I was quite surprised when my pal Eric Mayer, the  Unwashed Advocate (a title that still gives me the willies) informed me of a very important study. I was less surprised to learn that it came out of MIT, since I expect all the really important scientific work to come from there.

What makes this study so critical is the meteoric rise in readers of blogs in the internet who share a certain fashion trend, not only considered highly attractive in some circles but also deemed quite utilitarian.  That’s right, it’s those who wear the tin foil hat. This information is not only valuable to readers of SJ, but to many of the blogs I regularly read, like Balko’s Agitator, Popehat, Turley, Berman’s  Sentencing Law and even the Volokh Conspiracy, which has lately become a hotbed of shiny chapeaus.

Among a fringe community of paranoids, aluminum helmets serve as the protective measure of choice against invasive radio signals. We investigate the efficacy of three aluminum helmet designs on a sample group of four individuals. Using a $250,000 network analyser, we find that although on average all helmets attenuate invasive radio frequencies in either directions (either emanating from an outside source, or emanating from the cranium of the subject), certain frequencies are in fact greatly amplified. These amplified frequencies coincide with radio bands reserved for government use according to the Federal Communication Commission (FCC). Statistical evidence suggests the use of helmets may in fact enhance the government’s invasive abilities. We speculate that the government may in fact have started the helmet craze for this reason.

You read that correctly.  And no, it’s not a matter of style, as testing was done on three of the most common, and dare I say attractive, styles.

The three helmet types tested

The Classical	The Fez
The Centurion

Personally, I think the Centurion is a bit pretentious for daytime wear, and suggest that it would be best used only in the evening or for formal occasions.

And what, you are no doubt dying to know, was the outcome?

Conclusion

The helmets amplify frequency bands that coincide with those allocated to the US government between 1.2 Ghz and 1.4 Ghz. According to the FCC, These bands are supposedly reserved for ”radio location” (ie, GPS), and other communications with satellites. The 2.6 Ghz band coincides with mobile phone technology. Though not affiliated by government, these bands are at the hands of multinational corporations.
It requires no stretch of the imagination to conclude that the current helmet craze is likely to have been propagated by the Government, possibly with the involvement of the FCC. We hope this report will encourage the paranoid community to develop improved helmet designs to avoid falling prey to these shortcomings.

No doubt the same two things that struck me in the conclusion struck you as well.  Mobile phone technology?  GPS?  Coincidence?  If you think it’s possible, then you are not a true paranoid and might as well just go about your daily life as if the government isn’t shooting gamma rays directly at you. Heh.

As I anticipate that you will certainly want to show your deep appreciation for this critical study by sending a substantial check to MIT, please note on the check that it is being sent because of this PSA and include my name in crayon, so that it will be applied to any outstanding tuition bills due.  It’s the least you can do to thank me for this fashion advice.

It’s not just that Charles Daum sold himself. It’s that he sold himself for a mere $6,000, proving Churchill’s quip to be too true.  Once you’ve established what you are, everything else is just negotiating the fee.  Daum was a criminal defense lawyer who “made a living by defending people accused of run-of-the-mill crimes.”  And now he’s convicted of his own.

Via NPR, by way of a twit from Mark Bennett :

The accused drug dealer, Delante White, turned the tables and helped convict his own defense lawyer of manufacturing evidence and putting on false testimony to help the drug dealer’s case.

Assistant Attorney General Lanny Breuer said the Justice Department pursued the unusual case because Daum crossed the line. “You do not get to manufacture evidence,” Breuer said. “You do not get to suborn perjury. You do not get to have people purposefully lie and mislead.

No, you don’t get to step on Lanny’s turf. The government is a jealous mistress.  And your client doesn’t really love you, no matter how strong his protestations to the contrary.

At his own trial this year, Daum argued that the plot was cooked up by White himself, because White was facing a mandatory 20-year prison sentence and the only way to reduce it was to cooperate with the Justice Department.

But a judge didn’t buy that argument, and convicted Daum.

Daum appears to have mounted a defense based upon his being the dupe of his client, where he was apparently set up and had no involvement in the planning or execution of the scheme.  Only a very sophisticated client could pull it off.  Only a very dopey lawyer could get caught in its clutches. 

In her opinion, U.S. District Judge Gladys Kessler said White “lied often and well” and called his girlfriend, Candice, “a total disaster” as a witness. But the judge ruled that despite their serious credibility problems, there was “simply no way” White could have orchestrated the whole plot from inside a jail cell.

Not sufficiently brutal that he lost at trial, then comes the truly humiliating part:

The Justice Department never offered a motive or reason that Daum and his private investigators might have crossed the line. The judge said Daum was getting only $6,000 to defend White and $6,000 more if the case needed to be appealed.

