The October 2012 Term of the Supreme Court opened yesterday, the first Monday of October. Lawyers and law professors, the media and those passionate about the law, will obsess over the cases. Tom Goldstein has created a business out of his former blog, SCOTUSBlog , out of it.

Does it matter? When is the last time the Supreme Court decided something that changed your life? When is the last time the Court issued a fully formed opinion that answered all the questions surrounding a disputed issue, without leaving a half dozen more questions unanswered so that people will spend the next generation arguing over the application of a new holding?

Sure, there are occasional sea change decisions, Booker, Heller and Citizens United come to mind.  But for the most part, does anything that happen at One First Street change much of anything in the trenches?  Does it change anything on your street?

From time to time, I’ll waste time and brain cells on Supreme Court decisions, parsing the words to determine who really won and what it really means.  Lawprofs will write thousands of posts over the most inconsequential of decisions, for lack of anything better to do with their time or to show how deeply they think in the hope of arriving at some truly significant thought.

But for a long time now, it’s been my sense that we’re gushing over essentially nothing. Rarely is anyone saved. Rarely is anything changed. Rarely does it matter to anyone in the trenches or on the street.

Am I missing something?  Is this important in your practice? In your life? Is it worth all the attention it received or are we just spinning wheels?

Update: There are days I wonder whether I’m using some foreign language here that is utterly incomprehensible to readers. Obviously, I’ve been horribly unclear as none of the comments reflect anything remotely resembling the issues raised.  Padilla? Seriously?

There are judges whose entire pre-judicial career was spent in a prosecutor’s office. There are judges who believe in a particular faith that differs from a defendant’s.  And there is a judge whose father was murdered.  Raising this as a basis for recusal will not only fail, but generate some actual antagonism toward the lawyer who raised it, if not the defendant who claimed it.

In Mile v. Ryan, the defense moved to recuse 9th Circuit Judge Susan Graber, who was regarded as pretty tough on defendants, based upon the fact of her father having been murdered. The underlying case was a murder for which the death penalty had been imposed, and the defendant sought a writ of habeas corpus.  During the pendency of the petition, the defendant changed lawyers, with his new lawyer moving for recusal.

Judge Graber refused to recuse herself.  More importantly, the other two judges on the panel, Berzon and Tallman, felt compelled to chime in.

Should our silence be misunderstood, however, we wish to state that were it appropriate for us to have participated in the recusal decision, we would have voted to deny the motion. Indeed, we regard the request itself as an inappropriate one.

The basis for the requested recusal was a tragedy in Judge Graber’s life that occurred close to forty years ago, her father’s murder and the subsequent prosecution of the perpetrator. The suggestion was that Judge Graber cannot fairly decide this capital murder case because of that history and some broad similarities between the two criminal cases.

Judge Graber has been a judge for almost twenty-five years. In that time, she has sat on numerous capital murder cases, voting to affirm some and to reverse others. She has never been asked to recuse in any of them and never has. There is absolutely no reason she should do so now.

Nothing in here suggests a lack of bias or an affirmative reason why Judge Graber would be able to overcome her personal experience, but that isn’t the point.  When the Senate confirmed her appointment, she came with a life filled with experiences, like every other judge on the bench. No judge lived in a bubble, devoid of history that bears upon their sensibilities and perspective. Every judge comes with bias, as does every other person in the world.

All of us as judges have had life experiences that could be said to affect our perception of the cases that come before us. Some of us have served as prosecutors and others have not; some have experienced discrimination as women or minorities and others have not; some are intensely religious and others are not, and our religions vary; some have children and other relatives with disabilities and illnesses, physical and mental, while others do not; some have had personal experience, directly or through family members, as crime victims, while others have not; some have relatives who are police officers, civil rights activists, or journalists, and others do not; some served in the armed forces and others did not; some had personal experiences as immigrants and others did not. These life experiences do not disqualify us from serving as judges on cases in which the issues or the facts are in some indirect way related to our personal experiences.

The point is the ability of the judge to overcome their personal bias and rule to the best of their ability, as fairly as possible.

