A few years ago, I gave a talk to a nice bunch of in-house lawyers at SuperConference in Chicago about how to prepare for being the target of an investigation or indictment.  Afterward, some of the lawyers came up to me and told me that it was a good talk, but they were the wrong crowd.

Things like this don’t happen to lawyers like us, I was told.

And even if they thought it might, it’s not like they or their companies would be willing to commit and any time, effort or, most importantly, money to preparation. They were in the business of making money, not spending it. It was bad enough that the GC wasn’t a profit center; as if they could budget more money in anticipation of problems that nice lawyers never face. Ain’t happening.

At Above the Law, David Mowry wrote a post abut Lauren Stevens, an in-house counsel at GlaxoSmithKline.

Ms. Stevens was not the VP of legal affairs, she was one of many. Just like all those financial “VPs” on the prowl in Wall Street bars. She received a subpoena-like request from a department within the FDA that has no subpoena power. The request asked 15 broad questions, and GSK agreed to comply.

Now, in-house is a bit different than Biglaw in that we don’t immediately start to figure out how to fight or quash such requests. I receive subpoenas all the time, and it’s usually no big deal. We’ll do a risk analysis for the company, and most times the subpoena only tangentially involves us, and we’ll agree to comply. I will call up the AUSA, or other relevant contact, and ask how we can assist. Often, they want some documentation regarding a fraud investigation or illegal exportation practices by a third party. We have an interest in stopping such practices due to the implications for the company, so we readily agree to assist.

So let’s review. She responded positively and diligently to the inquiry. She put together a crack team of attorneys and outside counsel to assist in responding. She maintained open lines of communication with the agency. And when mistakes were discovered, they were disclosed, rectified, and steps were taken to avoid the same mistakes occurring. What happened next is not only frightening, but wrong and unjust.

Before getting to the heart of the matter, let me say that I forgive  Greg Lambert for not understanding. There’s no reason why he would, as the law librarian for King & Spalding, where he’s cloistered from the problems, aggravation and harm.

It’s like trying to describe the taste of a food you’ve only seen from a distance.  It may look delicious, and you assume it tastes as good as it looks.  But there is no way to understand what it actually tastes like.  But then, he’s not entirely wrong either. 

The hashtag hecklers on the other hand, aren’t exactly coming to this with clean hands either. They are not doing anything illegal in their heckling, and in fact, they feel as though they are actually giving the LMATech conference a dissenting view from what is being tweeted from the conference.

However, it is heckling, and not just dissent that is being voiced by those calling BS on the LMA. It’s pretty clear that the dissent is out to discredit the message and the messengers, and when it becomes personal like that, it takes on a mudslinging effect that suddenly gets very nasty. It gives those of us outside the argument something that amounts to entertainment, but not really anything of real value comes out of these types of arguments.

As Greg half-realizes, he’s on the outside.  He thinks it’s about his amusement. He thinks he can tell its purpose from a distance based on what it means to him. 

This is about some childishness that I and others engaged in during the Legal Marketing Technology Conference in San Francisco.  As is usually the case with such things, attending marketers used a twitter hashtag, #LMATech, to twit about the conference.  Its glory. Its genius. Its wonder.

This is among the fabulous marketing tools that legal marketers use.  And because it’s all on twitter under this hashtag, it’s available to all the world to read. Iif you’re so inclined, to twit about as well. I was so inclined, at least for a couple of hours.

But I didn’t do so for Greg’s amusement, though he learned about it because others were amused and retwitted about it.  Ironically, some of the attending marketers retwitted the “heckling” twits as well (maybe not realizing the absurdity of what I was saying, as it’s hard to distinguish the ridiculous from the real in legal marketing),  and followed the hecklers on twitter. From a safe distance, it was just some immature amusement to disrupt the pleasant flow of mutual-admiration twits amongst the marketers, sharing their deep marketing knowledge with cool ideas like

That, however, isn’t why I did it. Nor is it why Brian Tannebaum did it, though I don’t speak for Brian. Or a bunch of other lawyers who engaged in what Greg calls heckling.

He’s right that we don’t care much for legal marketing.  It’s not as simple as it might appear to the outside, though.  There are knowledgeable, competent people who help lawyers and firms market, who are concerned about ethics and competence rather than the newest way to perpetrate a fraud on the public while taking money from foolish and desperate lawyers.  But these marketers have no reason to go to #LMATech.

