Long time readers may recall that I’ve discussed this before, but for the benefit of anyone unaware, it’s worth repeating.  If you have something to say about a post at Simple Justice, twitting about it is not the way to engage in a conversation.  The phrase I’ve come up with to gently make this point is to respond that twitter is fleeting; leave a comment.

This occurred to me again yesterday due to some reactions to my post about Joel Rosenberg.  There were a number of very kind thoughts expressed about Joel on twitter, but few would ever know.  More importantly, Joel’s wife, Felicia, would never see them.  If anything, my hope would be that Felicia would know that Joel’s memory survives, and my guess is that the twitterers would want that as well.  So what are they thinking?

A twit* about a post makes no sense.  Twitter is a different platform, as are Facebook and, for the three people who just joined the internet last week and don’t know much about it, Google+.  It’s not that it’s evil to use a platform other than the one where the thing about which you’re commenting exists, but that it’s ineffective.  If there is a conversation happening in one room, talking in another room is a waste of time. You aren’t part of the conversation.

Twitter is particularly worthless when it comes to offering thoughts, deep or angry, nice or angry, about a blawg post.  Only people who follow you or to whom you direct your twit will ever see it, and then only for an instant.  Then it goes down the list and fades into obscurity.  So you’ve got a really cool thing to say?  If no one sees it, then what’s your post.  Think, “if a tree falls in the forest and there’s no on there to hear it,” sort of thing.

I have tried, in my inartful way, to make this point over the past few years, to no avail.  Some people have reacted poorly to my suggestion, outraged that I am attempting to dictate where they are allowed to comment on my posts. Others can’t be bothered. Twitter is easy, far easier than expressing fully formed ideas (especially since the new, horribly difficult captcha that my program provider has rammed down my throat). 

But twitter is fleeting.  It’s there, then it’s gone.

My initial antagonism toward twitter has given way to my occasional use, and it can be fun at times.  While I have accounts on Facebook and Google+, I never use them and they’re merely placeholders.  If someone writes something to me there, I will never see them. But I usually see twits directed to me.  I’m not unappreciative of the twits that react to posts here, but it just seems to much more useful to post a comment, so that anyone reading the post can see the thought as well.  Maybe it’s a great idea. Maybe not. But it just makes no sense to me for someone to try to discuss a blawg post on a different platform.

And while we’re on the subject, twitter is a really lousy platform for discussion.  Any idea that requires more than 140 characters is lost, or become the content of the dreaded serial twit, which defeats the whole point of twitter.  This is particularly true of people new to twitter, who twit to people they don’t know and come off as either antagonistic or demand a response that would require 10,000 words.  They don’t get the medium.  I just ignore them.

But if you’ve got something you think is worthy of saying about a post at SJ, I urge you to do so in a comment here rather than a twit.  I, and many others, usually enjoy the conversation. It’s one of the features here. If you talk about it elsewhere, then it contributes nothing to the discussion and as far as anyone else knows, it never happened.

* It’s become my habit to call those things we do on twitter “twits.”  I didn’t like the word “tweet” in the beginning, and still don’t. You may think me a complete jerk for doing so, but that’s what I choose to do.

I’ve been informed, usually be a youthful reader, that they aren’t called “twits,” but tweets, because they assume I’m either too old or stupid to realize.  I’ve also been informed that my choice of calling them “twits” is so disturbing that they can’t bear to read my posts.  Anyone who feels this way is urged to go elsewhere immediately, for both our sakes. I call them “twits” and plan to continue to do so. I am not 12 and do not favor cutesy internet lingo. You are not my tweeples. If you can’t get past it, we have nothing more to discuss.

It’s amazing that this hadn’t happened before, given the message hammered home time and again by Homeland Security.  If you see something, say something.  Or if you want to get revenge on someone who pissed you off, say something.  Or if you’re a blithering idiot and think it would be hysterically funny, say something.  Then sit back and enjoy the show.

Via Kevin Underhill at Lowering the Bar :

Hey, you know what’d be a hilarious prank? Calling the airport to claim (falsely) that a specific traveler is trying to get liquid explosives past the TSA and onto a plane. If the plane has already left, they’ll probably turn it around and arrest him when it lands! Ruining everybody’s day for no reason at all! Hah! Hilarious!

