A little over a year ago, Troy Davis was executed, though there was very serious doubt of his guilt.  But time has passed, and we move on to other things.  After all, there is an election coming up, and people are still unemployed, and our ambassador in Libya was murdered. There is no time to dwell on old news.

Today is the Jewish Day of Atonement, Yom Kippur. If I were more of a believer in the practice of a religion that frames my ethnicity, I wouldn’t be typing on this keyboard right now, but I’m not. But the concept of a day of atonement is good one, religion aside.  Must has happened in the past year. Much always happens in a past year.  A day when one looks back is a good thing, whether at our own lives or the lives around us.

There is no one who couldn’t stand some introspection.  We all have something for which to atone.  We may not want to admit we’re sorry, but we should be.  We could always do better.

And if there isn’t anything in particular that strikes one as atonement worthy, then consider what we could have done to help, or prevent, one of the many things that happened in the past year from happening.  Not because someone paid us to represent them, whether they were on the side of the angels or devils, but because we remain human beings who have a role to play in the existence of our world even when we’re not on the clock.

When I wrote the other day about not being “passionate” as a lawyer, but dispassionate, there was a subtle distinction that some missed.  Jeff Gamso caught it. As much as we may be dispassionate as lawyers, we are simultaneously people, and as people we bring passion to bear on the things about which we feel strongly.  At least we should.

As dispassion should guide our professional judgment, choices and tactics, passion should guide our lives in the sense that we chose to dedicate our time, our goals, our beliefs and our efforts toward things that matter to us.  Money isn’t a belief, but a necessity to an extent that we endure to be available to do other, more worthwhile, things.  Deciding to use our time and energies to help people, to help a cause, to serve a greater good, is to make a life mean something.

This isn’t to say what that belief should be. People on both sides of issues believe they are serving a greater good.  And as much as passion make us feel that our beliefs are right while conflicting beliefs are wrong, it guides us to make the choices that are right for us.  That’s about as good as we can do.

To those who have put their energies and efforts toward making their existence matter, who have followed their passion, question whether you have done all you could, done it honestly and could have done better.  If not, today would be a good day to atone.

To those who couldn’t be bothered to stand for anything because it was inconvenient, or would have interfered with your quest for money, love or world hegemony, today would be a good day to atone for a life wasted.

To those who wanted to stand for something, but were afraid, today would be a good day to atone for your cowardice and fear.

To those who knew what they believed in but pushed it aside for personal gain, personal benefit above all else, today would be a good day to atone for being the worst our species can produce.

There is no one who wouldn’t do well to take a day to think about what we could have done better. Certainly not me.  And the beauty of the concept is that we can start fresh tomorrow and be the kind of person we want to be.  It’s never to late to be a  better person, at least if you’re reading this. It is too late for Troy Davis.

The traditional Jewish greeting on Yom Kippur is G’mar Hatimah Tovah, may you be sealed for a good year in the Book of Life.  It’s up to you whether you make the next year a good one. Make it count.

A question asked regularly, and properly, by non-lawyers is how do cops, courts, governments get away with ignoring the law with impunity?  This is particularly apt with small offenses, the sort that touch so many people yet seem to defy scrutiny.  There is an answer, but you’re not going to like it.

I drove out east yesterday, to lovely East Hampton. This wasn’t for shopping or a trip to the beach. Not even for happy hour at Cyril’s.  My trip ended at the Town of East Hampton courthouse, where they are gracious enough to handle the Village of East Hampton’s parking tickets.

The Village of East Hampton takes its parking tickets very seriously. It’s a huge profit center, fueled by the rich and self-important who believe the rules don’t apply to them.  As long as they pay the price, they can do anything they please.  The locals avoid the place in the summer, when the tourists run wild, and spend the rest of the year enjoying the benefits of parking ticket income.  It’s a trade-off, but the cost-benefit analysis works in their favor.

There were 50 parking tickets on the docket. I was there for one. Dr. SJ has forbidden me to mention the identity of the woman who was driving the car that got the ticket, and so I won’t give her name. But I can tell this story because no client privilege is implicated. In fairness, I hasten to add that the driver had her eagle-eyed lawyer in the passenger seat at the time, and he didn’t happen to see any problem either.

The ticket was defective. Deeply, fatally, defective. Not in one regard, but in essentially every regard.  Here’s the laundry list:

The ticket was for “no parking” in a parking lot, neglecting to mention (or even have a place to mention) what statute or ordinance was allegedly violated.

