’s not up to these prosecutors to tell anybody, much less an independent journalist, how to do their job. It’s not up to the police officers, it’s not up to a judge or the president.

In this country, journalists do their job the way they see fit.

What’s he describing is Cuba. What he’s describing is a communist country. The government says you can’t be here because I say you can’t be here.

And it’s infuriating to me that a prosecutor would try to get up here and try to convince you that just because a police officer says something, that he has to bow his head and walk away.

That is a disgrace to the Constitution of this country.”

The student at the center of the latest storm is Alex Myers, an exchange student from Australia who worked as an intern in SUNY Oswego’s Office of Public Affairs (OPA). Myers was also enrolled in an advanced-level course in SUNY Oswego’s journalism department. For one of his class assignments, Myers was given the task of writing a feature on a public figure. Myers chose SUNY Oswego men’s hockey coach Ed Gosek,

The next evening, Myers received a hand-delivered letter from SUNY Oswego President Deborah Stanley, informing him that he was being placed on interim suspension, effective at 6:00 p.m. October 19, and that he would have to vacate his dorm room by that time. The letter also banned him from all campus facilities and informed him that he may be subject to arrest if he came on campus. 

Among the behaviors that merit this charge are “harassment,” “intimidation,” “threats,” “conduct which inhibits the peace or safety of members of the College community,” and “retaliation, harassment or coercion.” The charges further stated that:

Specifically: Campus network resources may not be used to defame, harass, intimidate, or threaten another individual or group.

As much as people think lawyers should be able to stand up in court and expound on any point that serves their cause, the reality is that we are limited by this quaint concept called evidence.  Evidence is stuff that comes from things that a judge accepts as being sufficiently reliable to submit to the factfinder, or the words of a sworn witness. 

When the point requires a witness to offer an opinion or example to make or clarify a point, the witness has to be determined to possess sufficient expertise to be worthy of expressing an opinion.  Contrary to public perception, everybody is not entitled to an opinion in a courtroom. You have to know something first, unless you work in law enforcement, in which case expertise in all things necessary to convict is assumed.  It’s harder for the defense.

Ohio lawyer Dean Boland was an expert witness in child porn cases. Why, and what qualified him, isn’t entirely clear, but he was.  From Wired :

Attorney Dean Boland purchased innocent pictures of two juvenile girls from a Canadian stock-image website, then digitally modified them to make it appear as if the children were engaged in sexual conduct.

Boland was an expert witness for the defense in a half-dozen child porn cases and made the mock-ups to punctuate his argument that child pornography laws are unconstitutionally overbroad because they could apply to faked photos.

Usually, evidence prepared for court is immune from liability, civil or criminal, provided it’s properly related to an action.  Otherwise, it would be impossible to perform basic functions, such as playing child porn to a jury in order to prove the basis of a charge against a defendant, whereas playing it under other circumstances would be criminal.  One would think the same true of Boland’s mock-ups, used only in his expert testimony.  Apparently not.

As a result, in 2007 he found himself the defendant in a deferred federal child-porn prosecution in Ohio, even though his exhibits helped clear at least one client of child-porn-related allegations. Now, a federal appeals court is upholding a $300,000 verdict in a lawsuit brought by the parents of two of the girls whose images Boland doctored.

And the Sixth Circuit upheld this award despite the fact that the images were never seen by anyone outside of a courtroom, and the child models (and their parents) in the stock photos never knew about it until the FBI paid them a visit to inform them.

Boland argued that he was immune from such a lawsuit because, among other reasons, he’d created the images for use in court, never distributed them, and that the First Amendment protected him.

But the court ruled that it was immaterial that Boland never displayed the images outside of court and never transmitted them electronically.

“The creation and initial publication of the images itself harmed Jane Doe and Jane Roe, and that is enough to remove Boland’s actions from the protections of the First Amendment,” the appeals court ruled.

It remains far beyond my comprehension how any person finds child porn titillating. It is fundamentally disgusting and repulsive. Yet, overbroad laws, even in the realm of child porn, must be addressed, making this perhaps the only justifiable basis for the creation of fake child porn, so show how easily a porn can be manufactured that doesn’t involve any sexual conduct by a child.

Given that Boland was prosecuted (even though it resulted in a deferred prosecution) and held civilly liable for damages, what is the likelihood of anyone being willing to take the witness stand in the challenge to a vague and overbroad law?  And if they don’t take the stand, there is no evidence upon which to argue the cause. 

In upholding the damage award, the 6th Circuit offered this rationale:

In today’s digital world, any image is “primed for entry into the distribution chain” of underground child pornographers. Hotaling, 634 F.3d at 730 (citing Osborne v. Ohio, 495 U.S. 103, 110 (1990)). Even if Doe and Roe never see the images, the specter of pornographic images will cause them “continuing harm by haunting [them] in years to come.” Osborne, 495 U.S. at 111. As a result, it is immaterial that Boland never displayed these images outside of a courtroom and never transmitted them electronically.

The “specter”?  Specter is a scary word, but meaningless. How will it harm them? How will it haunt them? The children in the images Boland used would never have known had the FBI not knocked on their parents’ doors and told them. No one, outside of the courtroom, would have ever seen the simulated images but for the FBI flashing them to the parents. If there is a specter here, it’s wearing an FBI jacket.  If anything haunts these parents and children, it happened at the hand of the FBI. 

Should Boland have created these simulated child porn images at all?  The fact is that it’s enormously more powerful to make a point through physical examples, images, then just words. The effectiveness of Boland’s testimony was certainly far greater because he could show, not just tell, his point. 

Was it fair to the two innocent child models of the stock images used to create simulated porn? No.  Perhaps he could have gotten images from someone with permission, or used his own children’s pictures for that matter.  The children in the stock images didn’t ask to become part of Boland’s testimony, and the idea that their images were morphed into child porn is, well, deeply disturbing at best.  So it was a poor choice.

