Texans are very possessive of their Castle, even if it means they have to shoot some teenage kid running away across a neighbor’s lawn in the back.  After all, if he didn’t want to get shot, he shouldn’t be on someone else’s property, they say. Not as easy for someone living in the Bronx, where you can’t get home without crossing someone else’s property.

For more than 20 years, the New York Police Department has maintained its “Clean Halls” program, a leftover of the crack days.  Back then, drug dealers would take over the lobby of an apartment house to use as their “spot,” or keep an apartment as a stash house.  Bronx apartment houses were particularly well suited for drug dealing, as they had an outer door, a vestibule and an inner door leading to a lobby, with two staircases and a nonfunctional elevator. It offered great security for drug dealers, who were competing for control of their block, and easy means of escape.  It was a blight that landlords couldn’t stop, and make life for other tenants horrible.

So the NYPD came up with a plan. Landlords signed affidavits that allowed the police free reign inside their buildings, and waived the rights of all who entered “unlawfully” to be stopped, questioned and searched. There was a small sign placed outside the building, but the same sign was essentially on every building.  There was no way to know who was entering unlawfully from who was there as a tenant or lawful guest without first stopping and demanding to know their business in the building.

The cops would lay in wait behind the inner door. When someone entered the vestibule, they would open the inner door and grab them.  There was no escape for the visitor or tenant, who was then questioned, if they were lucky, or thrown against the wall if they were not. They were asked who they were there to see, but that’s a tricky question in a borough where Spanish is more likely spoken than English, because the question often posed asked for a very different response according to how it was phrased.  In Spanish, it calls for a description (“Who are you here to see? My friend”), while in English, it called for a name.

The person in custody was then searched for fun and, if there was a bit of marijuana or a gun, arrested. If nothing, but the person gave the cops a hard time, they were arrested for the trespass. It would resolve with an ACD at arraignment, or at worst a disorderly conduct with time served, but the person would learn his lesson not to screw with cops. And if the person resisted, an occasional shot rang out from a service revolver.  And that was how they kept the natives under control.

More than twenty years later, it’s still happening.  While the arguable purpose of stopping the plague of crack has long been forgotten, it’s programs have since become a part of life in the Bronx. Tenants in Bronx apartment houses can’t get to their own Castle without crossing the no-man’s-land between the vestibule door and their apartment door.

On the street, they have the limited protection of other people’s eyes, maybe even someone’s video. Inside their building, there is no one to see what happens. It’s just them and two cops, and there is no way to reach their Castle without running this gauntlet. 

It never made any sense to me that one party, the landlord, could waive another party’s constitutional rights, and I argued this point many time to no avail.  While the landlord could prohibit entry into his building for those without legitimate reason to be there, he could not authorize police to seize and search another human being.  But crack times were bad times, and judges ignored my arguments.  Granted, my clients weren’t always the finest of people based on what came out of their pockets, so they didn’t enjoy much sympathy.

The Bronx District Attorney has decided he’s  had enough busts of tenants and legitimate guests under the “Clean Halls” program, where the same routine allegations appear in every complaint.  It’s another version of  Irving Younger’s observations about “dropsy” cases, where it had become so common that no one bothered to question them. Recite the mantra of trespass and it was close enough.  There a trial happening now in the Southern District of New York over the practice, and the  New York Times editorial says it’s time for it to stop.

But a hearing under way in Federal District Court in Manhattan is featuring an open and fiery dispute between the Police Department and an assistant district attorney from the Bronx, who has testified that her office began to have misgivings about the legality of some trespassing arrests as far back as five years ago.

The federal lawsuit, Ligon v. City of New York, was brought on behalf of people who say they were illegally stopped, given tickets or arrested on trespassing charges in apartment buildings, some in buildings where they lived. The suit focuses on the city’s two-decade-old “Clean Halls” program, under which police officers patrol private buildings with the permission of landlords.

###

The case could potentially go into next year. But the prosecutor’s testimony is strong evidence of the program’s problems and the Police Department’s failure to protect people’s constitutional rights.

‘* * * Policemen see themselves as fighting a twofront war

—against criminals in the street and against ‘liberal’ rules of law in court. All’s fair in this war, including the use of perjury to subvert ‘liberal’ rules of law that might free those who ‘ought’ to be jailed * * * It is a peculiarity of our legal system that the police have unique opportunities (and unique temptations) to give false testimony. When the Supreme Court lays down a rule to govern the conduct of the police, the rule does not enforce itself. Some further proceeding * * * is almost always necessary to determine what actually happened. In Mapp v. Ohio, for example, the Supreme Court laid down the rule that evidence obtained by the police through a n unreasonable search and seizure may not be used in a state criminal prosecution. But before applying the rule to any particular case, a hearing must be held to establish the facts. Then the judge decides whether those facts constitute an unreasonable search and seizure. * * * The difficulty arises when one stands back from the particular case and looks at a series of cases. It then becomes apparent that policemen are committing perjury at least in some of them, and perhaps in nearly all of them. Narcotics prosecutions in New York City can be so viewed.