The ticket included an advisement for pleading guilty by mail and remitting a fine.  It did not, however, include the notice that the recipient could plead not guilty by mail as well.

The ticket did not include the requisite language of CPL §100.25, that the recipient was entitled to a supporting deposition.

The ticket bore a return date a month beyond the date within which an appearance was required by local ordinance.

No person shall park, except with a parking receipt visibly displayed on the driver’s side of the dashboard of the vehicle, during periods of time when parking limitations are in effect.

There was no law that provided for periods of time when parking limitations were in effect.  You can’t just make up rules as you go along, and fine people for violating them.

But how did a couple of reasonably intelligent people find themselves in such a jam in the first place? Even that revealed a problem. At the entrance to the parking lot, tickets are supposed to be taken which allow for an hour of free parking, provided the tickets are displayed right side up.  There is a stop sign, below which is a legend to take a ticket to park. The stop sign is high enough to be seen over the heads of people standing in front of the sign. The legend below is not, despite state regulation of the height of signs so that drivers can see them.

As there was a crowd of hungry summer food shoppers awaiting the right moment to cross the entrance to the lot, standing in front of the sign that informed parkers to take a ticket, it was easy not to notice the ticket requirement. 

So after a lovely drive out east, with a stop at the Westhampton Beach bakery to pick up a box of fried jelly croissants (which are not to be missed), I found myself in a particularly formal courtroom for an east end village. It must have cost a lot of money to line the walls with wood, like a federal district court rather than the stinky district courts that dot Suffolk County.  I wondered where the money came from, and why the town thought it advisable to spend it on such a courtroom.  I didn’t wonder for long.

I took a seat in the front row, as attorneys often do, while awaiting the long line of unhappy people conferred with the prosecutor about their moving violations.  The numbers were staggering. A few tickets apiece, with a face value of $500 a throw, being negotiated down to $300 or $250 each.  This place was a cash machine the likes of which would cause any banker to embarrass himself.  No doubt the formality of the courtroom added to the misery, a reminder that each miscreant was facing a mighty government capable of such majesty.

After the line calmed down, I approached the Village prosecutor, a nice young fellow, to discuss the case. He asked me whether I was there for a parking ticket, and I sheepishly admitted I was.  There is no huge pride to be taken in defending against a parking ticket, no matter how you spin it.  Before I could waste any more of his time, he said “$20.”

This is where it gets really embarrassing. I want to tell you that having recognized the manifest errors in the tickets used by the Village of East Hampton, the flawed law, the improper sign, that I stood firm on principle and rejected his offer. I want to.  But I can’t.

At $20, he had my number.  I couldn’t say no.  I thought of the three more appearances out east, the written motions, the reply, the oral argument, and if the ruling was adverse as so often happens in local courts, the appeal.  How could I ignore the time it would have sucked from my life for $20? 

I capitulated.  I pulled a $20 from my pocket and handed it over to the clerk at the window.  In front of me was another lawyer, whose wife had similarly received a parking ticket and who had come to court because he would have never heard the end of it if he refused. He handed over a $20 bill as well.  They knew exactly where the tipping point was. They knew how to get away with it.

So you wonder how bad, wrong local laws and practice survive scrutiny?  They do so because people like me, who can and should stand on principle and end the tyranny that afflicts so many who can’t fight for themselves, trade off the ability to challenge them for a $20.  That’s how. And so the outlaw Village of East Hampton got away with it again.

In 2009, Sarasota Police Officer Chris Childers got caught.  A video in the jail “sallyport” told the story of how his handling of then 21-year-old Juan Perez, drunk, was less than fitting.  The  Herald-Tribune described the video at the time:

The tape shows Officer Christopher Childers pull a squad car into the jail’s sallyport area with Juan G. Perez, 21, with his hands handcuffed behind him in the back seat about 8 p.m. on June 26. Childers remains in the front seat as Perez shimmies out the squad car’s open back window and falls face-first onto the pavement, the video shows. The officer walks around the car and stands by Perez.

Minutes later, as Perez is trying to stand up, Childers apparently kicks him in the chest, then kicks him again. Perez falls back to the ground and Childers stands with his foot on Perez for five minutes. While Childers stands with his foot on the inmate’s torso, two other law enforcement officers walk over to see what is going on and then go about their business.

Childers and another officer later pull Perez up and take him into the jail. He is brought back to the squad car, staggering but on his feet. Perez was driven to the hospital, where police said his blood-alcohol content tested at almost three times the legal limit.