This same “life experience” argument was raised with Judge Vaughn Walker in Perry v. Brown, which is noted in the opinion.  Was Judge Walker incapable of deciding the gay marriage issue because of his sexual preference?  If his being gay precluded him from being fair, would a heterosexual judge not have similarly been presumed biased based on his preference?

It’s a circular argument, and if we were to demand a judge with absolutely nothing in his personal life that could potentially influence his thinking, there would be no judge who fit the bill.

For a client to raise questions as to a judge’s potential bias is routine. Whether real or paranoia, defendants regularly raise issues of their judge’s prejudice and presumed inability to be fair.  Indeed, in many instances, it’s just a matter of a judge being unduly oriented toward the prosecution, which is less a flaw with the judge than a flaw with judicial selection. 

Most judges are prosecution oriented, because that’s the prevailing attitude of the pool from which judges are picked.  The only answer to this complaint is to get over it, as there is nothing to be done about it once a President appoint and the Senate confirms. They get robes and we get burned. That’s how it works.  If you don’t like it, write your senator, but it’s not going to help you much today.

However, the decision of whether to seek recusal of a judge is one that belongs exclusively to the lawyer, and making a motion based on a reason that neither has any likelihood of success or substantive basis is likely to have consequences.

We well understand that this is a death penalty case, and that the petitioner’s lawyers properly regard it as their duty to try appropriately to raise every colorable issue that could possibly redound to their client’s benefit. But asking for the recusal of a member of this court who has decided capital cases for over two decades because of something that happened well before she became a judge is a request lacking even colorable merit. And doing so by reciting in detail the facts of a long ago, tragic incident in her life, requiring her to relive them yet again and exposing them anew to public view is, in our opinion, beyond the limits of appropriate representation.

The upshot wasn’t a new judge (who, I might add, could be little different than the one already on board), but a panel, at minimum, that will remember that you made a very poor decision in both raising the issue and the manner of presentation.  A motion like this may well demand a “scorched earth” approach, but remember that the lawyer doing so may just as well get burned.

It’s understandable that a defendant, not to mention his lawyer, wants desperately to get as far away from a hanging judge as possible. Indeed, it’s one of the grave failings of the system that the exercise of discretion, despite platitudes to the contrary, is so dependent on a judge’s individual proclivities, often being the difference between decades in prison.  But the system is flawed. Judges are flawed. To the extent there is a trick, it’s not making a bad situation worse.

It is extremely rare that a colorable basis exists to move for recusal.  Believing that a judge is inclined to rule against you just isn’t one of them. Don’t make it worse by trying anyway.

Despite the stench of rotting corpses of the “greatest thing ever” start-ups permeating the internet, another new one is soon to hit the skids with claims of providing what every desperate lawyer wants: leads. Called myRight, once again a couple of law students think they’ve come up with a way to parlay the tried and failed lawyer Q & A concept into a money maker.

Most legal problems are fairly common, so you shouldn’t have to fork over thousands of dollars in legal fees.

[A] Los Angeles-based startup wants to give you a free, online pre-consultation about your legal issues before you ever call a lawyer or go to a lawyer’s office. MyRight is a graduate of Los Angeles incubator, StartEngine and is the brainchild of law students, Michael Niu and Nikhil Jhunjhnuwala.

The site does what it says on the tin — it provides non-lawyers with the tools to solve their own legal problems.”We both found that lawyers spent a huge amount of their time answering and asking the same questions when new clients came into their offices,” said Niu. “We thought there must be a better way to automate this process.”

It’s amazing how law students know all there is about the practice of law, considering the din about how law students learn nothing about the practice of law.  Apparently, the whine stops when the marketing begins.

Despite the typical silly claims, most notably that myRight is set to compete with Avvo Answers, its hook bends a different way.

Got a legal issue? The site will lead you through a series of simple questions that get to the heart of the complaint. For instance, if it’s a housing query about a security deposit, it might ask you simple questions like, “Have you asked your landlord for a refund?” Throughout the process, you’ll be provided with relevant and simple information.

The image it raises reminds me of Windows’ troubleshooter screens, asking basic and annoying questions (“Is your computer plugged in?”) for those who can’t figure out how to solve a problem without the most simplistic help.