Before  Mapp, the policeman typically testified that he stopped the defendant for little or no reason, searched him, and found narcotics on his person.  This had the ring of truth.  It was an illegal search (not based upon ‘probable cause’), but the evidence was admissible because Mapp had not yet been decided.  Since it made no difference, the policeman testified truthfully. After the decision in Mapp, it made a great deal of difference. For the first few months, New York policemen continued to tell the truth about the circumstances of their searches, with the result that evidence was suppressed.  Then the police made the great  discovery that if the defendant drops the narcotics on the ground, after which the policeman  arrests him, the search is reasonable and the evidence is admissible. Spend a few hours in the New York City Criminal Court nowadays, and you will hear case after case in which a policeman testifies that the defendant dropped the narcotics on the ground, whereupon the policeman arrested him.  Usually the very language of the testimony is  identical from the case to another. This is now known among defense lawyers and prosecutors as ‘dropsy’ testimony.  The judge has no reason to disbelieve it in any particular case, and of course the judge must decide each case on its own evidence, without regard to the testimony in other cases. Surely, though, not in every case was the defendant unlucky enough to drop his narcotics at the feet of a policeman.  It follows that at least in some of these cases the police are lying.

People v. McMurty, 314 N.Y.S.2d 194, 195-96 (N.Y. Crim. Ct.1970), (Younger, J.).

The more things change, the more they stay the same.  And yet we never heed George Santayana’s admonition that those who don’t remember the past are condemned to repeat it. And repeat it we do.

A series of collisions on the Long Island Expressway last week ended when a police officer, stopped to help the last motorist whose car was struck by an allegedly drunk driver, was hit by yet another car.  Nassau Police Officer Joseph Olivieri was killed.

While the driver of the car that struck and killed P.O. Olivieri was sober, the driver who caused the carnage, James Ryan, was arrested for drunk driving and the officer’s death.  Via Newsday :

Now Olivieri is dead and Ryan has been charged with driving while intoxicated and vehicular manslaughter.

Ryan’s car didn’t hit the officer, but authorities say his behavior ultimately led to Oliveri’s death. The courts can sort out whether vehicular manslaughter is the right charge, but society still must struggle with how to stop this insanity.

There is no question that the needless death of a human being is a tragedy, whether cop or not.  But rather than travel down the usual path of calling for people to exercise greater discretion, to make smarter choices and not drink and drive, this Newsday editorial goes in a very different direction.

We have the technology to install alcohol-interlock devices in every vehicle to prevent anyone who is drunk from driving. But if we believe putting alcohol-interlock devices in every car would go too far, then we must go further ourselves. Innocents killed by drunken driving have far more right to their lives than motorists have to drive without proving their sobriety.

Every car? Every person? Everyone?  The rationale sounds vaguely familiar, that “innocents” (and indeed, no one can blame the victim of a drunk driver for being the victim) have more right to life than motorists have to drive without blowing into an alcohol-interlock device.  But is the issue who has greater rights, or whether the right to arrive alive leads to the inexorable conclusion that everyone else’s rights must suffer?

On its surface, the editorial sets up a problematic argument, since no one takes the position that the lives of innocent travelers aren’t worthy of protection. Indeed, everyone on the road wants to make it home alive, and can well appreciate the notion of not being a drunk driver’s next victim. 

But it doesn’t follow that the answer to one problem is to place the burden on everyone else, all the people who bear no responsibility for the conduct of those who are engaged in the wrong.  By that line of reasoning, it would make as much sense to incarcerate us all for the drunk driving death, or perhaps do away with cars entirely.  Both would deter any further drunk driving deaths, and as long as we’re divorcing responsibility from the burden, isn’t that all that matters?

The editorial reveals its motives when it asks, “society still must struggle with how to stop this insanity.”  Every tragedy does not amount to “this insanity,” despite the current trend of reacting to each in melodramatic fashion and demanding a law to eliminate any possibility of harm to anyone in the future.  How long before “Oliveri’s Law” becomes the battle cry?

This isn’t to diminish or trivialize the harm caused by drunk driving, though anyone who isn’t part of stopping the insanity is accused of being in favor of people being killed by drunks, or at least indifferent to the death of innocents on the road.  This is the wedge that is used to shut down thoughtfulness in favor of a bludgeon to beat us all into submission.  This is the drunk driving version of “do it for the children,” the excuse used regularly in an appeal to emotion without regard to reason.

As I’ve written numerous times before, the problem of drunk driving doesn’t manifest itself in a crash, or the death of a police officer trying to help others.  The problem happens at the moment a person who has had too much to drink leaves the bar and sits down behind the wheel of a car.  What happens after that is merely fortuitous, whether the person makes it home safely and sleeps it off, or ends up killing someone.

The numbers of accidents involving alcohol are badly skewed, calculated in ways that make it appear that they are happening constantly when it’s simply not true, The hysteria that follows obscures the problem rather than illuminates.  The extraordinarily successful interest groups, led by MADD, Mothers Against Drunk Driving or whatever other perceived threat they want to eliminate, control the dialogue, from including alcohol in the bodies of the victims of crashes to the rumors of smells becoming proof of another drunkard.  It’s hard to find a meaningful solution when every discussion begins with stopping the insanity.