This conduct got Childers fired from the police force.  The usual reaction to gratuitous abuse by cops didn’t happen here. No whitewash. No hiding behind “we’re investigating” until the ill-winds blow past. No vague explanations to justify the unjustifiable.  No bull.

Childers, a nine-year veteran officer and former U.S. Army Ranger, was fired after investigators concluded he violated five department policies.

In those 9 years, Childers had managed to accumulate five excessive force complaints. Since “none stuck,” they don’t constitute a basis to conclude he had a propensity to use excessive force, but it’s included here for the same reason cops inform the newspapers about the criminal arrest record of every citizen they shoot without cause, to leave an unpleasant taste.

What followed was a show of chaos at the Sarasota Police Department, with the Chief, Peter Abbott, getting canned after being  accused of trying to improperly influence Perez when he sent a detective by to offer him a quick $400 to shut down. Perez later received $40,000 in settlement. Then there was the Civil Service Board fiasco, where the board violated the sunshine law by discussing the case privately, resulting in a big money damage award of $90,000.

The case finally went before a new Board, the final arbiter of police termination.  They shrugged. No big deal, and concluded that Childers should be reinstated with back pay for the three years that elapsed.

Civil Service Board members, including former City Commissioner Ken Shelin, said they were particularly swayed by the testimony of an SPD sergeant who saw what happened and said he did not think it was egregious.

“This was really not a strong force that was used,” Shelin said, as the board deliberated. “The man was drunk as a skunk and he was going to topple over easily. And apparently, that’s all he did. It was an easy push with his foot, and the man fell over.

“I know it looks bad on the tape, and that’s one of the problems with the video of this, and the public’s perception of the video.”

Every picture tells a story, don’t it?  This picture tells a story of why municipalities don’t rid themselves of bad cops.  It costs too much, and they don’t fare well anyway. 

They had a video.  This wasn’t a matter of a citizen’s complaint, which any rookie lawyer could argue is just animus or sour grapes, since police officers are sworn to uphold the law and respect the rights of citizens, which conclusively proves they would never harm anyone needlessly. “Why would they?” is the standard argument, and it’s proven its vitality for decades.

They had a video, but it didn’t have sound. Could that spell the difference?

The video did not capture sound, so it is difficult to say whether the officer felt threatened by Perez, or whether Perez was attempting to escape, said Maria “Maki” Haberfeld, a professor at John Jay.

However, when the other officers walk over to Childers as he stands with his foot on the inmate, it is clear the officers are in no danger, Haberfeld said.

“There was no need to keep him on the ground,” she said. “It’s not justified.”

But Civil Service Board member, and former City Commissioner, Ken Shelin spelled it out. Perez was “drunk as a skunk.” Screw him. He “was going to toppled over easily.” No harm, no foul. But most importantly, “it looks bad on tape, and that’s one of the problems with the video of this, and the public’s perception of the video,” which means that it wasn’t bad.  No doubt you can follow the logic too.

Childers, having had three years to ponder how to explain his conduct caught on tape, offered his exonerating explanation.

Childers — who argues the word ‘kick’ does not accurately describe what he did to gain control of Perez — says he was not trying to hurt him or use any more force than necessary to keep him subdued.

He had left the window of the patrol car open, he said, so that Perez could get some fresh air as he coped with the effects of the pepper spray.

Childers said he used his foot on Perez because he was trying to keep from being spit on.

“I didn’t want to get in a close proximity to him where if he wants to spit, it would get in my face,” Childers said. “That’s why I used my feet, and my legs.”

Nothing to see here. Move along.   Police Officer Childers is back from his three year vacation.

In yet another excellent post. Eric Mayer at the  Unwashed Advocate explains why he’ll pass on a young lawyer who is sniffing for a job.

“You know, Eric, I’m really passionate about defending soldiers.”

I smiled and made attempts at keeping the conversation light. Though I left with the feeling that he hoped that a seed was planted for future cultivation.

The fact is, I’d never hire him. Ever.

“Ever” is a very long time. What could have caused such a reaction?

So, why won’t I hire him?

He’s passionate.

I don’t have time to deal with that crap.

But, but, but…isn’t “passion” the word that crops up everywhere these days?  Aren’t we told by legal marketers and social media gurus that the key to success is to be passionate?  Isn’t the sage advice to follow your passion?