But if the information is reasonably accurate, this may work.  There are a great many people who haven’t got a clue whether they have a legal matter to pursue, and operate either out of ignorance, based on myths or what the lady on the corner told them.  An enormous amount of unproductive legal time could be avoided, saving both potential clients and lawyers time and expense, by weeding out those people either need legal help or don’t before they meet with a lawyer.

Based on the questions on Avvo Answers and the dreaded emails from “potential clients” seeking free advice, there is a huge gap in the many people’s understanding of the law that is in desperate need of filling.  For those who give free consultations, hour upon hour is lost to meeting destined to go nowhere, with angry people who demand that lawyers fix whatever perceived problems exist despite their being in the wrong or having no basis for suit.  The idea of educating people before they call, saving them the angst and the lawyer the time, has some merit.

The initial catch is that the concept is only as good as the quality and clarity of the weeding process. 

“People think the law is complicated, but most people would be able to make much better decisions if they simply knew the basics and whether talking to a lawyer is a good decision,” Niu said. In future, he told me, lawyers will use the site’s proprietary CMS to build their own helpful step-by-step guides on a variety of legal topics.

Well, the law is complicated, which is why they build law schools and courtrooms. On the other hand, there are basic limitations that, if carefully conceived, can serve to illuminate the process for clients and help them to realize what they should, or should not, do.  The problem is that myRight expects lawyers to to “build their own helpful step-by-step guides.”

The mantra in Field of Dreams was “if you build it, they will come.” Niu wants someone else to build it, and that opens the door to a bunch of problems. First, what if they don’t? Second, what if they do, but do it wrong? It’s not like two law students would have a clue whether some lawyer’s guide is accurate. Third, given that the motivation of lawyers who become embroiled in these scheme is to get clients to pay them money, is it reasonable to expect guides to be geared toward enlightening people or toward convincing them to retain the lawyer who crafted the guide?  What is missing is any means of assuring the efficacy of the process, which is a huge problem.

And even if the guides work, where does it go from there? While the guide concept could prove useful, the business model places myRight in the middle of the same, old, useless lead-generation scheme, a niche filled with dozens of marketers who try to skim a bit off the top at the expense of desperate and foolish lawyers.

The company plans to make money by asking lawyers to pre-pay for leads. If a legal complaint is too complicated, you may need to seek additional, expert guidance. The idea is that lawyers will be able to connect with these users through the site.

Because there aren’t enough cold-calls to law offices promising wealth and success if only they pre-pay for leads.  You know, the scam caller who asks if you can handle more DUI cases because they have clients desperately seeking lawyers?  Do we really need another person to hang up on?

And for the potential client who thinks only about a way to find cheap lawyer, the hidden risks remain.

To the extent myRight could serve both lawyer and client with its troubleshooter concept, I’m all for it.  But I have some trouble believing they can pull it off given their expectation that lawyers are going rush to build their business for them by doing the legwork needed, and doing it sufficiently well not to be dangerous or scummy. 

Yet, the concept will be captive to the same old lead-generation scheme that is already being used in a scientific experiment to empirically determine how many lawyers are clueless.  Adding another to the mix will neither improve the scheme nor expand the pool, as even lawyers eventually realize that they are not related to a Nigerian prince and internet generated “leads” are worthless.

Via a post by Mark Esposito, one of the weekend guest-bloggers at Jonathan Turley’s place, comes another teenage bullying story :

Whitney Kropp, a self-described outcast with just a handful of close friends at Ogemaw Heights High School, was picked to be the female representative of the sophomore class royalty. It certainly came as a shock.

But hours later, the 16-year-old learned classmates voted for her as a joke. She spent the night in tears.

I’m like, ‘Wow, I feel like trash,'” Kropp said. “I feel like I’m a little thing that no one really cares about.”

That night, she said, she contemplated ending her life “right here, right now.”