Yet, drunk driving is a problem that compels a solution.  Harm to innocents on the road is hardly a trivial concern, whether the raw numbers are massive or invented.  Police Officer Joseph Olivieri should not have died on the highway in the early morning, and even though the car that struck him was driven by a sober driver, the incident itself might not have happened but for alcohol.  It’s worthy of everyone’s concern.

The solution, however, is not to turn us into a society of presumptive drunkards, requiring proof of sobriety before our car will start. It won’t be effective, and will give rise to a wealth of unintended consequences, creating problems for people who are similarly innocent of any wrong, yet according to Newsday, held responsible because it’s a simple solution.

The answer isn’t to make all of society pay for the few, but to address the root of the problem without it being obscured by hysteria and appeals to emotion.  Newsday’s editorial may make for good drama, but does little to add to clarity of thought.  More importantly, the solution to individual impropriety isn’t to hold those who have done no wrong, and wouldn’t do wrong, captive. 

Like Newsday, I too think we need to stop the insanity. The insanity in this case is Newsday’s solution to the problem.

The video was outrageous. The attempted cover-up disgraceful. But was it one drunk cop gone bad, or part of a practice by the Chicago police to cover-up police misconduct?

After the beating of bartender Karolina Obrycka by then-Chicago cop Anthony Abbate, about which there is little dispute despite the controversial sentence of two years probation imposed by Circuit Judge John Fleming on former cop Anthony Abbate, there were allegations of bribes, threats and cover-ups.  Six years later, the case is coming to trial.

Via the Chicago Tribune :

When Abbate left, Obrycka immediately called 911, touching off what her lawyers contend was a cover-up by police concerned over one of their own.

Two veteran Grand Central District patrol officers responded and learned from Obrycka that her attacker was a Chicago police officer and that the entire incident was captured by surveillance cameras. However, the officers didn’t mention either detail in their report, according to the court records.

That same evening, Gary Ortiz, another Abbate friend and city employee, went to the bar to ask Obrycka not to press charges, according to the lawsuit. Ortiz relayed that Abbate had offered to pay for Obrycka’s medical bills and time off work if she did not complain to the department or file a lawsuit, her lawyers contend. Obrycka declined the offer. According to court records, the city has conceded that Ortiz’s action was an attempted bribe.

When that didn’t work, Abbate turned to threats.

He goes, ‘Believe me what I tell you.’ He said, ‘Your life, everybody in the (expletive) bar — this is, this is — I’m backed against the wall,'” a transcript quoted Chiriboga as saying. “‘I don’t give a (expletive). I did, I did that to Karolina,’ he said, ‘but I want the tape. I want the (expletive) tape.’

“He calls me — he tells me, ‘Do you love your brother?'”

In the same conversation, Chiriboga told Kolodziej that Abbate threatened to falsify charges or plant evidence if necessary.

“You tell Martin to get rid of that tape or there’s gonna be people getting DUIs,” she quoted Abbate as telling her, according to the transcript. “You might be driving with a pound of (expletive) cocaine on you.”

This was brought to the Office of Professional Standards, which is alleged to have whitewashed the investigation.

According to the lawsuit, OPS investigators did not follow up on the allegations of bribery and intimidation, didn’t conduct a meaningful interview of Abbate or recommend his suspension, and submitted incomplete evidence to the Cook County state’s attorney’s office.

“The OPS investigators set about a concerted and deliberate effort to minimize and conceal from public scrutiny the details and facts of the case,” the lawsuit said.

According to the Tribune, the City has a policy of refusing to settle cases involving misconduct by off-duty officers.  Karolina Obrycka’s lawyers say the cop have a de facto policy of covering up each other’s conduct, and they are going to put the Code of Silence on trial to hold Chicago responsible.

To prove their case, the Plaintiff’s intended to call an expert, Dr. Steven Whitman, a statistician and epidemiologist, to provide both quantitative and qualitative testimony to show that the police department treats cops differently than non-cops.  Chicago challenged his expertise, and  District Judge Amy St. Eve held that Whitman was qualified to provide quantitative, but not qualitative, opinion.

Dr. Whitman has no education, training, or professional experience in criminology, or in matters involving policing, the CPD, the ways in which citizens file complaints against Chicago police officers, the process by which the CPD investigates allegations of police officer misconduct, or the CPD’s disciplinary process. Indeed, at his deposition, Dr. Whitman admitted that he had never reviewed a Complaint Register (“CR”) file, and that he does not know — and has not attempted to ascertain — what constitutes a “proper” or “improper” method of conducting a CR investigation. (Citations to record omitted.)

The problem is that combining the education, experience and background to find an expert not only suitably educated and capable, but one who possesses the specific experience of dealing with the issues in a police department, and even more particularly the Chicago police department, isn’t easy.