I talk to passionate people all the time. Some are clients. Some are potential clients. Many are family members–moms, dads, wives, brothers, sisters, and mistresses. Others are third-party advocates (victim, veteran, and the like). They are passionate. Often very, very passionate.

They know what they know and believe what they believe. They become flustered and angry at the thought that someone could believe otherwise. When I explain that the opposing side has a logical and (generally) accepted reason for a particular stance, I’m met with the same high-powered anger and frustration.

They blurt, “How can they possibly think that?! How can you say those jerks have solid and compelling evidence?!”

Passion isn’t just the rage these days, but a dangerously misguided perspective. It goes by other names, zealot, true believer for example, but it’s all the same thing. Lawyers who have confused their purpose with that of their clients.

The characterization of passionate has become increasingly pervasive, mostly because lawyers think it sells.  Clients like to think their lawyers “feel” exactly as they do, are as outraged at the injustice of it all and as utterly devoted to their  self-serving perception of “justice.”  The axiom is “justice is blind,” and they believe their lawyer should be as well.

Sadly, the blawgosphere has fed this misguided view.  It’s congealed the sides into teams of like-minded cheerleaders, who whip each other into a fervor through hyperbole and validation. If this were merely to bolster the fortitude of lawyers who rationalized away their responsibility to zealously represent their clients, this would be a wonderful thing. But that’s not what we’re talking about. It’s about proclaiming that our side is the side of good and the other side is the side of evil. We’re right. They’re wrong. No matter what they say, they are liars and we speak truth, for we are the side of truth and justice.

It gets worse.  There are lawyers who post rants directed toward the ignorant and angry, feeding them what they want to hear and in return receiving the adoration of their fans.  The problem is that these dialectics are remarkably unpersuasive, often dead wrong, and guaranteed to make any reader worse for having read it.

It’s easy to mount an argument when there is no one to argue against you, pointing out every inch of the way the error of your reasoning or the failure of your foundation.  But that’s not how it works in court, and that’s not how lawyers function.  We aren’t pundits, pontificating in the comfort of our easy chair with only sycophants around us. We face prosecutors, judges and juries, and they get to both contradict our positions and determine whether we’re out of our minds.  And they do.

Whenever someone tells me they’re “passionate,” I have the same reaction Eric does.  It tells me that they prefer to shut their eyes as tight as possible and sing “lalalala” at the top of their lungs whenever the arguments against them are made.  They believe. They believe too much. They can’t grasp that their belief isn’t shared by everyone, which makes everyone else either wrong or crazy.  And they can’t understand why they lose.

Feeling passion makes a person think they are flawless, and they see the other side as obviously and irreparably flawed. How dare someone think otherwise.

As lawyers, we are hired to analyze everything dispassionately, call it as we see it, and make the most of whatever hand we are dealt. If we are passionate, we fail at all three. The last thing we should do is practice in an area where we feel passion.

As a person, I can be plenty passionate.  As a lawyer, I cannot.  As a lawyer, my duty is to be effective in providing my client with the best possible outcome, regardless of any “passion” I may feel.

You see, priests “believe,” people “feel,” but lawyers “think.”

My experience tells me that passion usually results in one of two things: poor legal reasoning or unintended pregnancies.

Keep your passion. I’m with Eric.  I’ll stick with effective.

Update:  Some of the comments to this post made me think of this, so I had to add it in:

Proud of his scars and the battles he’s lost…

To paraphrase Patton, the object isn’t to die for your cause but to make the other poor bastard die for his.

Check our  Jeff Gamso’s post on this, where he offers a great perspective.

When a client retains counsel, he expects that person to be standing next to him in court.  It’s not an unreasonable expectation. Yet  Eric Turkewitz posts about the problems that can happen when the lawyer who shows up in court is someone a client has never seen before.

The case Turk discusses is a civil case, Kane v. City of New York, though the gravamen of the action involved injuries suffered in a false arrest at the hands of the New York City Police Department, and there was an issue relating to asking questions at the deposition about the plaintiff’s prior arrests.  While convictions are fair game, arrests are generally off the table, as they are mere unproven accusations.  But the lawyer on the case couldn’t make the court appearance one day.

Then came the problem. The lawyer had a conflict and hired a per diem to handle the next conference. The lawyer, knowing the sensitivity of the case, gave directions to the per diem. But the per diem dropped the ball. S/he then gave the case to another lawyer because s/he was too busy with other conferences that day. The specific directions regarding this case got lost in translation. The new order was not good for the plaintiff.