Hysterical, right? Let’s vote for the unpopular girl so we can have a great laugh at her expense.  While my position has long been clear that this shouldn’t give rise to a new law creating a crime of behaving like a total jerk, mean, selfish and thoughtless, the flip-side is that there is nothing about being mean to others that makes you anything other than an absolute idiot.  It’s not funny. It’s cruel.  Your father ought to take you the woodshed, each and every one of you, for this behavior so you learn that it’s not acceptable to go through life acting like such a douche.

But this time, things turned around on the little snot-nosed jerks who thought they could grad a cheap laugh at Whitney Kropp’s expense.

But thanks to a push from her family and friends, she decided to embrace what happened and turn the tables.

“I can just prove all these kids wrong … I’m not the joke everyone thinks I am.”

When word of the prank spread, local businesses stepped up to the plate.

Opting to stay on the homecoming court was a tough decision, Kropp said. That bold move prompted local businesses to donate her homecoming gown and shoes, while a salon gave her hair a new ‘do.’ A Facebook support page created for her has more than 96,000 “likes.”

One might suppose, given the pervasiveness of autism among school-aged children (which the CDC estimates at 1 in 110), that between school teachers, administrators and police, someone would have a clue how to appropriately deal with a 9 year old autistic child who has a melt down. But if it happens in Quincy, Illinois, you would be out of luck.

The incident began when Roger Parker, Jr. had some sort of unpleasant experience which lead to an outburst, where the teachers had difficulty keeping him under control.

They tried to isolate him in some kind of time out area, which probably made the situation even more scary and confusing for him.  When he tried to get out of this time out area by climbing a dividing wall police were already there to attempt to subdue him.

At that point police officer Calkins ripped the child from the wall by his limbs like a ragdoll, causing his face to smash against the wall, which resulted in a massive black eye .  He was then wrestled to the ground by police and taken into custody.

The boy was detained and booked for aggravated battery against a police officer and his family was denied access to him for a certain period of time. 

Forty-five minutes later, after they told me he did not need a parent present because he was under arrest and not being interrogated. He was fingerprinted, photographed, and booked for aggravated battery to a police officer.”

Jesse James, move aside. Baby Face Parker’s the new outlaw in town.

Kirchner said she is upset because she recently discussed a plan on how to handle her son if he has an outburst.

For the moment, the woman’s name is a secret, which is a good thing since revealing it would likely put her in serious jeopardy.  You see, she was turned into a snitch against a drug dealer, and drug dealers sometimes get upset about such things. Not that the Friendswood police care.

It wasn’t that the woman wanted to be a snitch. She was a single mother with no priors and a child at home. It started with a ticket for an illegal lane change, out-of-date registration and no insurance.  She didn’t want to pay the fine.  In some jurisdictions, she could have bought her way out of it by letting an officer “cop a feel” (where did you think that phrase came from?), but Friendswood cops are far too professional for such disgraceful sexual shenanigans. They want busts.

A woman in a small Texas town is alleging that police who pulled her over for a traffic ticket coerced her into making undercover drug buys to avoid paying the traffic fine, and threatened to reveal her role when she tried to back out of the arrangement.

The woman, who wishes to remain anonymous because she fears retribution from dealers, was pulled over for making an illegal lane change in the town Friendswood on Aug. 22, her attorney Dane Johnson told ABC News.

While most people wouldn’t think this the biggest deal ever, apparently she did.

While being held police offered her a deal: perform three controlled drug buys instead of paying the fines, the lawyer said. Her attorney told ABC News she had never bought drugs before, but agreed to do it to get out of the citations.

“I had two choices. They were either going to arrest me, or I could agree to do some controlled buys,” she told ABC affiliate KTRK.

After texts flew between the woman and the cops, including the chief, instructing her to make a $100 meth buy the next day, without any of the backup or support that normally goes along with a sting, the woman came to the epiphany that she didn’t cut the best deal ever, and so she went to Legal Zoom a lawyer to find out how to undo the deal. 

Several days later, she received a text message from the detective informing her she would need to write a letter to the police if she wanted to withdraw from the deal.

The message also warned her that if they filed charges against the drug dealer she bought from, she would be named in the affidavit as a source, revealing her as the person who “snitched” to the police.