But was it worthy of criminal or civil liability?  As long as the images never made their way from the well of the courtroom to, well, anywhere else in the world, then the answer has to be no. Even though it was a bad move, no one was harmed by it, and no damages were suffered. Indeed, more suffering ensued from the FBI’s conduct than Boland’s. 

And yet, the next time the defense needs an expert witness in a case involving child porn, what are the chances that anyone will be willing to take the risk, or able to provide sufficiently effective testimony to make this nuanced legal point?  Unless they are prepared to pay up $150,000 per child, slim. Slim, indeed.

H/T Fritzmuffknuckle

 

I am not a fan of tattoos, but that’s just my sensibility. Your mileage may vary. Despite tats not being quite my taste, there is one thing they are not: a terrorist threat.  Except in Minneapolis, where spokesman Sgt. Bill Palmer (where  have I heard that name before?) saw it clearly:

“The tattoo is certainly a new one,” said Minneapolis police spokesman Sgt. Bill Palmer. “It’s a new one on me. … This threat certainly isn’t subtle.”

The “threat,” which Hennepin County police learned about from the Facebook page of 20-year-old Antonio Frasion Jenkins Jr., who thought all those hits were from people who liked him, was neither pretty nor, as Sgt. Palmer observed subtle.  From the Star Tribune :

The tattoo on Jenkins’ left bicep depicts a person holding a semi-automatic handgun with the barrel of the gun partially in the mouth of a pig, according to a criminal complaint. The tattoo includes the officer’s name (although it’s misspelled), his badge number and an expletive directed at police. The Facebook post on Jenkins’ page also includes a message about the tattoo: “My tattoo iz a pig get’n his brains blew out.” According to the criminal complaint, 18 people gave the post a “thumbs-up” (or “like”) response

And he paid to have this done to him. Notably, the expletive wasn’t just any expletive, but a “vile” expletive. That certainly changes things, causing the prosecutor to put on his serious face.

Hennepin County District Attorney Mike Freeman said: “It’s real and it’s serious.”

And so, Jenkins was charged with incredibly poor judgment in permanently defacing his body “making terrorist threats (for the benefit of a gang).”  Nowhere in the article is there any suggestion that the whole courtroom had a good laugh, and Jenkins was released and given a ride home.  To the contrary, Jenkins was a gangbanger, and tats on gangbangers are much more threatening.  If pictures could kill.

Into the breach stepped the ACLU.

The ACLU’s [Chuck] Samuelson says no.

He conceded that police have a known bad guy who is indicating strong disapproval of this police officer. “But to make the stretch to terroristic threats is a big leap,” Samuelson said. “For terroristic threats you have to brandish a gun or a gun lookalike. … Basically we have someone making fun of the police.”

“Bad manners, you bet,” he said. “Criminal? No.”

What distinguishes this arrest, this charge, isn’t that a delicate police officers whose feelings were hurt by a person who cursed in his presence and made him feel badly about his choice of careers. That happens regularly, and cops wrap it up in a pretty bow with a few added details of conduct that, if not proven false by video or witnesses, makes out the arguable existence of an offense. 

Here, however, there is no additional allegation of any action by Jenkins, aside from some bragging about his tat.  This time, the police felt that the mere image, the existence of this tattoo, was enough to establish a crime.  They didn’t even try to bury their true feelings in claims that make out a putative offense.

This is bad. That the prosecutor didn’t laugh at it and tell them to go have a cup of camomile tea is bad. That the judge didn’t rip the prosecution a new one for having wasted the court’s time, that is bad.  Bad, bad, bad.

And that a person, even an alleged gangbanger (a status so hated by police as to itself be tantamount to a terrorist threat even in the absence of any conduct that constitutes a crime) is being prosecuted because an incredibly ugly image on his body makes the cops feel angry and hurt, not to mention disrespected, goes well over the line.  There is no crime here, except against good taste. 

And when the mere existence of expressive speech so offends the cops that they deem it worthy, in itself, to establish a crime, and the rest of the system goes along with it as if it wasn’t batshit ridiculous, we open a whole new door to the criminal justice system, things that piss off police and things that make police frightened.

Sticks and stone, cops. Now go drink some tea and let Jenkins loose.  If he’s such a bad guy, he’ll eventually do something that will actually justify an arrest. In the meantime, he already has to suffer the indignity of this butt-ugly tattoo. Isn’t that enough?

H/T Ed at Blawg Review

In the past week, Carolyn Elefant wrote a post at My Shingle  promoting the idea of new lawyers charging $99 per hour, and then a second  addressing some of the criticism of the idea.  At its core, her point was that it’s better to make a barely livable wage than starve.

Short term survival matters, even if it comes at the expense of longer term concerns.  It’s not that the idea is a good one, but rather that a young lawyer who earns enough to survive today has a chance to do better tomorrow.  If he doesn’t survive, then what difference does the future make?

But the mindset behind survival isn’t limited to lawyers.  It’s become the American way, and it repeats itself in almost every aspect of the fabric of our lives.  Consider that a poll found that 30% of Americans are willing to undergo TSA cavity searches if it means survival.  Forget, for the moment, that survival for lawyers is hard economic fact, while survival for airplane travelers is a product of mindless fear.  To the person who believes, it’s real.

Via Turley :

The survey was conducted online by Harris Interactive on behalf of Infowars from November 5-7 among 2059 American adults. People were asked: “Given the recent reports concerning the threat posed by terrorists who plan to implant bombs within their own bodies, how willing, if at all, would you be to undergo a TSA body cavity search in order to fly?” Thirty percent said yes.