Here, Dr. Whitman lacks foundation for his qualitative conclusions. Despite Dr. Whitman’s impressive credentials and experience as a biostatistician and epidemiologist, by his own admission, he knows nothing about police departments, police misconduct, investigations into police misconduct, or the process by which the CPD disciplines its police officers — the subjects that lie at the heart of this case. In response to the City’s questions on these points at his February 5, 2010 deposition, Dr. Whitman consistently admitted that his expertise lies in data analysis, and that what he was “trying to do in this [case] is display all the data [he] had, explain what it meant as well as [he] could, and not go beyond [his] professional expertise.”

Accordingly, Judge St. Eve allowed the plaintiff to offer Dr, Whitman’s expert testimony as to the quantitative piece, but would not allow him to draw inferences from the data to show that the Chicago Police Department engages in a de facto policy of covering up police misconduct.

Many will wonder why it’s not enough to show that Abbate’s beating was covered up. Unfortunately, the state of the law is that to hold Chicago liable, plaintiff’s must show it to be an accepted governmental practice under Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658 (1978). Since there’s obviously no written policy, the proof must come from the practice, and the practice isn’t so easily proved.

The court’s ruling raises a sticky question: Will the jury be able to draw the necessary inferences from the quantitative date provided by the plaintiff’s expert?  Data is dry, boring, often obtuse in its detail.  What data means isn’t always clear and obvious, and often requires a depth of understanding that jurors lack.  Dr. Whitman may well have the goods to provide the jury with everything it needs to conclude that the Code of Silence is alive and well in Chicago, but it remains up to the jury to draw the necessary inferences.

Given the video in this case, and the rather disgraceful conduct after the beating by Chicago police, the case won’t lack for a dramatic basis for the jury to appreciate the wrong done Karolina Obrycka.  Whether that will translate to a verdict that the City of Chicago had a policy of covering police misconduct has yet to be seen. 

But the trial appears likely to put the Blue Wall of Silence on trial, and will certainly prove interesting either way.

H/T FritzMuffKnuckle

Among the things I tend to care a bit about is the future of the profession. which has caused me to write about new lawyers.  Some regular readers hate it when I do this, calling me mean names like “curmudgeon” because I tend to say mean things about them.  Mean, when it comes to new lawyers, is defined as anything that doesn’t build their self-esteem.  Guilty as charged.

But if new lawyers feel compelled to express their thoughts publicly, they invite scrutiny. This isn’t always a nice, warm, tummy rub.  A while back Seth Godin, marketing philosopher, made this point as well.

Sooner or later, you’ll ask for something or read something or expect something and you won’t like what you get. You’ll feel like I wasted your time, wasted your money or didn’t meet your expectations.

Not just me, of course. Everyone. Even you. You will disappoint someone, and the organizations you depend on will disappoint you. Expectations keep rising, and promises keep being made. We keep bringing more magic into the world, but rising expectations mean that there’s more disappointment as well.

That’s part of the deal of being in the world.

I’ve been told that I disappoint readers with regularity. It’s the risk one takes in being a blawger, and the recognition that you can’t please everyone is part of the deal.  So the choices are take the risk or get out.

The alternative, I’m afraid, isn’t to choose a path where we make everyone happy and always exceed their expectations. Nope. The alternative is to hide, to fail to engage and to produce nothing.

My view of new lawyers is far longer term than most readers, especially the new lawyers themselves. When I started SJ, many of them had yet to be accepted to law school, much less practicing lawyers.  This isn’t the slur most of them perceive it to be, but mere fact. Still, it’s a fact that doesn’t enhance their self-esteem and so they resist it with all their baby lawyer might.

Over the years, I’ve tried to come up with a way of explaining to new lawyers why their self-esteem may not be nearly as warranted as they think it is.  One argument, that if they’re so incredibly brilliant at one year out of law school, then how will they be ten years out, twenty years out, strikes me as fairly clear. 

Yet this argument hasn’t made much of a dent.  They tend to chalk up the value of experience to a means of subjugation by older lawyers to keep the new lawyers down, to put them in their place. We lord it over the newbies because we have it and they don’t, not because there is any value to experience.

From this, they argue that we’re jealous of their savvy and fearful that they will steal our clients, and that’s why we go to such lengths to diminish their worth.  It couldn’t possibly have anything to do with a concern that they are publishing their thoughts and “advice” on the internet for the world to see, and their thoughts aren’t always as brilliant as they think they are. Indeed, sometimes they’re downright dangerous. 

They complain that older lawyers are condescending. I’m certainly guilty of that too. They say we’re not sufficiently respectful, civil and sensitive to their fragile self-esteem. Guilty.  But in my defense, it doesn’t matter how much you think you know now that you’ve passed the bar, filled your briefcase with brilliance and collected adoring fans on twitter.

We may be colleagues, but we are not quite peers.  Your pugnacious resistance to the value of experience belies the problem; old guys find it tedious to be required to rub your tummy and make you feel valued while trying to explain why your brilliant thoughts aren’t nearly as brilliant as you think they are.