The Chief of Police texted her attorney, telling him that by withdrawing from the deal, she “acknowledges that we may file a charge in the case of the controlled buy that she made and that she could be named in an arrest warrant.”

Snap. She can withdraw, but they’re going to float her name out there for the drug dealer to see. And, well, if some harm comes to her because a meth dealer isn’t thrilled with her deal either, well, not much they can do.  After all, she withdrew from the deal.  Can’t you just hear the chief cackling, “let her lawyer protect her,” and all the detectives give a hearty belly laugh?

This may clearly be just about the worst snitch deal ever cut, which should serve as a reminder of two things: First, talk to a lawyer before you make a deal with the cops. If the opportunity isn’t there, then don’t make the deal.  Second, becoming a snitch isn’t nearly as cool as it looks on TV.

But then, this woman, whoever she is, must have had a real problem with the traffic tickets to compel her to become a drug snitch standing on the side of the road.  Perhaps she was deeply in debt, had children to feed, and the few hundred bucks in fines would have put her out on the street.  She was ripe for the picking by the cops, who smell desperation and, being honorable gentlemen all, had no qualms about exploiting it.

Once she was in, the choices are limited.  It was a huge risk to try to pull out of the deal, as the cops could do exactly what they did.  The fact that they didn’t name the woman in the response to the lawyer is rather surprising, since that was the payback. 

The only impetus to keep her name out of it, and for this one has to credit the toughness of the lawyer for not backing down in the face of threats of harm to his client intended to scare the crap out of him, is that once everything came out, the revelation would have made the Friendswood police look even worse than they do.

While the analogy is often used, and used poorly, to compare the police to the mob, it seems unavoidable this time. The cops exploited this woman’s vulnerability for their own purposes, and then tried to hold onto her by threat of harm.  The best that can be said of the Friendswood cops is that they didn’t force her to
strip naked in the back of patrol car for the amusement of officers. She was only made to strip at the station, where all the women are made to strip, for the amusement of the officers.  They can make up good excuses for that, even though the woman was stopped for the vicious crime of an illegal lane change.

There is no good explanation for why a woman stopped for a traffic ticket should be coerced into playing snitch, even without threat of death at the hands of drug dealers. The police won’t respond to the charges because they’re under investigation. And it doesn’t help that their conduct was about as outrageous, abusive and coercive as they come, leaving them with little good to say anyway, other than welcome to Friendswood, Texas.  Use your blinkers, not your blinders.

Update:  And more friendship from Friendswood via Gizmodo a year ago, as hacked by Anonymous:

Exhibit A, an email from Robert Wieners Chief of Police, Friendswood, Texas Police Department. Subject line? “Stupid Bitch”:

That stupid bitch who started that stolen car chase at Yale and 610 got what she deserved (I’ll bet she was fat and black too). Same with that pervert that got shot by the county. Fuck that guy, see ya. That all sounds like good police work to me. Those folks got the criminal cure. It’s guaranteed, they will never commit a crime again.

Nice, warm and highly professional.  Also via Fritz.

H/T FritzMuffKnuckle

Annie Dookhan wanted to be a star. After all, the days of crime lab chemists working in dark back rooms, doing dirty, boring jobs, gave way to CSI coolness.  And because she followed her passion, a whole lot of people are going to walk out of jail. Many innocent. Some guilty. It won’t be possible to tell which is which, thanks to Annie.

What Annie did at the Massachusetts state crime lab makes the point better than any thoroughly written, thoughtfully researched, report by the National Institutes of Science. Annie makes clear that no science, not even real science, is any better than the human who does it.  From HuffPo :

Chemist Annie Dookhan was “Superwoman,” a colleague at a Massachusetts state crime lab used to joke. She seemed unstoppable in her quest to please prosecutors, police and her bosses, testing two to three times more drug samples than anyone else, working through lunch and not bothering to put in for overtime.

“The kind of person, if you owned your own business, you would want to hire her,” a supervisor would later tell police.

Aside from faking her credentials, she faked the tests. Some she just didn’t bother with, some she “dry labbed,” which apparently means she just looked at a substance and decided it was narcotics. She made up weights, didn’t calibrate equipment, and worst of all, sprinkled real drugs onto substances when there were no drugs to be had.  A star.