When the review copy of Eastern District of New York Judge Frederic Block’s book, Disrobed, An Inside Look at the Life and Work of a Federal Trial Judge, arrived, it dawned on me that this time I may have bitten off more than I could chew.  Judge Block is not only one of a handful of EDNY judges who doesn’t cause bile to rise in the throats of defense lawyers, but is generally quite well-regarded.

What if I hated his book?  Even though he’s now a senior judge, he remains active and I could very well end up before him on a case.  Notwithstanding my desire to believe that Judge Block was bigger than holding a less than fabulous review against a lawyer, his anger toward  Steve Dunleavy of the New York Post hadn’t abated.  But then, everybody knows that Dunleavy was a pandering nutjob, and if I was going to review the book, it was going to be an honest review. Hopefully, Judge Block will consider it in light of the parsimony clause.

If you want a tell-all book from a sitting judge, replete with dirt about his colleagues and hot stories of what happens in chambers, this book won’t do it for you.  The closest it gets to salacious is the passing reference to Judge Block’s post-divorce dating, and it’s not going to form the basis for a viagra commercial.  Judge Block is invariably gracious and complementary to pretty much everyone he’s ever met in his life. Even the two people named in the book who he clearly despised, his former law partner and Suffolk County political boss, Dominic Baranello, and Dunleavy, are tarred more by lack of good things to say than insults.  The overarching concern with judicial temperament is apparent on every page.

The first part of the book surveys Judge Block’s life as a Suffolk County, Long Island, lawyer, leaving the impression that the only question that need be asked of any Suffulk County lawyer is why they didn’t get the hell out of Suffolk County. Judge Block’s early years were marked by taking any case that walked in his door, and quite surprisingly, he was the defense lawyer in People v. Clayton, giving us the beloved Clayton motion. For you non-New York lawyers, this is the motion to dismiss an accusation in the interests of justice.

Yet he wasn’t really a criminal defense lawyer, and as his later description of an investigation he commenced as President of the Suffolk County Bar Association into impropriety in the county in obtaining confessions shows, he had no idea this was a problem until he read about it in the National Law Journal.  While Judge Block tells this story to show his boldness, fairness and concern, stepping up to reveal impropriety, it inadvertently reveals that he was totally unaware of what was happening around him. Given that this was well-known by every criminal defense lawyer in the county, it’s disconcerting that he had no clue until he read about it in the paper.

In this way, the book is far more revealing than I suspect Judge Block intended.  In part two of the book, about his experiences becoming and being a judge, he tells of the United States Attorney’s discomfort with him, as not being part of the prosecutor to judge feeder network, making him less than trustworthy. By Judge Block’s account, he’s rather proud of his independence, and often expresses concerns that aren’t necessarily shared by the government.

And yet, in his stories about his appointment process, courthouse security and life in the courtroom, Judge Block’s deference to the fine people in government, from AUSAs, US Marshals and Special Agents, comes across loud and clear.  Having read this book, I will never argue that Judge Block should find that an agent lied.  While I don’t think this was part of his thoughtful effort at transparency, what comes across clearly is that Judge Block is quite deferential to all the people one would expect.  Big name lawyers and big name firms are all mandarins of the bar. Heads of bar associations are all great leaders.  And the Department of Justice lawyers who held his hand through the Senate confirmation hearings are great humanitarians.  Humanitarians don’t lie, you know.

While reading Disrobed, I was constrained to dog-ear page after page for what wasn’t said, as much as the implied undercurrent, that was disturbing.  An example:

A customs officer once told me that only about 10% are caught. These swallowers do all sorts of things to avoid detection. I have had pregnant women, blind men, little children, and a dog before me.  The poor animal almost died on the plane.  The guy who came to retrieve him at the airport was arrested. Being bothered by cruelty to animals, I gave him a stiffer sentence than usual.  He was upset when I told him that he would not be allowed to bring  his dog to jail with him.  The Drug Enforcement Agency saved the dog’s life, named him Cokie, and trained him to be one of its best drug sniffers.  Lots of couriers probably got nabbed because of Cokie.

In this short quote, we’ve learned that Customs, DEA, dog hits and the pervasiveness of unstopped drug couriers are subjects you don’t want to raise before Judge Block.  While I’m sure he didn’t mean to be so revealing, his sweet embrace of Cokie, the wonderful drug sniffing dog, pretty much precludes prevailing in an argument as to forensic science fraud of dog hits.  Judge Block won’t be buying what you’re selling.