This morning a US Air flight from Philadelphia to Dallas was indeed turned around after some jackass called in a fake bomb threat, a call that unlike most such calls named a specific person. The call was made about 7 a.m., but the plane had already left by the time the warning was passed on. The usual cast of thousands (all heavily armed) surrounded and boarded the plane after it landed back in Philly, extracted the suspect and searched him and his luggage. Ultimately they found nothing, and cleared the flight to proceed. “It was a hoax all the way through,” an official said.

Unsatisfied with the hilarious combination of making a planeful of people miserable and mobilizing an army in the expectation of finally catching someone doing something bad, to prove to the public the value of the TSA, Kevin goes on to spell out a few inherent issues with how this was handled.

Note that no one involved seems to have taken the position that, hey, nothing to worry about, because even if this is true he’ll never get past the TSA with liquid explosives; that’s a crack team on which we can safely rely. No one was detained by that thought for even a moment.

Also, note that the call came in “about 7 a.m.,” and the information still had not been passed on by the time the plane departed at 7:39. That is, even though they had a specific name of a possible terrorist and so presumably knew the specific flight he would be on, it took over half an hour to get this information from a phone in the airport to another location in that same airport, by which time the plane was well on its way.

Nor does it appear that anyone thought, wow, you know what, this is probably a hoax, and calling the plane back now really wouldn’t do any good anyway. If the guy does have a bomb, he’ll just set it off when he sees the plane turning around. If he doesn’t, we’re ruining everybody’s day for nothing. There’s no need to worry about him taking over and crashing the plane into something, because if he uses the bomb to blow the cockpit door open then that’s pretty much a done deal. So why doesn’t somebody just meet the plane when it lands and we’ll check things out then?

And anyway, the have all that cool SWAT stuff, and it would be a shame if they didn’t get to use it.

It was subsequently revealed that this wasn’t a hoax for lulz, but revenge.

T]he Philadelphia Enquirer is reporting the call was allegedly placed by a 26-year-old Philadelphia man who was upset about a “compromising” photo the passenger had posted on Facebook depicting himself and the caller’s girlfriend. (She was the passenger’s ex-girlfriend, which is presumably where he got the compromising photo.)

According to the report, the caller, who I’ll refer to as “Kenny Smith” because that’s his name, called authorities from a pay phone at about 7:20 a.m. the morning of the flight to make the threat. Smith was at least clever enough to avoid using his real name, although I can’t say that his alias choice, “George Michaels,” is especially convincing.

Yet again, Kevin has done a masterful job of recounting TSA zaniness that not only showcases the stupidity, but the incompetence, of our protectors.  The problem for the TSA, of course, is they’ve got their nuts in a vice of their own making. Having justified their existence and intrusiveness on the basis of protecting us from terrorists, the possibility that a terrorist not of the FBI’s making might explode a bomb on a plane is intolerable.  It can’t be allowed, no matter how extreme (and poorly handled) the reaction may be.

Here, the hoaxster was a moron. While the joke probably wasn’t funny to the passengers on the place, and, had one of the multitude of armed saviors accidently tripped and blown away a few dozen passengers, their families, few hoaxsters concern themselves with such eventualities. After all, what’s a few dead bodies compared with potential hilarity of nailing one’s love rival?

Had the hoaxster been a bit more thoughtful about his handling of the joke, he would have not only have caused a similar reaction, maybe even  scrambling some fighter jets to take down the plane before it reached Detroit, but he could have done so without getting caught.  A well-placed anonymous call isn’t all that hard to do, especially if the caller isn’t a total moron.

Didn’t anyone at the TSA think about this possibility?  No doubt they did, but what would you have them do? Ignore calls they suspect to be hoax’s and risk being wrong, thus revealing that this is just a huge farce and monumental disaster?  The only aspect of this story that seems truly shocking is that it doesn’t happen all the time. 

And if it does, you can bet that eventually someone will accidently pull the trigger and compel a brief explanation by a government spokesman about how they were just following procedures.  But at least we can rest assured that the dead folks were killed by good, well-meaning Americans, and not those terrible terrorists.