The litany of wrongs is comical, not because they should make anyone laugh but because they were so laughable. 

As early as 2008, a supervisor noticed Dookhan’s testing numbers were high. He spoke to her superior, but nothing happened. In 2009, the supervisor took his concerns to another superior, saying he never saw Dookhan in front of a microscope.

In 2010, a supervisor did an audit of Dookhan’s paperwork but didn’t retest any of her samples. The audit found nothing wrong. The same year, a fellow chemist found seven instances where Dookhan incorrectly identified a drug sample as a certain narcotic when it was something else. He told himself it was an honest mistake.

In one incident detailed by state police, a lab employee witnessed Dookhan weighing drug samples without doing a balance check on her scale.

Dookhan was handling a staggering number of samples. An average chemist could test 50 to 150 samples a month, but Dookhan was doing more than 500, according to monthly reports, a lab employee told police later.

And her supervisors knew it. Her co-workers knew it. They may have come up with excuses why her mistakes may not have been deliberate, but they knew it all along. They just shut their eyes tight and went on with their business, making sure defendants were convicted. 

People are funny. When they see something that stinks, but stinks in a way that produces results they like, they play whatever mental games they have to in order to rationalize the problem away.  They believe in the results, which reminds us again of why crime labs have become such a cesspool for error. They consider themselves an adjunct of the prosecution, not a neutral agency whose only purpose is to perform scientific testing. They are part of the machinery of conviction, and are not only expected to do their part, but want to do their part. They want to be proud of the fact that their work puts bad guys away.

The law adores science. Prosecutors and judges may not really understand much about it, which is how we ended up as lawyers rather than doctors, but we embrace the notion of science because it brings a sense of precision and exactitude to our otherwise fuzzy world.  It’s an issue precluder, conclusively determining facts as facts and thus removing them from the mix of variables that could be in doubt. 

Wrap up a ham sandwich in scientific mumbo-jumbo and we’ll eat it up. For years, lawyers stipped to the chemists findings, even before the prosecution was required to put the warm body on the stand, because there wasn’t much to do with them. They would recite all the tests they did and how that proved a substance was evil. It was all very perfunctory and official sounding. It’s not like you would get Annie on the stand to testify that she “dry labbed” the sample and never actually did the tests at all.

And this is with the good forensic science, the real stuff. Not the bite marks, the duct tape, bullets, fingerprints or even Cokie, the beloved drug dog.  This is the stuff, like DNA, which has an actual scientific basis. But none of it is actual science unless it’s performed properly, subject to scientific method, by people who don’t lie and contort, contaminate samples and “sprinkle” when the sample comes up empty.

There will be no shortage of hand-wringing over the disaster Annie has caused.  Now, despite the fact that it could have been nipped in the bud, they have over 60,000 samples she tested, plus however many she signed off on forging other chemists initials which basically puts every test every done at risk, they have a problem. 

People will walk, as well they should.  Good people and bad people alike will walk.  Whether this will make any prosecutor, judge or juror think twice about the efficacy of scientific, even good science, in that anything that involves the variable of a human being is never as perfect as it seems.  After all, this  isn’t the first crime lab fiasco, and yet the gatekeepers continue to compartmentalize the disasters as isolated instances, one after another.

That there was an Annie Dookhan working in the Massachusetts crime lab can be chalked up to one bad apple. That no one figured out that she was doing the dirty when her supervisor never saw her in front of a microscope, however, can’t. That there were doubts for years and no one ever mentioned it, as in  Brady for example, while lawyers faced irrefutable scientific proof in court that foreclosed any further hard thought about the scientific evidence, there was a whole system at work covering up for Annie’s 500 samples per month output of eyeballing white powder and proclaiming it cocaine, all to please the police and be a laboring oar in their vital mission to convict.

Yet the law, and the courts, still love science.  It’s one less thing to fight about.

The  New York Times reveals that Rob Johnson, District Attorney of The Bronx, has been doing a little something about the city’s dreaded stop & frisk practice.