Yet, Judge Block’s admiration for Judge Jack Weinstein is clear, and he suggests that he’s more inclined to be a bit “mavericky” as well.  His empathy for defendants is express, and reflected in his disdain for the Sentencing Guidelines and being relegated to judicial bean counter.  In many respects, Judge Block uses this book as a vehicle for trying to move the lack of concern for fairness and empathy toward defendants more toward center.  While he won’t say that it’s off the charts on the government’s side now, you get the sense that he wants to and, if he wasn’t still getting his robe dry-cleaned, he would.

Much of the book is a rather banal view of a very powerful position, as if written by Judge Block as told to him by Pollyanna.  Then again, it’s a book by a sitting judge. What can you expect?  There are some interesting discussions of the internal workings of the courthouse, and if nothing else, you learn who a judge leans on when something bad happens, and why it won’t help to challenge aspects of a system that even a mavericky judge holds sacred.  And that covers almost all of it.  It’s not good news, but it’s something you ought to know.

The book is an easy and quick read, well-written for the most part.  The real story isn’t in the words, but what’s written between the lines.  If you expect a judge to finally spell it all out for you, this book won’t do. But if you want to know what thoughts belie their otherwise neutral comments, this book is a goldmine.

If you have the desire to find out what inmates of the asylum are saying when they think no one is listening, click into a twitter conversation among two other people and read.  For whatever reason, the back and forth is almost private even though it’s available to anyone who cares to look. In the information age, people forget that every voyeur can watch at will.  I did this the other day when  Radley Balko was explaining puppycide to someone.

The twitterer asked Radley why are cops murdering dogs.  Radley responded :

Because they can. No training, no consequences.

Easier said then done. Always easy to write it on paper. At 0dark30 hours I’m dealing with an out of control subject no matter what the incident I’m not going to pull out the book of Chief rules to take action. I’m going to move to whatever I need to control and win the situation. If verbal judo is going to do it fine, if my glock 19 is the answer well so be it. We need to back our street officers when they have to use extreme measures and stop running from our responsibility to do our jobs. Will we have some that will cross the line, probably, but hpw about all the officers lives we may save by being proactive.

I have been a use of force/defensive tactics instructor for over 7 years in a department exceeding 100 sworn personnel with a city of 100,000. After reading the comments in the above article I am grateful for the use of force support in our department from the Chief on down. We are not here to play around, get hurt, and sure as hell not get killed… Several basics I follow on the street that have not let me down: always back your play, don’t say it if you can’t do it. Rule of thumb, ask, tell, make, again lawfully. Finally when it is time for force, make it swift, make it strong and make it count. Ending a fight fast is better for all involved.

So the chief prefers that we go hands-on and risk a personal serious injury or death? This doesnt make sense. Resisting an arrest, either actively or passively, is still resisting and I will be taking that individual into custody. If I’m not getting compliance with direct my verbal communications, then verbal orders, why not use force that keeps me just a little safer? The suspect is the one that brought this incident upon themselves.

“He was approaching them aggressively,” said Houston Police Department spokes­woman Jodi Silva. “He was attempting to stab them with what is now found to be a pen.”

Twice in the past week, I’ve met with people who thought it best to seek legal counsel because they didn’t do anything.  The way I phrase my questions is not to elicit what they did, but to ascertain what the prosecution alleges they did.  It’s not only the more important question, but relieves the pressure of responsibility.  The problem is that the response came back, “I don’t know, because I didn’t do anything.” That’s not helpful.

I don’t mind these consultations,  as I charge for them and these nice folks are on the clock as they tell me what they want to tell me.  But I expect to provide value to everyone who pays me, and these folks are no different.  They’ve come to me for a reason, and part of my responsibility as a lawyer is to elicit information that enables me to ascertain that reason and address it. But I can’t beat them into submission. Well, maybe I can, but it’s really not a good practice.

One of the foremost outcomes people want when meeting with a lawyer is to be told they will be fine, they can go home afterward and sleep soundly that night, unafraid of the terrible things that kept them awake the night before.  And some lawyers provide this, “advising” that all will be well and they have nothing to be afraid of.  They say they did nothing, and so they have nothing to fear.