It’s traditional to remember someone who has passed by an unveiling, a public memorial to his memory.  It’s been a  little more than a year since the passing of a dear friend to me and this blawg, Joel Rosenberg.  I’ve thought of Joel, or Jdog as he was jokingly called around here, often over the past year, his wit, wisdom and skepticism challenged me regularly. 

Yesterday, someone who called himself “Bill” and left a phony email address left a comment on an old post about Joel. 

I’m glad this fat, POS is dead. Joel was a complete fucktard.
Rest in Hell you retarded, worthless fuckstick!

When the Department of Justice announced that it authorized an extension of authority to the Bureau of Alcohol, Tobacco, Firearms and Explosives to engage in the forfeiture of property related to controlled substances, it seemed like a non-event. At worst, it ended the charade of agencies handing off property to other agencies to do as they will, and wouldn’t make a ripple as far as the victims of forfeiture are concerned.

But the efforts of Eapan Thampy, head of Americans for Forfeiture Reform, who has been guest-blogging up a storm at Radley Balko’s Agitator, has kept forfeiture on my mind.  In a Cato video,  Walter Olson gives a good overview of some of the more outrageous uses of forfeiture.  At the same time, a Tennessee backwater  wants a drug dog to get in on the action, lest they miss out on the gravy train.

Civil forfeiture is a disaster, one of the most abusive, and easily abused, powers the government gives itself. It makes for a good press release and easy justification, as it purportedly takes the profit out of crime. Any government action that can reduced to a pleasing slogan is an easy sell to the public. What’s not to like?

Despite efforts like Eapan’s and Wally’s, the public has little clue what this is all about and why it’s a problem.  After all, there is no advocacy group arguing in support of a drug dealer’s right to keep his ill-gotten gains, and that’s what it’s all about, right?  Theoretically, true, and if the government could manage to limit itself to property that was truly the proceeds of crime, no one would shed a tear.

But it’s a cash machine for the government, justified by what appears superficially to be a worthy cause,

So why bother writing about it?  After thinking more about the DOJs extension of authority to ATF, and despite the fact that this has no practical impact, it reflects the fact that the Obama Administration, by Attorney General Eric Holder, has chosen not to reform the atrocity of civil forfeiture, to honor meaningful due process and to protect the rights of innocent Americans from having the government steal their property under color of law, but rather to make a bad thing worse. 

After the nightmare Bush II years when it came to “tough on crime,” and screw civil rights, the election of Barack Obama seemed to offer “hope” and “audacity,” at least on the constitutional front.  There would be a president in the White House who would appoint federal judges who, although not quite friendly to our arguments, wouldn’t be overtly hostile.  And abuses, from torture to rendition, would be seen through the eyes of a man who appreciated and understood the Constitution. 

It’s bad when people you expect to be antagonistic to your beliefs takes office.  It’s crushing when the man you believe will be better, the only hope you’ve got, is no different. President Obama has taken forfeiture and pushed it even further.

This is not a political blog, and I do my utmost to steer clear of political disputes. This has nothing to do with the arguments favoring one party over another, but has to do with the current administration’s announcement, in the midst of campaign season, of a course of action that further embeds civil forfeiture in our system.  Would the other team do the same, or worse? Perhaps.  But Holder did it now, and made his position clear.

There was once a time when the courts severely frowned on forfeiture. This wasn’t so long ago. But in the course of a generation, it’s become part of our legal fabric, given little thought and allowed, indeed enabled, as a matter of course. It doesn’t have to be this way.

The mere possession of large amounts of cash are presumptively drug-related.  The government made clear in the 1980s that it hated cash, as it couldn’t track it for tax evasion and criminal proceeds purposes. The subsequent use of credit and debit cards followed, where every dollar spent could be easily traced and counted.  Now, anyone found in possession of substantial amounts of cash can expect it to be seized, and the burden is on the citizen to prove that his money is legally derived and untainted by criminal conduct.