That is the value Daum placed on his career, his life. To put it into Churchillian context, if you’re going to be a prostitute, at least be a high priced one.  But as with all prosecutions and convictions involving criminal defense lawyers, there has to be a moral to this story.  This was offered by Bernie Grimm, who represented an investigator, Daum’s co-defendant.

“It’s very dangerous when … you’re representing somebody and you actually think the government’s involved in listening to those conversations or the government’s going to turn your client one day against you,” said Grimm, who defended one of the private investigators in the case. “So what that engenders is a lot of distrust between the lawyer and the client right off the bat.”

As much as I hate to be contrary, I beg to differ. While I would be beyond outraged to learn that the government had intercepted my confidential communications with a client, there would be nothing whatsoever dangerous to me in their doing so. I’m a lawyer. My communications reflect that. Never do I say anything that could be construed at being party to a crime, whether subornation of perjury, manufacturing of evidence or anything else. It’s not difficult at all to remain professional, and no distrust would arise because there would never be fear of being caught saying something wrong.

I tend to agree more with NACDL president Steve Benjamin:

“Of course, you never see or hear of prosecutors being prosecuted if there’s an instance where they have knowingly used perjured testimony,” Benjamin said. “And that’s one thing that is troubling to the defense bar, is what sometimes appears as a double standard.”

But Benjamin said he agreed with the Justice Department on one key point.

“It would make no sense whatsoever to present false testimony,” he said. “If you do that you’re a fool; if you do that, you’re relying on a cheap trick to try to subvert the truth.”

Still, that there is a double standard for prosecutors doesn’t excuse criminal conduct by defense lawyers.  It’s wrong, and it sucks, but the solution is that no one should be permitted to suborn perjury or manufacture evidence, not that should be okay for everyone.  As for using a “cheap trick to subvert the truth,” as long as it’s not illegal or unethical, that’s a different matter, but not one to be addressed in this post.

The practice of criminal defense is replete with temptation.  We are often offered choices that lead to the road to perdition, and sometimes a choice that is lawful in itself will take us to a dark place where we don’t want to be and can’t find our way back.  Don’t go there. Think of the consequences, the ramifications, of every choice. 

To believe that you can play the game dirty is to beg for disaster, and the government will be only too happy to take you down.  But the best reason to be honorable, to maintain your integrity despite the opportunity to do otherwise, is that you will not only do your best to fulfill your obligation to your client, but you can sleep at night.

It’s a tough job being a criminal defense lawyer. The double standard is real, the opportunity is available and the threat of being in the government’s crosshairs is omnipresent.  Choose wisely. 

It was one thing for Marvin Schechter, chair of the Criminal Justice Section of the New York State Bar Association, to raise the “outrageous” claim that prosecutors were being taught to hide Brady material.  This provokes a flurry of letters to the editor at the New York Law Journal from local district attorneys about how deeply they loved the Constitution and how they would never, ever, do anything wrong. Never.

But if Marvin’s column didn’t make their heads explode before, they’re exploding now.  First in line is Nassau County District Attorney Kathleen Rice, who not only played the caboose in this soap opera by offering  her letter to the editor long after everyone else had already spewed, but offering this unfortunate argument:

In a recent opinion piece authored by New York State Bar Criminal Justice Section Chair Marvin Schechter, the author recklessly opined that hiding Brady material is a “learned and taught” practice by district attorneys. This outrageous statement does not comport with the facts, nor do his comments honestly and accurately describe the professionalism and integrity of New York prosecutors.

The evidence Schechter uses to support his sweeping indictment of an entire profession is a single case involving one prosecutor. To reach his offensive and inaccurate conclusion, Schechter not only chose to rely on an insufficient body of evidence, but also to ignore ample evidence that district attorneys in New York take nothing more seriously than their responsibility to promote and protect the integrity of our criminal justice system.

One case? Just one? The hope of a short public memory might have salvaged this point, but for some very bad timing, as the  New York Times (which Rice may not get since she exists in Newsday territory) published yet another outrageous story of deliberate, flagrant Brady concealment in the case of Petros Bedi

During Mr. Bedi’s trial, a defense lawyer blasted away at the credibility of this witness and tried to prove he had incentive to lie. Didn’t the Queens district attorney foot the hotel bill to put up you and your girlfriend for eight months? Weren’t you paid handsomely for your testimony?

No, the witness insisted. I paid my own bill. Nobody paid me anything.

This was not true, and the prosecutors who sat in that courtroom and vouched for the honesty and truthfulness of this witness knew it.

Newly disclosed witness protection records show that the district attorney’s office in fact paid the witness, Seraphim Koumpouras, $16,640 for hotel bills. Prosecutors also gave him about $3,000 in cash; he received the last payment six days before he testified.

Maybe two cases, Kath?  Bedi’s lawyer, Joel Rudin, had no qualms about wailing on the Queens District Attorney’s office for this outrageous abuse, which responded that “it intends to contest the case vigorously.” Because, well, maybe the prosecutor forgot he handed the witness $100 on his way out the door? It can happen, right?