There are also a large group of people who want to take money from lawyers for marketing. They neither know nor care about ethics, and are the first to tell lawyers how to market by lying. They want to learn tricks to give the appearance of having something to sell to lawyers. These are the marketers who openly twit that it’s more important for a lawyer to market than be competent. After all, marketing makes money, and money is all that matters to them.

Among those marketers who were involved, the hashtag allowed them to spread their message publicly.. The worth of their message is in their mutual appreciation and adoration; they twit about it publicly so the world can see the work they do, individually and collectively, and appreciate their excellence. When it’s disrupted by someone who tells them their baby is ugly, the it ruins not only the joy of the moment, but disrupts their message.  To the marketer disrupted, the person is a heckler, ruining the show.

Hecklers have no higher purpose.  This is what Greg fails to understand.  But I don’t blame him, as there would be no reason for him to share the concerns of the hecklers since he’s the law librarian at a large law firm, where he will never meet the client scammed by deceitful marketing, or the desperate lawyer whose last dime was sucked away by a sham marketer.

Larry Bodine, on the other hand, has no excuse. When he took over as Editor in Chief of Lawyers.com, which certainly must have paid far better than his own marketing consulting business, he knew about the sliminess of his vocation.  Though Lawyers.com is connected with the once venerable Martindale-Hubbell brand, it’s just another low rent lawyer referral service, cashing lawyers checks and selling pretense to “leads.”  Then there are the weekly “specials” on faux self-promotional videos and wall plaques for “honors” offered at at 50% off. This is Larry Bodine’s world, the gutter of legal marketing.

Angered at his impotence to stop voices that were disrupting the campfire of marketers, Larry went on the offensive, twitting to his cloud of grasshoppers to report me and Brian to twitter as spammers for using the adored #LMATech hashtag and making him look, well, weak. 

As Ken at  Popehat notes, Larry had no claim on the hashtag.  Adam Steinbaugh, remembering his days doing security abuse at Myspace, immediately pegged Larry as a whiner, which isn’t what a savvy social media guy ought to be.

Tannebaum and Greenfield may be many things to Mr. Bodine, but they’re certainly not ‘spammers.’ They’re not advertising anything. They’re mocking Mr. Bodine’s conference — which is likely to do little to endear them to other attendees or earn them any clients (who, most assuredly, do not care what lawyers talk about at lawyer conferences). They’re not selling anything except LOLs. While it’s hard to fault Mr. Bodine for not understanding the finer points of the “report for spam” tool, it is bewildering that a legal marketing professional has no working understanding of the definition of “spam.” That might be all you need to know about internet legal marketing professionals.

While they are both right about Larry, and it has got to be embarrassing — no, humiliating — to be outed as so social media clueless that he wouldn’t realize that the only possible outcome was for twitter to see Larry as a whiner. But I see it in a slightly different light, one that eluded Greg Lambert.

Is Lawyers.com so afraid that what it does is so awful that it can’t bear up to the scrutiny of a few lawyers? Is that why its editor in chief feels compelled to engage in venal, if infantile, conspiracy to silence us?

Marketers are engaged in a race to the bottom. Not all, but most. Some of us try to slow
down the race, and sometimes we use twits, some humorous, some pointing out the absurdity of their claims and brilliant methods. Maybe we will turn a head of a few more marketers. Maybe we will change the mind of a gullible lawyer.  Maybe we will slow down the race just a bit. 

But in the race to the bottom, Larry Bodine, editor in chief of Lawyers.com, appears absolutely determined to win at any cost.

While it hasn’t gotten nearly the play of threats of terrorist attacks, the threat of cyber attacks is being promoted by defense secretary Leon Panetta as one of the greatest threats facing the country, demanding resources, attention and, of course, laws.  From the New York Times :

Defense Secretary Leon E. Panetta warned Thursday that the United States was facing the possibility of a “cyber-Pearl Harbor” and was increasingly vulnerable to foreign computer hackers who could dismantle the nation’s power grid, transportation system, financial networks and government.

“An aggressor nation or extremist group could use these kinds of cyber tools to gain control of critical switches,” Mr. Panetta said. “They could derail passenger trains, or even more dangerous, derail passenger trains loaded with lethal chemicals. They could contaminate the water supply in major cities, or shut down the power grid across large parts of the country.”