The concept has gotten so crazy that cars belonging to one fellow are seized when driven by another who is alleged to be drunk.  They are the “instrumentality of the crime” of drunk driving, even if the owner of the car, who will be the person to suffer the loss, was nowhere in sight.  Or what of the family home that housed the computer on which an obscene picture was found? Instrumentality, baby. The “thing” offends the sovereign, and the sovereign is cleaning up.

I don’t know why I bother mentioning some of the irrationality of forfeiture, as a thorough discussion could take many thousands of words, and the best I can do here is scratch the surface.  My point is that this otherwise irrelevant act by Holder leaves no doubt that our current administration, which tries to distinguish itself from the other guys as the saviors of civil rights, is shown to be a load of crap. Neither team has the slightest interest in slowing down the gravy train, no less stopping it.

I might suggest that the best answer to forfeiture is not to commit a crime, but then, crime has nothing to do with it. And that’s the heart of the problem.  Instead, I hope you don’t have the misfortune to meet forfeiture on some backroad.  And the only thing you can count on is that it’s not going to get any better, as Eric Holder just made clear.

Oscar Wilde notoriously said a cynic is someone who knows the price of everything and the value of nothing.  Todd Rutherford knew the price of a good book review.  From the New York Times :

In the fall of 2010, Mr. Rutherford started a Web site, GettingBookReviews.com. At first, he advertised that he would review a book for $99. But some clients wanted a chorus proclaiming their excellence. So, for $499, Mr. Rutherford would do 20 online reviews. A few people needed a whole orchestra. For $999, he would do 50.

There were immediate complaints in online forums that the service was violating the sacred arm’s-length relationship between reviewer and author. But there were also orders, a lot of them. Before he knew it, he was taking in $28,000 a month.

Consumer reviews are powerful because, unlike old-style advertising and marketing, they offer the illusion of truth. They purport to be testimonials of real people, even though some are bought and sold just like everything else on the commercial Internet.

As my experience at the LawTech Camp [highlighted by legal futurist and technology consultant, Richard Susskind] makes clear, there is tremendous creative ferment taking hold in many corners of the legal profession, albeit the safe and established legal brands are not leading the way.  So that is our dilemma—in the year 2012, there is no conservative path that will take most law students to where they want to go. Everything options has risk. 

As a young lawyer once explained to me, integrity is a luxury that young lawyers can’t afford.  They need to make a living, and they will do whatever they have to do to accomplish it.  Without risk, there’s no reward, and as Bill says, “there is no conservative path that will take most law students to where they want to go.”  So why not?

An Illinois federal district court recently analyzed the Wiretap Act as it applies to packet sniffing and held that “the interception of communications sent over unencrypted Wi-Fi networks” does not violate the statute. In re Innovatio IP Ventures, LLC Patent Litigation , No. 11 C 9308 (N.D. Ill. 2012)….

After a discussion of how packets are transmitted in a wireless network and the meaning of the word “intercept” in the Wiretap Act, the court determined that the proper “question is not … whether the networks are “readily available to the general public,” but instead whether the network is configured in such a way so that the electronic communications sent over the network are readily available.” The Wiretap Act provides an exception if the communications are publicly available (18 U.S.C. § 2511(g)(i)). The court concluded that the communications themselves are readily available because they are “open to such interference from anyone with the right equipment” – equipment available for a couple hundred dollars and the right open source software.

(g) It shall not be unlawful under this chapter or chapter 121 of this title for any person—
(i) to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public;

Many Wi-Fi networks provided by commercial establishments (such as coffee shops and restaurants) are unencrypted, and open to such interference from anyone with the right equipment. In light of the ease of “sniffing” Wi-Fi networks, the court concludes that the communications sent on an unencrypted Wi-Fi network are readily available to the general public.

I don’t think that’s right. Look closely at the text: “configured so that such electronic communication is readily accessible to the general public.” In my view, that text focuses on the intent of the designer — the person who does the configuring of the network so that it works a particular way — to design the network so that the general public was supposed to be able to access them. Of course, you might not know the actual intent of the designer with 100% certainty. But with many technologies, it’s obvious what counts as an expected use and what counts as an unexpected use.