Of course, this is almost always a lie. The other day,  Mark Herrmann asked why lawyers are turned into liars.  As some of the commenters at Above the Law suggested (in a shockingly relevant reaction to the post), no one forces lawyers to lie. Rather, it’s a matter of convenience and avoidance. Lawyers speak the words that are most advantageous to their position and don’t speak the words that are going to get a judge angry with them or compel a client to run for the door.  The problem is that truth isn’t what people necessarily want to hear, and lawyers (like pretty much everyone else) prefer to give people what they want to the extent it allows lawyers to get what they want from them.

Clients don’t want to know that they are in trouble.  They don’t want to hear that they are facing certain choices, none of them good.  Who would?  But telling them what they want to hear doesn’t change what they’re facing, the choices available to them.  In most instances, whispering sweet words in their ears deprives them of the opportunity to prepare for what they are about to face.  In other words, it often makes the situation worse.

It may well be that they did nothing wrong. It may be that they did nothing from from their unique perspective. It may also be that they did wrong, but refuse to acknowledge it.  Regardless of which it may be, or whether it’s some other variation on a theme, a person staring down the barrel of a gun called “prosecution” has a problem, whether they deserve it or not.  Closing your eyes doesn’t make the gun go away, it just prevents you from seeing it.

While the phenomenon of denial happens with people regardless of the crimes involved, there is a huge difference between the person arrested, as is usually the case for someone charged with a street crime, and someone who faces the possibility of prosecution, as happens with “white collar” crime.  The latter problem is exacerbated by the pervasive belief that they’re not “criminals,” they didn’t “murder anyone,” and therefore it’s absurd that anyone should be investigating them or entertaining their prosecution.  “Why don’t they go out and catch the real criminals?!?”

I’ve long despised the characterization “white collar crime,” as it perpetuates the misguided belief that it’s just a big misunderstanding to be worked out like gentlemen over tea at the United States Attorney’s office.  A prosecution for “white collar crime” is just as brutal as any other crime, except it usually involves a lot more paper.  A sentence for a “white collar crime” is just as horrible as a sentence for any other crime, except it’s more likely to be served in a camp than supermax, though you can’t always count on that either. And few people who perceive themselves as non-criminals are well suited to any incarceration, regardless of ambience.

The point is that if you’ve been given the opportunity to prepare in advance for the pending storm, don’t squander it by embracing denial. You’ve been handed a gift. Granted, not something that was on your birthday list, but a gift nonetheless. You have the ability to make choices, even if the options suck, and can take action to afford yourself the best possible chance to prevail.  Trust me when I tell you that guys detained pending trial are at an extreme disadvantage. You are free. You can do things to help yourself. You can prepare.

To waste this opportunity is a crime.  The relevant inquiry isn’t whether you did anything, but what can you do under the circumstances to help yourself.  If you are mired in denial, you won’t do anything.  Yet the gun is still pointed at your head. Seize the opportunity when it’s available. Embrace your reality and deal with it.  Nothing else is going to help you, and when you get the knock on the door in the wee hours of the morning, there will be no comfort in believing that you did nothing wrong.

Just as many complain about their treatment at the hands of the police, the police complain of their treatment at the hands of others.  And bad as you have it, some police officers believe they have it far worse. This isn’t an outsider guessing at what a cop is thinking (a great parlor game, by the way), but what cops have to say for themselves. From Police One :

A photo of Boles’ dead body began circulating the city. The St. Louis Police Department launched an internal affairs investigation into who took the photo and how it was disseminated.

Ultimately, the Department sought a court order for responding officers’ cell phone photo records, claiming the officers were not cooperating with the investigation and providing the relevant information voluntarily.

A spokesman for the local Police Officers Association was quick to respond, telling the media how awful it was for morale to know your administration:

“[D]oesn’t think that you have the same [Fourth Amendment] rights as every criminal out there has.”

I hear the same confusion in my training about officers’ 1st and 4th Amendment rights — and liabilities — in the internet age. It comes in the form of:

“You mean I put everything on the line to protect and serve and I have fewer Constitutional rights than criminals who violate other peoples’ rights?”

Simply put, yes.

Brush away that tear. There’s more.

[A] New Orleans police officer who commented on a local TV station’s website about the fatal shooting of teenager Trayvon Martin by George Zimmerman. The officer posted, “Act like a Thug Die like one!” When another commenter named “Eddie” questioned whether the officer was racist and a hoodie sweatshirt made someone a thug, the officer replied:

“Eddie come on down to our town with a ‘Hoodie’ and you can join Martin in HELL and talk about your racist stories!”