Given our reliance on computers to do, well, everything, manage and control the world as we know it, a cyber attack could certainly wreak havoc.  Whether a comparison to Pearl Harbor holds water is another story.

The upshot is the government desires to enact legislation, and if not legislation, then an executive order looms. This is where is gets muddy, yet disturbing.

Mr. Panetta also argued against the idea that new legislation would be costly for business. “The fact is that to fully provide the necessary protection in our democracy, cybersecurity must be passed by the Congress,” he told his audience, Business Executives for National Security. “Without it, we are and we will be vulnerable.”

With the legislation stalled, Mr. Panetta said President Obama was weighing the option of issuing an executive order that would promote information sharing on cybersecurity between government and private industry. (Emphasis added.)

Is this what will save us from attack?  Perhaps, but its implications run far deeper, an issue that few address.  After all, when the national security flag is raised, what kind of idiot would concern himself with such trivialities as the impact on civil and constitutional rights?  This kind of idiot, I guess.

If we’ve learned nothing over the past decade, it’s that the government is singularly adept at multi-tasking, using laws promoted as our protection from terrorism to undermine the rights and privacy of its own citizens.  Whether it’s coincidental or deliberate isn’t the point; the point is that consequences follow from such initiatives, but nobody wants to talk about them before the damage is done when the defense secretary is screaming about a cyber-Pearl Harbor.

At Volokh Conspiracy, Stewart Baker (who has done a lot of thinking about cybersecurity) argues that the government’s approach flawed and ineffective.

We will never defend our way out of the current cybersecurity crisis.  That’s because putting all the burden of preventing crime on the victim rarely succeeds.

The obvious alternative is to identify the attackers and punish them.  Many information security experts have given up on this approach.  As they point out, retribution depends on attribution, and attribution is difficult; attackers can hop from country to country and from server to server to protect their identities.

I think this skepticism is outmoded, however. Our intelligence on cyberattacks has gotten a lot better. Investigators no longer need to trace each hop the hackers take.  Instead, they can find other ways to compromise and then identify the attackers, either by penetrating hacker networks directly or by observing their behavior on compromised systems and finding behavioral patterns that uniquely identify the attackers. 

There is a huge irony gap in the government’s promotion of the notion that hackers, be they state sponsored or a collective of individuals who screw with the system for fun, are so much smarter, better, more nefarious, that our collection of cybersecurity-minded individuals are totally outgunned. Are we really impotent against the evil computer geniuses of Iran?

But Stewart notes a deeper problem lurking in the background, happening at the same time as the administration wants to get inside our computers to prevent this cyber-Pearl Habor:

Now there’s no doubt that US intelligence and law enforcement agencies have the authority to respond to hacks of US companies by breaking into the networks of suspected hackers and gathering information there. But by and large they don’t. 

Why not? Because complaining to the FBI and CCIPS about even a state-sponsored intrusion is like complaining to the DC police that someone stole your bicycle.  You might get a visit from the local office; you might get their sympathy; you might even get advice on how to protect your next bicycle.  What you won’t get is a serious investigation.  There are just too many crimes that have a higher priority. 

This is where it becomes hard to reconcile. On the one side, the Department of Defense says the sky is falling and we need intrusive laws to allow the government access to our computer infrastructure for our own protection.  On the other side, law enforcement can’t be bothered with it because it’s got bigger fish to fry.  Which is it?

No doubt the concerns about cybersecurity will eventually hit main street, with teenagers aghast at the possibility that Facebook will go down and they’ll never be able to add new friends they’ve never met.  Whether law or executive order, it will be sold to us as the absolutely necessary means of protecting us from this dreaded but unseen enemy, waiting at the fringes of the internet to take over our nation.  We certainly can’t have that.

In the process of staving off this cyber-Peal Harbor, however, the implication for further erosion of privacy and liberty is at monumental risk.  For most of us, we’re far behind the learning curve of what this means at the moment, but the government is moving full steam ahead.  By the time we figure out what liberty has been lost in the name of security, it will be too late, just as it was after 9/11.  The time to confront the implications of cybersecurity is before we lose any more freedom, because if 9/11 has taught us anything at all, it’s that getting it back afterward doesn’t work.

In a surprisingly thoughtful post for Law.com, Vanessa Blum surveys the problems with the government dealing with excessive data seizures in prosecutions for computer crime.  As one might expect, the government wants the seize and retain everything it can get its hands on, arguing that it’s too much of a burden to sift through data and limit its retention to that which is relevant to their case. 