Any tension between that conclusion and the public’s expectation of privacy is the product of the law’s constant struggle to keep up with changing technology. Five or ten years ago, sniffing technology might have been more difficult to obtain, and the court’s conclusion might have been different. But it is not the court’s job to update the law to provide protection for consumers against ever changing technology. Only Congress, after balancing any competing policy interests, can play that role…. Unless and until Congress chooses to amend the Wiretap Act, the interception of communications sent over unencrypted Wi-Fi networks is permissible.

While I take no issue, per se, with comments from non-lawyers at SJ, it’s worth noting that this is a blawg (law + blog = blawg).  What that means, at least to me (and I have the only vote that counts here) is that what appears in the comments is an arguably accurate reflection of the law.

My reason is straightforward: I am concerned that someone who reads something here not be misled or confused as to the law.  This is where the problem arises.

Due to the nature of the things that interest me, what I charitably refer to as my “content,” it tends to draw a group of readers who are not lawyer, but are very angry with the law, the courts, the police and the prosecutors.  And they use every opportunity to make their views known.

Much as we may, at least superficially, share certain sympathies, my tolerance for these sorts of comments is limited.  They are, in large measure, counterproductive to any meaningful effort to improve the things that are wrong with the system, as the nature of simplistic, angry rants reinforces beliefs that the antagonists to the system are a bunch of ignorant nuts.  While finding a conspiracy under every rock, or blindly cheerleading your team against the other, may thrill the angry masses, it’s not in the least persuasive to lawyers and judges in getting them to see the light.

The other side is that the angry folks tend to significantly misstate the law.  By significantly, I mean mindnumbingly, grotesquely, horribly wrong.  It’s not entirely their fault, as they are neither educated in the law nor experienced in the trenches. There a bunch of other websites and blogs that are gathering places for the angry, the haters, and they reinforce erroneous understandings by promoting “experts” who may be on the right side of an issue, but get there by taking a path of ignorance and irrationality. 

My view is that these websites and blogs (note blog, not blawg) serve a purpose, allowing angry people to vent and disseminate substantive information about bad things that are happening.  At the same time, they make people stupider.  Rarely will a lawyer stumble in and try to sort out the arguments and claims, as it’s just too difficult. These are deeply embedded, if utterly insane, beliefs.

What I fear is that SJ will become a gathering place for the angry and ignorant.  I will not allow that to happen.  It’s not that I don’t appreciate the anger, or necessarily disagree with the message, but I cannot, I will not, allow the comments at SJ to become a festering stew of angry people whose comments either chase knowledgeable people away or make people less knowledgable for having read them. 

This happened yesterday with a  comment by FitzMuffknuckle about ignorance of the law. which has become a rallying cry against cops, prosecutors and judges who err in the performance of their duties.  I have great respect for Fritz, who is a moderator at Reddit’s Bad Cop, No Donut, and with whom I’ve had a number of discussions. He may not be a lawyer, but he’s shown a sincere interest in elevating the level of understanding of the law. He’s also been very helpful to me, correcting my typos and providing me with stories.

My response to Fritz was followed up by another non-lawyer commenter, who failed to take a cue from my response and instead insisted on pushing the point. That’s where I draw the line.  In another example, a commenter who seems to have an incredible facility with blaming the cops even when the post has nothing to do with the police, offered what to a non-lawyer might seem to be legal analysis. It was dead wrong, but the non-lawyer wouldn’t know that.

I emailed to tell him that I would appreciate his not putting anything in his comments that suggested the state of the law, lest someone think he was a lawyer and credit his comment to their enormous detriment.  When a non-lawyer reads a post written by a lawyer, they have a reasonable expectation that the information isn’t totally wrong or utterly insane.  It’s my responsibility, as a lawyer and as the guy with the keys here, to make sure people’s expectations aren’t dashed on the rocks of ignorance.

And as long as I’m on this point, there is something else that has been troubling me for a while. Some of my friends in the blogosphere/blawgosphere don’t share my concerns. I hesitate to attribute reason to their choices, but they don’t seem to worry about whether things posted by others, whether in the comments or by guest writers,

The bloggers/blawgers are thoughtful and accurate when it comes to their own writing, yet feel no compulsion to act when someone else muddies the waters with misinformation.  I keep waiting for them to jump in a correct some monumental error or absurdly inane comments or posts. I’m still waiting.