In a significant blow to New York City’s use of stop-and-frisk tactics, the Bronx district attorney’s office is no longer prosecuting people who were stopped at public housing projects and arrested for trespassing, unless the arresting officer is interviewed to ensure that the arrest was warranted.

Prosecutors quietly adopted the policy in July after discovering that many people arrested on charges of criminal trespass at housing projects were innocent, even though police officers had provided written statements to the contrary.

Steven Banks, the chief lawyer of the Legal Aid Society in New York, said that the new requirement put “a procedure in place to verify that the stop and subsequent arrest were proper.”

“This is exactly what prosecutors should be doing before proceeding with criminal prosecutions — namely making sure that formulaic statements by police officers actually have some basis to support the arrest and prosecution,” Mr. Banks said.

But is that “exactly” what prosecutors should be doing?  And if it is, should they be doing so “quietly”? It’s stories like this that cause me a great deal of consternation. On the one hand, any movement away from unlawful and unconstitutional conduct is a good thing.  The specifics of this shift, trespassing at public housing, was rife with outrageous abuse, though it never seemed to play out that way at arraignment.

Yet, it gives rise to another issue that can’t be ignored. Dang, I hate to raise it and seem like an ingrate, but if Rob gets it here, which by definition means that he knows cops are feedings him lies for kicks under penalty of perjury (as the information they sign says so), then why isn’t he prosecuting the criminals?

And why is he doing all this quietly, when they know how to call a sweet press conference for the arrest of criminals who don’t wear blue?

And if they’re lying on trespass cases, what about the dropsy cases, or the “furtive movement” cases, or the assault cases where the defendant’s nose viciously struck the cop’s fist?

Steven Reed, a spokesman for the Bronx district attorney, Robert T. Johnson, said that the new policy of requiring interviews of officers “was discussed with the offices of the other district attorneys and the N.Y.P.D.,” but he would not comment further because of continuing litigation.

So the other DAs have chosen to persist in prosecuting cases based on lies?  And they know they’re lies, yet they continue to pursue arrests? And lie to the courts? 

That Rob Johnson has chosen to pull away from this horribly wrong stop & frisk policy, even in such a small way as this, is a wonderful thing, for which I applaud him. But a principled position requires the principle to be played out all the way, or it’s not really principled.  If it’s not okay to fabricate complaints at will, then it’s not okay, whether it’s about trespassing or public display of pot after the cop pulls it from your pants pocket.

Recently, all the metropolitan district attorneys were riding tall in the saddle to proclaim how they’re paragons of constitutional virtue. Rob Johnson was right in there with the brotherhood (and their wayward sister trying to horn in on the easy publicity).  They weren’t shy about going public. There was nothing quiet about it.  They claimed to know right from wrong, and they were thrilled to shout that they were RIGHT!!!

So why not now?  Why is this one being held close to the vest? Why no press releases? No marching bands? No planes writing in the sky that the Constitution isn’t entirely dead in The Bronx!

And what about Brooklyn?  Does Chuck Hynes say that Rob Johnson is an idiot?  Or Manhattan?  Will Cy Vance refuse to sit next to Rob at prosecutor lunches?  Same with Happy Hour?

Yet, my purpose isn’t to chastise the district attorney for having moved in the right direction, even if there remains a great deal of work to be done, both within his own house as well as the houses of others.  But I’m not ready to build him a statue yet either.

Yeah, this is a tough one.  And stop & frisk continues to result in the noses of young men meeting the tan brick facade of once-grand houses on a once Grand Concourse in The Bronx.  A very tough one indeed.

Mona Eltahawy wants everybody to watch her. So watch.



She hates the content of the sign she’s defacing. Many do.  She believes her freedom of expression trumps the freedom of speech of the sign.  She believes her freedom of expression trumps the potential of spraying the woman, Pamela Hall (I believe) in the process.  She believes the police must provide her with a satisfactory explanation of why they are arresting before she has any obligation to comply.

Forget the content of the subway poster, a terrible idea by Pamela Geller regardless of whether you agree with her idea or find it facially racist.  That’s a political issue best argued elsewhere.