And as one might similarly expect, the defense position is tough nuggies.

More than a year after federal agents arrested 14 people accused in a cyberattack on PayPal, the high-profile prosecution has ground to a standstill over the handling of computers seized in the investigation.

Searches carried out in a dozen states targeted computers, hard drives, and other digital devices, resulting in an avalanche of electronic material for investigators to sift through.

But intermingled with potential evidence of a crime were millions of irrelevant files, like emails, photographs, medical records, downloaded articles, Internet search histories, and old tax returns.

“It’s permeating criminal investigations,” said Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation. “What the government is arguing is that people increasingly use computers to further their crime and we have to search through everything, because criminals don’t label their contraband.”

Technology should allow government to more narrowly target searches of electronic data, said Fakhoury, a former federal public defender in Southern California.

“What the government is saying is the exact opposite, that the technology is so complicated, it’s impossible to ferret out what is relevant or irrelevant,” he said.

Defense lawyers say the holdings of Tamura and Comprehensive Drug Testing reign. The intermingled computer files may be taken off-site, but they must be carefully sorted and irrelevant materials must be deleted, destroyed or returned.

Fakhoury of the Electronic Frontier Foundation said there is no national standard for protocols in electronic searches. Prosecutors should be wary of pushing the limits, he said.

“The law doesn’t give prosecutors leeway to take whatever they want and keep it as long as they want,” he said. “The government is trying to expand its search and seizure powers, and I hope that judges are going to be resistant.”

New York City’s embrace of a policy that openly ignores constitutional rights in the name of a tiny bit of transitory safety, stop and frisk, has been a regular topic of discussion here.  But written words rarely capture the flavor of a wrong as well as a video.

This video by Ross Tuttle, via Radley Balko, needs to be seen by as many people as possible if there is to be an appreciation of just how wrong things can get when we trade off the appearance of safety for constitutional rights. 

The video is quite revealing, in some ways intentionally and in other ways not so much. Pay particular note to the police officers on the video, and their dissociation of responsibility for their conduct.  They know what they’re doing. They know it’s wrong. They’re ashamed of their conduct, but not so ashamed to not do it because that might mean they get a bad assignment or lose a promotion.  Just following orders, and certainly won’t refuse to abuse people if it means they will suffer any inconvenience. 

In the meantime, Mayor Bloomberg and Police Chief Ray Kelly calm the public below 96th Street by explaining how they are saving them from crime, the violent, marauding masses who would steal their money and rape their women.  And they shouldn’t have to endure any inconvenience either. 

Watch the video. Spread the video. This is what it looks like when we trade constitutional rights for the pretense of safety.

In Ithaca, New York, a charlatan told a worldwide crowd of serious academics that in the future, everybody will be a lawyer for 15 minutes.  Unlike Andy Warhol, Clay Shirky thought this was a good thing, and that they, and lawyers everywhere, should dedicate their careers to making this happen.

At the Law Via the Internet 2012 conference, Clay Shirky talked about how social tools can help close the gap in comprehension between the law and the public. People don’t just need access to legal codes, they need to be able to understand them. They need context.

Shirky argues that we need to embrace this impulse and assist in the interpretation of law online.

At A Public Defender, Gideon is trying, but it isn’t going well. He’s been incensed at a  HuffPostCrime story about the Connecticut Supreme Court’s decision in State v. Fourtin, and similar stories at  Think Progress and Boing Boing, In each of these stories, the narrative is the same: A rapist went free because a court held that a woman, in this case one with cerebral palsy, failed to fight back.

The story sounds outrageous, a throwback to the old days of women who didn’t fight a rapist to the death, wanted it. Just like women who deserved it for dressing provocatively, or couldn’t be raped because of their loose, sexually indiscriminate behavior.  Outrage ensued.

Except, as Gideon tried desperately to explain, that wasn’t what the decision held.  To lawyers, criminal defense lawyers at least, it was quite a solid decision.  The defendant was charged under a narrow statute, limited to the rape of an unconscious person, and the victim may have had cerebral palsy, but wasn’t unconscious.  There were other subdivisions of the law under which the defendant could have been charged, but wasn’t. The prosecutor blew it. He charged the defendant for the wrong crime.