Aside: Sometimes, experienced lawyers will email or comment that they don’t see this happening as much as I say, or that they don’t see it as being as much of a problem. This is where my longevity in the blawgosphere comes into play. For better or worse, I read a lot of other blogs, mostly because people send me links to new blogs because they want me to mention them or promote them. The more I see, the more I realize both the scope and depth of the problem. If you don’t see it, great. That doesn’t change the fact that I see it. Perhaps if you saw what I saw, you would think otherwise.

The long term perspective may help to illuminate why this is. Every year, another crop of baby lawyers suddenly appears, filled with the same sense of self-importance and the compulsion to let the world know their deepest thoughts.  And so old guys are constrained to repeat themselves to each new class, as if no one has ever before graduated law school and reinvented the wheel.

And like the class before you, you whine and cry and complain how we’re mean old lawyer and don’t appreciate you.  And like the class before you, you parry and riposte with the same arguments we’ve seen over and over.  And like the class before you, you want to insulate your world from the harsh voice of experienced lawyers telling you things you don’t want to hear.

It’s tiresome. There are some new lawyers on the internet who get it, but far more who don’t.  They write their little hearts out (see how condescending I can be?) and await the applause and adoration of their fans.  Should a curmudgeon stop by, it ruins their dream.  No one has ever been discouraging to them before, told them they aren’t the coolest lawyer ever, or at the very least, softened the blow by first telling them all the wonderful things they are.

Does this disappoint you?  It certainly disappoints me.  Welcome to the real world, which is filled with disappointment and critical scrutiny.  You can hide from it, but it’s still there.  What you need to do is be able to take a punch and keep on trying.  That comes with experience.

In the Pacific Standard, “crime author” Sue Russell attempts to explain the psychological phenomenon giving rise to the inability of police to admit that they’re wrong.  She begins by recounting the story of Michael Crowe, who was charged and ultimately exonerated for the murder of his sister, noting each of the red flags along the way:

Michael was told – falsely – that his 12-year-old sister’s blood was found in his room, that his hair was discovered between her fingers and that his voice stress analyzer test showed deception. Eventually, Michael cracked. He told detectives he had no memory of the crime, but he would be willing to make something up for them.

The desperate teenager’s taped confession is now infamous, heavily interspersed with red flags like: “OK, here is the part where I’ll stop lying.” At one point, veteran detective Ralph Claytor asked him, “How many times did you stab her?” “It’s going to be a lie,” Michael responded. “Three times.” “How many?” Claytor repeated. “Three,” said Michael. “It’s a lie.”

Blood or no blood, Claytor remained steadfast that the boys were responsible. In a deposition he gave five years after the murder as the Crowe family sued the city of Escondido over Michael’s ordeal, he said “Joshua Treadway and Michael Crowe said they did it,” said Claytor. “So I’d have to say that, since they’re the ones who told me they did it, they’re the ones who did it.”

According to psychologists, the intransigence on the part of the lead detective and others in the Crowe case was, as it was in the Marty Tankleff case both predictable and understandable. No matter if science can debunk old “evidence” used to win a conviction, no matter if overwhelming information is uncovered to prove an innocent was wrongfully imprisoned, some key players – detectives, prosecutors, fire marshals, et al – will cling to their long-held certainty about a suspect’s guilt.

“It’s always easier to recognize the mistakes of others,” cognitive neuroscientist Itiel Dror says of these often mystifying denials. “The problem we face,” says social psychologist Carol Tavris, “is not from bad people covering up their mistakes and not wanting to face the truth. It’s from good people who deny the evidence in order to preserve their belief that they’re good people.”

“It’s a mechanism that allows us to maintain a consistency between our beliefs about ourselves, which are usually positive – ‘I’m a good, kind, competent, ethical person’ – and the cognitive dissonance that is aroused when I, a good, kind, ethical person, am confronted with evidence that I did something incompetent, unethical, immoral, hurtful, or cruel.”

Cognitive dissonance, says Tavris, is unconscious mental conflict that arises when two attitudes, or an attitude and a behavior, or an attitude and new information, are incongruous with one another. We quash any contradictory or conflicting thoughts that pop up, she explains, because accepting them would mean accepting that the initial decision was wrong – something which makes humans, from detectives to doctors, uncomfortable.

Dror believes there are also reasons why criminal justice professionals’ intractability may be heightened. One factor: the more time, effort and money invested in an investigation, the more crucial it becomes to justify past choices. While that might seem equally applicable to those in business or public office, criminal justice professionals get a different kind of feedback.

“When they make errors it is not clear that they do because the actual truth is not known,” says Dror, “When a doctor amputates the wrong leg, then it is clear a mistake has happened. No way out! However, in the criminal justice system, the court gives a verdict but we never do know if it is correct or not.” Working in our adversarial justice system also plays a part, says Dror. “It makes admitting to error very hard – not only in the specific case, but the implication for future cases.”

Want readers for your blog?  Want twitter followers? Want to be a social media rock star?  Isn’t that the way to fame and glory?