I recently had an email exchange with a person whose blog is both credible and informative, but who has handed the keys to the place to others while the person pursues other interests.  Some of the posted in his absence were utterly ignorant.  The person responded that if I didn’t like what was posted, don’t read it. Point taken.  However, the lack of concern about credibility is something that will color my view from now on.

While SJ exists primarily as a vehicle for me to indulge my enjoyment of writing, there remains a critical concern that nothing that appears here makes a reader stupider for having read it.  It may not endear me to commenters when I criticize what they’ve written, or tossed them off as commenters if they can’t control themselves, but that’s the price I pay for my beliefs.  That others don’t share a similar concern for what appears on their blogs/blawgs disturbs me deeply. 

The internet is a wonderful thing, but like all things, it can be used for good or evil. Making people stupider is evil. It’s the responsibility of every credible blogger/blawger to not let that happen.

In a doctrinally bankrupt decision, the Supreme Court in  Michigan Dep’t of State Police v. Sitz, majority opinion by Chief Justice William Rhenquist, held that there is a caveat in the Fourth Amendment written in ink only visible to six member of the court that allowed an exception to seize people who have given the police no reason in the world to be seized if the state can come up with a really good story about why it wants to.  Sobriety field testing was just such a story.

The court only had a few conditions in letting the cops have their way: that it be truly random, and not used as a pretense to profile drivers of a color the cops didn’t like, and that its randomness be reflected by an advance plan of what they would do, when and where they would do it. Because it would be pretty easy to claim an ad hoc roving checkpoint whenever the police decided they needed to make some collars for their quotas otherwise.

The idea was that an operational plan would be filed in advance of a checkpoint, and it would reflect the random manner of stopping otherwise innocent people.  Whether every third car, maybe sixth, whatever, but that was as far as the court would let them go.

Still, this proved too hard for cops in Florida.  From WTSP :

So let’s go back to that DUI checkpoint last December. Pasco Sheriff’s deputies, Florida Highway Patrol troopers, and Tarpon Springs Police officers were in charge. The operational plan they filed stated they were going to pull over every third vehicle. Daniels noticed on the police’s own squad car video recordings that the three agencies were breaking the rules. The video clearly shows the flagman at the front of the checkpoint wasn’t following the plan and flagging in three and four cars at the time.

[I]nstead of dropping the cases, the state attorney’s office took a new tactic and it got ten law enforcement officers who worked that night to sign affidavits saying the operational plan was followed, which was a bald-faced lie.

A spokesman says Assistant State Attorney Vin [irony alert] Petty missed that fact while he was at the checkpoint, and when he first watched the video, and that’s why he had officers sign the affidavits. The police agencies also claim they had no idea they were violating the law.

Clearly, there is no reason to expect that either the Assistant State Attorney or the multitude of officers from various departments would have any clue as to what the lawful requirements of a checkpoint might be. That would require training, perhaps even reading a Supreme Court decision (if not the Classic Comics version), and would take time away from keeping our roads safe.  Or perhaps the people involved were intellectually challenged, making counting by threes beyond their ken, and thus better suited for work at the Department of Justice.

The very notion of checkpoints, where people for whom no suspicion exists are seized, is a facial affront to the core of the Fourth Amendment, that no person be subject to unreasonable search or seizure.  Checkpoints, by definition, provide no reason. Even random, they elevate the state’s concern that people are having too much fun over the citizens right to not be seized unless there is reason to believe he is breaking the law. 

But even if the Supreme Court majority is willing to shut its eyes as tight as possible, and picture an exception in the law to appease the MADD gods, would it kill the police to formulate a lawful plan and execute it properly?  Perhaps a remedial course in counting by threes would help?  Or maybe just stop lying in affidavits to cover your flagrantly unlawful conduct?

Or maybe its time to revisit the concept of random checkpoints because it’s nearly impossible for the defendant to know whether they’ve been conducted lawfully?  This time, there was a dashcam video that enabled eagle-eyed Sammis to see that the plan was totally ignored, but eventually the cops will figure out that if they point their cruiser the other way, no one will be the wiser.