Because of this, all the other safeguards of the criminal justice system kicked in, from due process to double jeopardy.  People at HuffPo and Boing Boing usually like these aspects of the law, except when they don’t. Then they become technicalities and produce injustice, because the outcome doesn’t comport with their sensibilities. Rape is one of the sacred cow crimes, and no law should get in the way of conviction.

It’s all about outcome?  As Ken at  Popehat points out, people across the political spectrum pick their positions based on outcomes, just different ones.  It’s not about thinking, but feeling.  The law, however, isn’t about feeling.

The writers at HuffPo, Think Progress and Boing Boing should be somewhat attuned to the substance about which they write.  After all, someone decided to give them a big megaphone to announce their views to an audience that believed they knew what they were talking about.  While they sell keyboards to pretty much anyone these days, and any nutjob can stand on his own internet soapbox and yell, these are putatively legitimate sources of information. 

People, lots of people, go there to read and, they expect, learn.  If someone is going to write about a subject, and someone decides to give them the megaphone, there should be an obligation inherent in broadcasting their thoughts to the groundlings that they be reasonably substantively accurate.  They may not be lawyers (which some think would be a wiser choice of author if popular publishers are going to write about law), but they are intelligent, educated people with a keen interest in the law. Certainly they should be capable of writing an accurate story about a decision.

But as Gideon points out, line by line, the stories are not accurate. In fact, they are fundamentally wrong, and by being wrong, create outrage rather than illumination.  The readers of these stories are stupider for having done so.  Worse still, they not only show no interest in understanding why they are wrong, but are aggressively antagonistic toward anyone who tries to explain.  They call them “rape apologists,” and tell them to shut up before deleting their comments.

Shirky’s future of law was uttered at a conference at Cornell University, where there is a project, the Legal Information Institute, dedicated to putting statutes and caselaw online, freely available to anyone who seeks knowledge.  This is an important project, as these laws and decisions belong to all, not just the expensive duopoly that has controlled our access to the output of our government.  

The LII’s efforts to make law freely available isn’t at odds with Clay Shirky’s nonsense, but isn’t consistent with it either.  Rather, Shirky takes the ball and runs sideways, toward a goal that doesn’t exist.  People, meaning non-lawyers, want unfettered access to the law. That’s fine. They want not only access, but the ability to understand it and use it without need to pay for lawyers. That’s not so fine.

Shirky says lawyers must help them to do so because it will make people happy.  Shirky had no business at this conference. Just as the writers at HuffPo, Think Progress and Boing Boing couldn’t grasp the meaning of the Fourtin decision, even though they thought themselves worthy of publicly criticizing it, people less educated, less interested, less astute, can’t become lawyers by reading a couple paragraphs on a wiki page. 

Anyone reading any of the grossly inaccurate stories about the Fourtin decision could have read the decision itself, read the underlying statutes, read the caselaw on due process and double jeopardy, and come to their own conclusion that they story they read was completely wrong.  But they didn’t.  Instead, they were more than happy to be fed nonsense and take the writers’ words for it. 

Law on the internet is a powerful tool. But like any tool, its utility is only as good as the skills of the person using it. Prosecutors in Connecticut used the law poorly, and as a result, a rapist may walk free.  Writers at popular websites used the law poorly, and as a result, got a lot of people worked up about the wrong problem and made them stupider in the process.  Clay Shirky thinks anybody can be a lawyer if we give them access to the tool, learning nothing from the potential of one rapist walking free because the tool was put in the hands of a bad mechanic. 

The prosecutor in Connecticut was a lawyer. The writers were educated and interested in legal issues. The public just wants a freebie and couldn’t care less about making the effort to become truly knowledgeable.  If this is the future of the law, it’s going to be a disaster.

Jerry Sandusky will be sentenced later today for his conviction on 45 counts of child molestation.  In advance of his sentence, he released a recording, related in this AP story :

In the three-minute monologue aired Monday night by Penn State Com Radio, the former Penn State assistant football coach said he knows in his heart that he did not do what he called “these alleged disgusting acts” and described himself as the victim of Penn State, investigators, civil attorneys, the media and others.

“They can take away my life, they can make me out as a monster, they can treat me as a monster, but they can’t take away my heart,” he said. “In my heart, I know I did not do these alleged disgusting acts. My wife has been my only sex partner and that was after marriage.”