But my free speech doesn’t trump your free speech. Mona’s free speech doesn’t trump Pamela’s free speech.  Mona can buy add space in the subway calling Pamela a racist. Mona, who styles herself a twitter journalist, can twit up a storm about it.  Mona can speak her mind, paint pictures, take videos and plaster YouTube.

What Mona cannot do is vandalize Geller’s posters and absolve herself of liability be asserting that it’s her right as an American to express herself freely. It’s not her right to deface someone else’s speech in the name of her own.

It takes little argument to explain why Mona Eltahawy is utterly wrong in her belief that she can do whatever she wants.  What makes this worthy of discussion is how her rationalization of the relative rights between her and the rest of the world works.  It begins with narcissism, the sadly pervasive force that drives so many people to believe that what they believe is more important than what anybody else believes, and they damn well have a right to make it known.

But this, while annoying, isn’t wrong. Even narcissists have the right to express themselves, even if nobody cares.

It’s the next step in twisted logic that gets her into trouble. Mona decided that the way in which she could best address Geller’s speech, speech she hates, is to destroy it.  She wraps up this irrational reaction in her own right to free expression, because that made her feel capable of doing what she wanted to do.

By that reasoning, Pamela Hall, the photographer in the video, could have exercised her freedom of expression by lowering her camera on Mona’s head with great velocity as an expression of her belief that vandalizing speech is wrong. And the police could have expressed their belief that being overly demanding is misguided by smashing Eltahaway’s face into the nasty subway platform. And on it goes.

This sort of facile rationalization has become de rigueur on the internet.  Sling together a few words that have captured popular approval to form some muddy notion of right with a modicum of superficial appeal and you can do pretty much anything you want.

There is a reason why some folks engage in unpleasant scrutiny of poorly reasoned, poorly rationalized words on the internet. It’s to stop people like this from wrapping themselves up in ignorance and acting upon it.  Many, particularly digital natives who use sloppy thinking to justify whatever they want to do, think it mean and “dickish” to explain why such facile mindlessness is wrong.

This is why.

Regardless of which side you take on the poster, what Mona Eltahaway did in response cannot be justified under any reasonable claim of right.  There were a million things she could have done to assert her beliefs. Defacing the posters is not one of them.  No matter who you are or how important you think you are in the universe, you do not have the right to oppose another person’s speech by destroying it.

I hope everybody was watching.

Update: Per the Daily News, Mona is represented by an old friend, Stanley Cohen, no stranger to radical causes. 

At the Trial Warrior Blog, Antonin Pribetic writes about an idea so novel, so daring, so outrageous, that it’s got to capture the imagination of someone. Just not Nino.

In his post over at Legal Cheek, “Twitter Set To Drive ‘Free-Of-Charge Ferrari Through The Horse And Cart World Of Law’, i@n davison (trendily pronounced iatn”) forecasts a ”Twitter legal advice experiment taking place today could prove a turning point for the way legal services are delivered”. Davison writes,

In a few hours, family lawyer  Lisa Collins, of Colchester law firm Birkett Long Solicitors, will take to Twitter to offer free legal advice. The pioneering session, which takes place today between 12pm and 2pm, will cover conventional family law matters, plus issues faced by lesbian, gay, bisexual and transgender people.

One question springs to mind: why pay for legal services when they can be provided for free on Twitter by lawyers like Collins who live in low cost areas of the country like Essex (where they can be sustained by their savings and practise law as a hobby)?

Well, the question is not “why pay for legal services when they can be provided for free on Twitter”?, but rather “who in their right mind would pay for free legal advice on Twitter?” There’s no such thing as a free lunch, when someone else has to pick up the tab.

No. Our responsibility isn’t contingent on things that make the people asking us questions happy. It’s doesn’t depend on ease of use.  If you want to play lawyer for free, that’s your call. Nobody requires you to charge for your advice.  But that doesn’t mean 140 characters is good enough.  

And to the happy person who got his legal advice off twitter, consider what you will say when it doesn’t fly with the judge, and he asks “who told you that was a good idea?” No, legal advice on twitter is not a good idea. Not at all.