Take away the robe and they’re just as  likely to get beaten as anyone else.  But when they sit on the bench, literally or figuratively, they are quite special.  We call them “your honor.” Their jokes are significantly funnier than they were before they were judge. We listen to what they say and avoid saying anything in response that will piss them off.  Not that the occasional snarky thought doesn’t go through our mind.

But what about when the judge uses his robe for his own collateral benefit?

At Defending People, Houston criminal defense lawyer Mark Bennett was the target of Judge Ruben Guerrero, who had a lawyer threaten Bennett for creating the domain JudgeRubenGuerrero.com, which is slightly less than helpful in the judge’s re-election campaign. 

Ethical proscriptions compel lawyer to be honest and help educate the public about the law, which should certainly cover Bennett’s effort to let people know that he doesn’t think they should vote for Ruben Guerrero because he’s not a very good judge.

Guerrero is unfair to the defense.

“Guerrero never awed attorneys with his legal brilliance on the bench.”

Ruben Guerrero thinks that prosecutors represent complaining witnesses.

On the other hand, Judge Guerrero’s lawyer argued that Bennett, by putting up a website that exhorts voters to “Unelect Judge Guerrero,” has appropriated the Judge’s name.

Appropriation falls under the category of invasion of privacy and protects the right of an individual to control the commercial use of his identity.

This, of course, raises the question of what “commercial use” Judge Guerrero plans for his identity. 

Standing up to a sitting judge’s threat isn’t something most lawyers would do. But most lawyers aren’t Bennett, and so he responded to the take-down letter’s threat in the best criminal defense lawyer fashion.

[P]lease describe what you consider “the necessary legal action.” I’m a criminal-defense trial lawyer; I need things spelled out. 

And maybe in the exercise of judicial discretion, Judge Ruben Guerrero has not been heard from since.  This doesn’t mean that he won’t use his office to try to smack Bennett should Ruben be re-elected and Bennett come before him, but under the circumstances, between the smarter move of recusal or the stupider move of pay-back followed by well-founded judicial complaint, perhaps Judge Guerrero’s lawyer has advised him that the better move is to protect his brand on his own end rather then swing his robe in Bennett’s direction.

But then, are there no benefits to being a sitting judge beyond having lawyers laugh at your jokes?  A brouhaha has occurred, reflected in a  Daily News editorial questioning whether judicial license plates in New York serve to let judges break the law with impunity.

The state Commission on Judicial Conduct is seeking public comment on whether judges should get the perks of license plates that advertise their positions on the bench or park-where-you-want placards.

You can imagine the responses New Yorkers will provide, ll of which will boil down, minus expletives, to: No way, no how.

The commission was prompted to make inquiry by the case of an upstate part-time town justice who arranged to fix a ticket she had gotten, as well as a ticket issued to the wife of another justice.

While “ticket fixing” by judges for friends, kids and themselves has always been available, provided the judge is inclined to break the law for his own benefit. But that’s an entirely different issue than whether judicial plates give judge’s a free ride.

Further, the commission asserted, “judicial license plates distort the normal process of enforcing traffic laws and the delicate position faced by law enforcement officers when they stop a vehicle with judicial plates.”

Meaning cop sees that speeding driver is a judge and so goes easy. Meaning judge gets an unwarranted break without having to say anything.

The plate does the identifying. The plate does the talking. The plate amounts to a moving violation of judicial ethics.

Perhaps, but judicial plates allow judges to park in reserved spots around the courthouse, which seems like a perk they certainly deserve given the crappy pay they receive and the expectation that they be on the bench to do their job.  Placards could perform a similar purpose, but they’re much easier to fake.

Yet the core of the complaint is that cops won’t ticket someone with judicial plates. Of course, the worst kept secret on the road is cops won’t ticket fellow cops or their family members and close friends, which is why they hand out their union cards. If we’re going to start worrying about who’s cheating the law, judges are hardly the problem when compared to a police officer’s 18-year-old son.

Rather than give judges a free pass, I suspect that judicial plates make them a target for criticism, if not from the cops, then from the public. Given the ubiquitous cellphone video cameras, judges have to be on their best behavior when driving so that some citizen doesn’t video their wild driving and put it on Youtube or a website about judges behaving badly.  If I had judicial plates, I wouldn’t do a thing to open myself to criticism because I couldn’t hide my wrong from the public.