And they will take away his life. Given the nature of the charges upon which he was convicted, combined with his age, there isn’t a lot of wiggle room. Beyond that, it’s just a message. 

The more interesting question is what strategy is available to Sandusky at sentence.  This three-minute monologue suggests that he’s taking the position that he’s innocent, the crimes for which he stands convicted never happened, and he will face the court and his accusers with the knowledge that he has done no wrong.

Will anyone buy this?  Probably not.

Does Sandusky have an alternative?  He could concede that it’s all true, that he’s a sick man in desperate need of therapy, and had he received that therapy decades ago, perhaps none of this would have happened.  Of course, that won’t mean that he’ll ever walk out of prison, but it might make him less of a monster.

Assuming, as seems pretty likely, that he will appeal his conviction and assert innocence, admission of the crimes at sentence in the hope of garnering what little mercy a judge might muster will make it impossible.  You can’t be guilty and innocent at the same time. Not even if you’re Jerry Sandusky.

Having pondered the options available, there doesn’t appear to be any choice but to assert innocence at sentence and take whatever the court dishes out. Not because it’s likely to help him, either at sentence or on appeal since there is little doubt as to the sufficiency of the evidence, but because there is no good alternative.

Sometimes, there is no argument, no strategy, no option, that has any potential to work.  In this case, none comes to mind.  Maybe someone else can see a viable option, but I can’t.

Update:  Via AP, the sentence was 30 to 60 years:

Jerry Sandusky was sentenced Tuesday to at least 30 years in prison – effectively a life sentence – in the child sexual abuse scandal that brought shame to Penn State and led to coach Joe Paterno’s downfall.

A defiant Sandusky gave a rambling statement in which he denied the allegations and talked about his life in prison and the pain of being away from his family.

I’m pretty sure Sandusky’s lawyer, Joe Amendola, was available for interviews after the sentencing, and plans to be ready early tomorrow morning just in case they want to have him on the Today Show or maybe Good Morning America to find out how he feels about the sentence.

The New York Times online version offers what they call an op-doc, which apparently is an op-ed with a video behind it.  How this will work, or even if this will appear, in the dead-tree version is unclear, as I haven’t see it yet, but it will be interesting to see whether the op-ed part, the writing without the video, plays in Peoria.

The Times allows me to link to a video called Three Strikes of Injustice.  It can’t be embedded in this post, at least not until someone more knowledgeable than me puts it on Youtube, and since the Times is so important that it hides behind a paywall, some won’t be able to see it.  It’s a shame, because the video is good and important. But what’s “good and important” compared to making a buck to a newspaper?  Priorities.

So within these constraints comes the point of the op-doc, the video and its accompanying text.

In 1994, California voters passed the harshest three-strikes law in the country. Soon after, stories began to emerge about people receiving life sentences for petty crimes such as stealing a pair of gloves or a slice of pizza. Such cases challenged the commonly held belief that the law applied only to violent criminals.

The case of Shane Taylor, the subject of this video, is common in many ways, but also unusual in that his judge and prosecutor have gone on record saying that his sentence is unfair and should be modified. Under current law, revising a sentence after it has been imposed is nearly impossible.

On Nov. 6, voters in California will decide whether to adopt Proposition 36, a ballot initiative that would reform the most draconian aspects of the law — and, in our view, restore the original intent of voters, which was to lock away violent career criminals for life, without unjustly throwing away the lives of small-time, nonviolent offenders like Mr. Taylor. Like most Californians, we believe that the punishment should fit the crime. We’re encouraged that polls show broad public support for the measure.

A perpetual wonderment is that a cop can take the witness stand at trial and remember minute, often inconsequential details of an incident that happened a year or two earlier.  In the interim, he may have confronted hundreds, maybe thousands of people in similar circumstances, but in the witness chair, his memory is razor sharp.  The wonderment isn’t that the cop has superhuman memory. No, it’s that juries believe the testimony.

Before testifying, you see, the cop reads over his reports, that contain the important details. He’s prepped and prodded by the prosecutor, much like testing a school boy to make sure he’s studied.  As for the minor details, the ones that blur with the hundreds of other things he’s done since the arrest, well, those he can just make up, as long as he makes it look like he knows. 

After all, there’s no one to contradict him, one of the foremost reasons the prosecution only calls one of the two cops on the scene.  If they have to call both, then they have to work harder to get their stories straight.  Even so, there are so basic answers to erroneous detail testimony (“I was focused on the gun in the defendant’s hand, so I didn’t pay attention to what type of sneakers he was wearing”) that can cover the goof. 