As marketers construct a laundry list of simple “do’s” and “don’t’s,” usually in “top ten” format under the assumption that none of their target audience has an attention span capable of anything more, new lawyers are entering the social media universe daily.  They don’t want to be those pathetic people who nobody notices, who have no existence online. That won’t do at all. And so they seize hold of the bandwagon with both hands a get on board, hoping to accumulate rock star numbers overnight and, well, be somebody.

Welcome to the Amway Effect on social media.  Via Jure Klepic at HuffPo :

Has social media influence become nothing more than a giant multi-level marketing plan, much like Amway? …The one thing that has always been questionable about their business model is that the definition of success at Amway, and other companies like them, is not just being able to sell tons of products or building a great one-on-one personal business; it’s the ability to get others to sell products so you make money off of them.

The same thing is happening in social media influence. The definition of success is not just being able to influence others to take a certain action or to have others follow you because they believe in what you are saying. Success in social media has now become defined as having massive amounts of people following you. This is true no matter what steps you took to get those people to jump on your bandwagon.

This multi-level approach to building influence has gone to such an extreme that social media itself may now be at a crossroads, where one path leads to obsolescence and the other leads to relevancy. Unfortunately, many forces are already at work to make social media marketing become deflated. One example of this is the so-called “social media certification program.” Most industries have a trade organization where representatives from multiple companies get together and jointly develop industry standards that lead to a certification process. In social media apparently you just have to put together a program and say you are bestowing a certification for the low price of only $1198. No governing board, no statement of qualifications for those developing the program, and no actual perceived industry benefit for actually achieving this certification…just an opportunity to spend your time “learning” instead of doing, and to give your money to someone else.

Where do “instructors” for these “certification programs” come from? The link-building lists that propel people to the head of the instructor / speaker line can be manipulated as easily as a Klout score, simply by linking with each other. You, too, can become a leading expert simply by finding a group of like-minded people and inserting yourself on their list all the time. Google and SEO will take care of the rest when someone is looking for an “expert” source for their next certification program or conference.

Yet all of these serendipitous experiences flow from Eric’s blog, where incidentally, he breaks every “rule” about blogging written by the marketers. Eric doesn’t just limit himself to topics related to New York personal injury law or 200 fifty word posts that basically string keywords together.  He doesn’t outsource  his blog writing to ghostwriters or professional content providers.  He doesn’t tweet incessantly about every word that he puts up at his blog, or even blog every day like clockwork when there’s nothing to say. He doesn’t avoid expressing strong views that may potentially be unpopular with potential clients.

And guess what? Precisely because Eric breaks the blogging rules is why he’s found visibility beyond any marketer’s dreams. 

Remember the good old days before there were television commercials touting a cure for restless legs syndrome, a malady that never before existed?  Meet the Taser version, excited delirium syndrome, coming to a courtroom near you.

The Diagnostic and Statistical Manual of Mental Disorders, however, does not recognize excited delirium as a condition. Consequently, neither does the American Psychiatric Association. The association referred questions about excited delirium to Dr. Howard Zonana, a psychiatrist at Yale University.

“At the moment, I don’t see a lot of support for it,” Zonana said. “It’s usually an exclusionary diagnosis. If you can’t find anything else, then you say that.”

But if someone dies following being tased, expect excited delirium syndrome to be the cause of death.

Whether excited delirium, by itself, can kill someone is controversial. Taser International says it can. Whenever the manufacturer catches wind of an arrest-related death involving a Taser, the company reaches out to the investigating medical examiner and suggests he or she consider the condition as a possible cause of death.

In the 1990s, when Tasers use spread across police departments nationwide, so did research into the cause of death by Taser.

During that same decade, neurology professor Deborah Mash began researching excited delirium at the University of Miami.

[Taser spokesman Steve] Tuttle has suggested medical examiners contact Mash when conducting an autopsy on someone who died after being shocked by a Taser, for information on excited delirium. In an email to the Vermont State Police regarding Mason’s death, Tuttle referred to Mash as “the lead researcher on this matter.”

While Marsh has served as Taser’s paid expert, she says her research was not funded by Taser. Rather, her claim is that she invented a cause of death that no one before believed existed.

Mash also says excited delirium can kill. She has provided paid expert testimony on the condition in lawsuits against Taser International, but says the manufacturer has never funded her research at the University of Miami’s Brain Endowment Bank.

“Back at the beginning, when I was called in as an expert, people did not believe in the condition of excited delirium,” Mash said in a phone interview this week. “Now they do.”

The problem is that excited delirium syndrome is purportedly a psychiatric condition. One of the curious aspects of mental illness is that it can’t be determined post-mortem. Even among those who accept its existence as a condition, its use as Taser’s go-to cause of death can’t be explained.

[Psychiatrist Terry] Rabinowitz, while recognizing excited delirium as psychiatric condition, questioned its lethality.

“What you’re likely to be dying from is whatever is causing the delirium itself,” Rabinowitz said. “Do people die from depression? No. They die from the consequences of depression.”

He also questioned how a doctor would go about diagnosing someone with excited delirium, postmortem, in an arrest-related death involving a Taser.

“I don’t have those skills,” he said.

Marsh, who defends her disease, argues that it’s not her fault that it isn’t susceptible to proof by scientific method.