The officer was suspended and then resigned. The first two reader comments to the article on PoliceOne illustrate confusion:

“When are officers across this country going to learn that your 1st Amendment rights are severely restricted?”

“Absolutely disagree! Our 1st Amendment rights are not restricted simply because we chose to join the law enforcement profession. Nowhere in my Oath of Office did it say “and I forfeit the following USC rights…”

Not only is the article, not to mention the commentary, bizarrely yet facilely misguided, but it feeds the antagonism police feel toward others. And this is what police are telling, teaching and spreading amongst themselves. Before you get unduly outraged, it bears a certain similarity to those who hate all cops, impugn their motives at every turn and relies on facile rationalizations to blame them under every circumstance. Then again, they have guns and shields, which makes their threats of harm a bit more serious.

What this shows isn’t that cops have fewer rights than anyone else, but different responsibilities. When they speak in uniform or as a self-identified police officer, they can’t spew the hatred, threats and venom they feel as private citizens because they are speaking as an agent of government.

That’s the job they chose, taking on a distinct role. On the bright side, they get to shoot dogs whenever they feel the slightest hint of personal threat. On the dark side, they can’t  put every cool pic they have on the internet. We all have trade-offs in life, just as we can’t fully exercise our First Amendment rights to police officers or they will think us contemptuous of their authority, and we prefer not to be beaten.

But the question isn’t always their right to speak their mind, but what speaking their mind tell us about them. For example, an expression that might be seen as a good reason to seek psychiatric treatment as a private citizen could form the basis for a belief that a police officer is unfit to be given and gun and set loose on society.  The issue isn’t the right of free speech, but the right of a person who has exercised free speech to be a cop.  If what you have to say suggests that you are a danger to society, then maybe you shouldn’t be handed a gun and shield? 

But don’t pull out that tiny violin just yet.  Police still have a few rights in their bag, such as the right to remain silent as exercised by former Bell, California Police Chief Randy Adams. Fighting for his due, a pension of $510,000 following his glorious one year tenure as Chief, CalPERS tried to turn the tables on him.

Already one of California’s highest paid public pensioners, former Bell Police Chief Randy Adams this week asked a state pension panel to double his retirement pay to reflect the huge salary he received during his brief stint as the top cop in the scandal-plagued city.

If  Adams wins his case, which is being heard in Orange County, his pension would zoom to $510,000 a year, making him the second-highest-paid public pensioner in California.

On the witness stand Thursday, Adams invoked his 5th Amendment right to not incriminate himself 20 times, including when asked about his Bell salary, which was among the highest law enforcement paychecks in the nation.

For the uninitiated, there is no entitlement more sacred to law enforcement than their pension. They earn it by risking their lives every day on the streets protecting you from the criminals.  Even if they sit in an office, the biggest risk they face is a paper cut and they can’t distinguish between the people they’re trying to save and the criminals they’re saving them from. Be thankful puppies are all furry, or they might be shooting children by mistake.

Rather than complain about how criminals have more rights that cops, every sworn officer should think long and hard about Chief Randy Adam’s invocation of his right not to incriminate himself during his testimony to get his rightful pension and thank their lucky stars they are cops in America.   They may not be able to whine as freely as they like, but no one can stop them from saying the most important thing:Viginti et ex.

H/T FritzMuffKnuckle

The motion to suppress in People v. McNair probably would have gone down in the usual way,  Via Eric Dolan’s RocLaw:

At the suppression hearing, Officer Ryan Hartley testified that he received a tip from a “concerned citizen” that the defendant “sells cocaine and carries a handgun.” Based on that tip, Officer Hartley and other members of the Rochester police department went to the defendant’s home, and watched as the defendant arrived in a minivan, entered the residence, and then exited about 15 minutes later and drove away.

The defendant jumped out of his car and appeared “to place something under the vehicle.” Said “something” turned out to be a bag of crack. Defendant was arrested, and the arresting officer took the defendant’s keys to Officer Hartley, who was still back at the defendant’s house.

At the suppression hearing, Officer Hartley testified that, at about 8:00pm, he used the defendant’s keys to open the porch door of defendant’s house, but only so that he could knock on the inner door to see if anyone else was in the house. Officer Hartley “testified that knocking on the door caused the door to open and an audible alarm was triggered.” As the police had yet to obtain a warrant to search the defendant’s house, Officer Hartley testified that “the perimeter of the location was secured,” some other officers went to get a warrant, and the house was not entered and searched until the warrant was obtained at about 11:00pm, at which time the guns and drugs were found.