And juries believe it. It’s hard to blame them, as they don’t know that police officers are practiced at the art of testifying, have a pocket full of pat answers.  They haven’t heard the prosecutor’s carefully crafted responses to routine failings, the “why would he lie” argument that ordinary people find so very persuasive. Sure, criminal defense lawyers are jaded, as they’ve heard it a hundred times, but to a juror hearing it for the first time, it makes enormous sense.

And so people are convinced that, for better or worse, the testifying cop is telling the truth.

Which makes the fact that no officer remembered anything about what happened to Matthew Olson all the more ridiculous.  From the Daytona Beach News-Journal :

“It was a pretty egregious set of facts,” said Olson’s Orlando-area attorney, Howard Marks. “He was in his house sleeping. He just opened the door a crack and two officers barged in and beat the hell out of him. … Then they did an illegal search without probable cause.”

It’s sufficiently outside the norm that it’s the sort of thing a cop remembers, right?  Well, not in Daytona Beach.

Police Chief Mike Chitwood said some aspects of the case don’t add up, such as Olson not complaining of any medical issues when he was booked into the jail. But it would have been a tough case to take to trial because there was no internal affairs report, no 911 recordings and officers couldn’t remember much of anything, the chief said.

It was as if it never happened. Except it did. No paper work. No memory. There were six cops involved, Craig Buth and Scott Goss were the ones who pushed their way in, Robert Atkins and Scott Barnes tossed the place for fun, and Elizabeth Morgan and Kenneth Dier were there for no particular reason. Yet nobody can remember a thing.

To the extent we believe we know what the police are up to, such as how many innocent people minding their own business are thrown against a wall and searched in New York City’s stop and frisk fiasco, we rely on police reports. We rely on their existence. We rely on their accuracy. We rely on the police to tell us the bad, as well as the good, of what they do to people. 

Or, as happened in Daytona Beach, they just don’t write any reports when something bad happens and, poof, it never happened.  They don’t let the guy whose head they smashed on the ground complete the forms for them, or even read them over and approve of their accuracy, so it’s entirely in the hands of the police to create the foundational reporting of an incident. Of course, we can trust their recitation of events because they have no reason to lie.

The City of Daytona Beach settled the action by Matthew Olson for $250,000 because it would be awfully hard to defend when no one remembered anything about the case. Why this amount isn’t exactly clear, since Olson’s out-of-pocket damages were calculated to be a bit higher.

The settlement ended both that federal case and claims that had been pending in state court, allowing the city to avoid what could have been a much larger award for pain and suffering as well as $642,370 the man, Matthew Olson, claimed he was owed for past and future medical expenses, lost wages and attorney’s fees.

Perhaps he wanted to get the case over with. Perhaps he feared reversal on appeal a decade from now based on some qualified immunity ruling, because police officers may not be aware that they can’t burst into a house, beat the crap out of a guy, search the place, all without a warrant. You never know.

Or maybe the whole thing just never happened?  Nah.  If there’s one thing you can bet on, if the police didn’t do what Olson said they did, that they would remember.

H/T FritzMuffKnuckle

At Sentencing Law & Policy, Doug Berman links to a paper by Yale Law School’s Simeon E. Baldwin Professor Emeritus Peter Schuck, who has taught pretty much everything but criminal law (largely a superfluous course at Yale).  The paper is entitled Immigrant Criminals in Overcrowded Prisons: Rethinking an Anachronistic Policy, which gives you a pretty good idea where it comes out on the subject.

If you still have any doubt what this paper is about, the summary should clear that up:

Under an Immigration and Nationality Act provision dating to 1917, deportable immigrant criminals must serve their entire sentences in the U.S. before being removed from the country. (Exceptions, enacted in 1996, are seldom used). At the same time, federal and state prisons are dangerously overcrowded, with the Supreme Court soon to rule on the constitutionality of overcrowded conditions in the California system. The paper shows that the most common proposals for reducing overcrowding are either politically difficult (e.g., shorter sentences) or numerically insignificant (e.g., decriminalizing drug possession for use). The paper proposes instead, or in addition, to facilitate the earlier removal of deportable criminals and analyzes the legal, policy, and diplomatic changes that would be necessary to implement this approach.