Asked whether the act of subduing someone experiencing excited delirium might contribute to his or her death, Mash responded: “You can’t do the experiment. … You can’t put people into states of excited delirium.”

So how does excited delirium, on its own, kill?

“The trigger is in the brain,” Mash said: A chemical defect causes the nervous system to crash.

“That’s what kills,” she said. “These feedback loops that regulate and normalize the brain and the heart fail. … The heart just shuts down.”

Nor can you induce anyone to die as a result of being tased in order to show it’s real, because that would result in the death. Any volunteers for the experiment?  So rhetoric substitutes for science, nothing new to the courtroom, and bingo, a new cause of death is born and explains why it’s not Taser’s fault.

The rationale tends to be based on police accounts of their victims being in an agitated state prior to the tasing, which suffers from the fact that it relies on the shooter’s assessment of events and an exculpatory bias.  The very justification for using the Taser in the first place serves to simultaneously explain away the connection between tasing and death.

Ironically, even if it’s true, a very dubious assertion given its birth alongside the Taser industry and lack of medical evidence for its existence, it doesn’t alter the fact that Tasers trigger death in agitated people.  After all, there is no shortage of people being tased who aren’t agitated, and the whole less-than-lethal notion of using a Taser as the weapon of first resort so an officer doesn’t have to spend too much time on the call or risk getting his uniform soiled flies out the window when the likelihood of death as a result increases.

But don’t expect Taser to shoulder the blame for dead people at the end of its prongs.  If it can be chalked up to excited delirium syndrome, then the victim has no one to blame but himself.  And isn’t that really the core explanation of all harm suffered at the hands of the police?

H/T FritzMuffKnuckle

GUILTY!   GUILTY!   GUILTY!

DO YOU BELIEVE HIM?

“The prosecutor’s misconduct was flagrant, ill intentioned and we cannot conclude with any confidence that it did not have an effect on the outcome of the trial,” Chief Justice Barbara Madsen wrote for the majority in an opinion released Thursday.

The prosecution, on the other hand, didn’t see why this was a problem.

Prosecutor Mark Lindquist said he thought the majority made a bad call.

“The majority opinion is correct in recognizing that prosecutors are quasi-judicial figures,” he said. “We have a duty to seek justice and be fully professional. The opinion takes a strange turn, though, in finding reversible misconduct because a former deputy prosecutor superimposed the word ‘guilty’ on a PowerPoint slide with a booking photo.

“This was unnecessarily melodramatic, but did not affect the outcome.”

They remain confident given what they characterize as overwhelming evidence against the defendant that they will obtain a conviction on retrial, and they may well be right.  But that’s hardly the point.

There is fair argument, grounded in the admissible evidence in the case, and the prosecution and defense are entitled to present that argument to the jury.  They may argue for a conviction or acquittal based upon the evidence. They may ask the jury to return the verdict they seek.  What they can’t do, however, is put on a donkey show having no bearing on the evidence and reflecting nothing more than an “unnecessarily melodramatic” personal opinions.

Oh yeah. And they can’t use an image to shift the burden of proof to the defendant by making it appear that it’s his duty to persuade the jury of his innocence.  That too.

“A prosecutor could never shout in closing argument that ‘Glasmann is guilty, guilty, guilty!’ and it would be highly prejudicial to do so,” Madsen wrote. “Doing this visually through use of slides showing Glasmann’s battered face and superimposing red capital letters (red, the color of blood and the color used to denote losses) is even more prejudicial.”

The dissent didn’t adopt the prosecution’s use of technology, but rather found the evidence so overwhelming that the error was harmless.

Justice Charles Wiggins wrote the dissent.

He agreed Hillman “improperly expressed a personal opinion about Edward Glasmann’s guilt” but said he would have only overturned the defendant’s second-degree assault conviction, letting the other three stand.

The evidence was so overwhelming on the other counts that Hillman’s PowerPoint likely played no part in the jury’s decision to convict Glasmann of those crimes, Wiggins wrote.

Harmless error analysis is the bane of the defense, as its perspective is circular and the ends justify the means.  The court takes the view that since the evidence against the defendant which is derived out of an unfair or improper trial is so strong that, in the court’s view, the absence of error wouldn’t change the outcome, why bother to put everyone through the trouble to get it right? 

The failure of harmless error analysis is that if the trial was conducted properly in the first place, perhaps the evidence would have come in differently, or not at all, or subject to doubt, and not been as damning to the appellate judge as it is after an unfair trial.  It may not always be the case, but as a matter of doctrine, harmless error is about as fundamentally unjustifiable a basis to sweep impropriety under the rug as there can be.

In order to overcome the hurdle of harmless error analysis, the majority held that the egregious conduct in the closing argument precluded their having confidence in the verdict. That they were constrained to hold this is a reflection of the inanity of harmless error. It’s not enough that the defendant was denied a fair trial. It’s not enough that the prosecutor engaged in “flagrant, ill intentioned” impropriety.  It’s not enough that the trial judge allowed this to happen. 