The  New York State Commission on Judicial Conduct is  seeking input on whether judicial plates are a license to break the law.  It strikes me that they would do better to not only require judges to use judicial plates, but to include on the plates a “How’s my driving?” phone number to call if a person empowered to send people to prison for violating the law can’t manage to adhere to the law himself.

As for cops giving judges a free pass, spare me. The hypocrisy inherent in that argument is to ridiculous for words. I would suggest a similar “how’s my driving” on all cop cars, but that would just mean they were put on the list for a bravery citation, which they would trot out the next time they testified to prove to the jury what fabulously trustworthy police officers they are. 

And for those who worry that judges are getting away with something, there is always the Queen’s DA’s refusal to do anything about the blow to Judge Raffeale’s throat or Bennett’s website to remind them that not even judges can avoid the consequences of the law.  Not all the time, anyway.

Florida fashionista lawyer, Carolyn Kellman, is looking really good right about now.  She returned a pair of shorts to a store called “Forever 21,” and received a refund that was one cent less than what she paid.  From the Daily Business Review :

Carolyn Kellman, whose fashion sense was profiled in the Miami Herald in 2007, paid $14.46 for the shorts at the Forever 21 store in the Dolphin Mall on May 12, the complaint filed by Kevin Love of Criden & Love in South Miami said.

Kellman, an attorney with the Strickland Law Firm in Coral Gables, returned the shorts to the Forever 21 in the Shops@Sunset Place on May 30 but was credited $14.45, “or exactly $0.01 less,” the complaint said.

On June 27, Kellman was charged $11.57 for a skirt, also black, at the Sunset Place store. She returned it July 13 and was credited $11.56, according to the complaint, which attaches copies of her receipts and alleges breach of contract, unfair and deceptive practices, and unjust enrichment.

How many people would think “class action” over a penny?  But then, take a penny from every person who returns a garment and, 1.500001 million returns later, you’re talking upper court threshold, baby. Seriously, Kellman alleges this is a penny-skimming scheme, the theory being that the amount being glommed is too small for anyone to take any real action.  If a customer complains, give them back their penny, but the expectation is that it’s not even worth the time of a phone call, and few people are going to demand the return of their cent.  Mind you, the same theory holds when the amount is a dollar, except companies that sneak an extra dollar in their billings are doing 100 times better than Forever 21.

While many will snicker at a case like this being brought as a class action, this is what I consider one of the best uses of class actions available.  This falls precisely into the realm, where a business is taking money, some might call it stealing, to which it’s not entitled, but in amounts too small for anyone to fight over.  It’s still wrong, indeed very wrong because of how calculated it is, and yet escapes redress.

The irony in a case like this is that, as is invariably the complaint about class actions, the lawyers make out like bandits while the class gets a couple pennies.  In this case, that might be full compensation, but the unseemly aspect of the lawyers getting millions is always troubling.  This is why guys like  Ted Franks keep an eye on such shenanigans.

And it appears quite likely that this case may produce substantial legal fees for the lawyer representing the class despite there being extremely limited recovery for the class itself.  Indeed, this may end up with the company promising to stop glomming pennies and nothing more.  Yet, the lawyers will get paid, with the zeroes being on the other side of the decimal point.

But how else are companies to steal small to be stopped?  Certainly, no one would argue that it’s acceptable for companies to withhold money when they shouldn’t, but which one of us would want to spend 1000 hours prosecuting a case over a penny?  Indeed, it would never happen, since they would just flip you a dime and tell you to keep the change.  And then continue skimming pennies from everyone else.

The Herald photographed [Kellman] wearing Christian Louboutin shoes, a Panerai watch, Sacri Tabu bracelet and gold beads from Studio LX South Miami, a vintage ivory pendant on a black suede cord by Shelly Litvak and diamond stud earrings. She was holding a Balenciaga motorcycle weekender bag.

Nonetheless, I admire this lawyer’s tenacity and the fact that was sufficiently pissed off to do something over a penny.  You go, girl.