The notion that due process requires that a defendant be afforded a fair trial, without regard to whether the evidence against him is overwhelming (according to some appellate judges), should be more than good reason to reverse a conviction where it just didn’t happen.  It’s disingenuous to pretend that trials are glorious things where every defendant has the right to challenge the prosecution to prove him guilty, but after being denied a fair trial, be constrained not merely to demand that his constitutional rights be honored but that he’s otherwise worthy of a fair trial.

Of course, nothing in the decision says that the defense can’t put together a really cool powerpoint with the words “liar, liar, liar” superimposed over the cop’s photo.  Food for thought.

H/T WSJ Law Blog

Some youthful anarchists bashed the door of the federal appellate courthouse in Seattle on May Day.  There were  protests, demonstrations and smashed bank windows. The government doesn’t like its doors bashed, and likes anarchists even less, causing a substantial investigation into the identities of the bashers, including an  early morning SWAT raid on a house that might have contained “anarchist and anti-government materials.” 

Early on the morning of July 25, residents of a neighborhood in northeast Portland, Ore., were awakened by the sound of a battering ram plowing through the front door of a small house. Inside, the sleepy young occupants stumbled out of bed as FBI agents rushed in with assault rifles.

Leah-Lynn Plante, a thin, tattooed woman who volunteers at a bookstore that specializes in anarchist literature, shivered in her underwear in the backyard as a SWAT team hauled out computers, clothing, books and artwork — looking, the agents said, for evidence of who participated in this year’s May Day demonstrations in Seattle that saw smashed windows at banks and clashes with the police.

Last week, Portland resident Leah-Lynn Plante spent the first of what could be more than 500 nights in prison for refusing to testify before a federal grand jury about people she might know who might have been involved with the political vandalism in Seattle on May Day.

Plante has not been charged with a crime. In fact, the court granted her immunity, meaning she could not invoke her Fifth Amendment right against self-incrimination. Lawyers for two other grand-jury resisters—Matt Duran and Katherine Olejnik—have argued that the jury’s questions about their acquaintances and housemates violate the First and Fourth Amendments. The court has decided that their silence is not protected by the First, Fourth, or Fifth Amendments.

As federal marshals prepared to take her away, Judge Jones reminded Plante that “you hold the keys to your freedom” and that she could be released at any time if she chose to “exercise your right to provide testimony.”

It was an odd turn of phrase—the same judge who, that morning, legally blocked her from exercising her right to remain silent was sending her to federal detention for not exercising a “right.”

Minutes before Plante’s hearing, her attorney, Peter Mair sat, brow furrowed, in the courthouse lobby. Mair worked for years as a federal prosecutor—he’s indicted the Speaker of the House of Representatives, has prosecuted mobsters, and is familiar with how grand juries work.

But given the way government attorneys are using grand juries now, he said, “you could indict a ham sandwich. Defense attorneys are not allowed in, other witnesses are not allowed in… They’re going to send this poor girl off to prison for a year and a half. And the great irony is that the one guy who pleaded guilty to the crime served—what? Forty days?”

One of the anarchists protesters was identified and prosecuted at the outset, and received a sentence of about a month.  Like it or not, this was pretty light weight as federal crimes go.  Not that a month or so in jail is fun, or that it’s of no consequence to be saddled with a federal record when you’re young and full of vigor, but it’s the price one pays for anarchy. 

Plante, on the other hand, can be held for up to 18 months for her contumacious conduct.  Bashing a door is one thing; refusing to be a forced snitch is far more serious.  If courts don’t enforce their orders with brutal abandon, then people won’t do as they command.  That would never do.

It’s not that the judge is wrong on the law here. It’s pretty basic stuff. But regardless of whether you approve of her politics, you’ve got to admire the fortitude of a young woman sitting in a federal detention facility rather than be forced to snitch on her friends. Especially when so many macho men are tripping all over each other to rat out their brothers at the first opportunity, desperately trying to exercise their “right to provide testimony.”

Sorry, but that’s the law. And the law is the law.  From the Chronicle of Higher Education :

The state’s Office of Higher Education has informed the popular provider of massive open online courses, or MOOC’s, that Coursera is unwelcome in the state because it never got permission to operate there. It’s unclear how the law could be enforced when the content is freely available on the Web, but Coursera updated its Terms of Service to include the following caution:

Notice for Minnesota Users:

Coursera has been informed by the Minnesota Office of Higher Education that under Minnesota Statutes (136A.61 to 136A.71), a university cannot offer online courses to Minnesota residents unless the university has received authorization from the State of Minnesota to do so. If you are a resident of Minnesota, you agree that either (1) you will not take courses on Coursera, or (2) for each class that you take, the majority of work you do for the class will be done from outside the State of Minnesota.

But [Minnesota Office of Higher Education policy analyst] Ms.[Tricia] Grimes said the law the letters refer to isn’t new. “This has been a longtime requirement in Minnesota (at least 20 years) and applies to online and brick-and-mortar postsecondary institutions that offer instruction to Minnesota residents as part of our overall responsibility to provide consumer protection for students,” she wrote in an e-mail.