But Rudin didn’t shy away from the fight.  Instead, he offered the inside view of how, in the midst of this Brady war, where  Brown too sent his own “harrumph” letter proclaiming his office’s “remaining at all times committed to doing justice.”  Except, maybe, this time:

In the Petros Bedi case, I brought to the attention of the leaders of the Queens District Attorney’s Office what appears to be an open-and-shut case of intentional Brady violations. Before filing our motion to vacate the conviction, I provided the office with a draft, and was invited to a meeting at their office. Ironically, in light of the office’s present statement, it was agreed that the substance of our conversation would be kept confidential. In the face of irrefutable, documentary evidence that the prosecutor in Bedi’s case had withheld 16 written statements, signed by their key cooperating witness, acknowledging his personal receipt of nearly $3,000 in cash payments that his testimony had falsely denied, they declined to consider consenting to vacate the conviction so that a new trial could be held.

And so the Queens DA’s office was outraged by one of its own flagrantly violating Brady?  Well, not quite:

Instead, they suggested I bring in two new defense witnesses so that they could interview them and decide whether they were convinced of Bedi’s innocence. I declined, observing that if they were not willing to vacate the conviction based upon the demonstrated Rosario and Brady violations, as well as the evidence that their office had knowingly relied upon false testimony, they certainly would never do so based upon the statements of two defense witnesses.

Because the undeniable 16 payments that were concealed wasn’t a strong enough showing, which brings us back to Marvin’s point.

The public should know that, at the same time the leaders of the Queens D.A.’s office deny the allegation that they “teach” Brady violations, they defend the conduct of assistant district attorneys in presenting and failing to correct false testimony and withholding Brady material that would reveal the truth.

This is “teaching” by example. Under federal civil rights principles, it is “ratification,” and establishes unlawful policy. How many Brady violations inspired by such “teaching” go undetected?

The usual route to beating the DEA in a case is arguing that the evidence is insufficient.  But for Armando Angulo, the win comes from the opposite.  The government has dismissed charges against the Panama native because there is too much evidence, more than they can manage to keep.

From the AP :

Armando Angulo was indicted in 2007 in a multimillion dollar scheme that involved selling prescription drugs to patients who were never examined or even interviewed by a physician. A federal judge in Iowa dismissed the charge last week at the request of prosecutors, who want to throw out the many records collected over their nine-year investigation to free up space.

The Miami doctor fled to his native Panama after coming under investigation in 2004, and Panamanian authorities say they do not extradite their own citizens. Given the unlikelihood of capturing Angulo and the inconvenience of maintaining so much evidence, prosecutors gave up the long pursuit.

“Continued storage of these materials is difficult and expensive,” wrote Stephanie Rose, the U.S. attorney for northern Iowa. She called the task “an economic and practical hardship” for the Drug Enforcement Administration.

The evidence took up 5 percent of the DEA’s worldwide electronic storage. Agents had also kept several hundred boxes of paper containing 440,000 documents, plus dozens of computers, servers and other bulky items.

“Continued storage of these materials is difficult and expensive,” wrote Stephanie Rose, the U.S. attorney for northern Iowa. She called the task “an economic and practical hardship” for the Drug Enforcement Administration.

There is little question now that Eric Wilson, a sailor convicted as one of the Norfolk Four in the rape (and murder, though wilson was acquitted of the latter) of the wife of another sailor, should never have been convicted. DNA and another person’s confession made the point.  But he served his sentence, and was then conditionally pardoned by Virginia Governor Tim Kaine. who found sufficient doubt of guilt, though not absolute proof of innocence.

The upshot was Wilson was done with his sentence, but remained a convicted rapist.  And convicted rapists, of course, are sex offenders who must register.  Being innocent and all, this didn’t sit well with Wilson, and so he sought to have his conviction overturned by habeas corpus. The problem, obviously, was the establishment of jurisdiction for the habe, since his sentence was over.

The solution was his sex offender registration. Or at least it seemed to be, until the Fourth Circuit in a divided opinion smacked him down.

The district court dismissed Wilson’s petition for lack of jurisdiction, holding that because Wilson had fully served the sentence for his rape conviction, he was no longer “in custody,” as required by § 2254(a).

We affirm.  While it appears that Wilson has mounted a serious constitutional challenge to his conviction, in which he vigorously asserts his innocence, we conclude that the sex offender registration requirements of Virginia and Texas are collateral consequences of his conviction that are independently imposed on him because of his status as a convicted sex offender and not as part of his sentence.  We also note that the sex offender registration requirements and related consequences do not impose sufficiently substantial restraints on Wilson’s liberty so as to justify a finding that he is in the custody of state officials.

The notion of custody for habeas corpus purposes is defined as a substantial restraint on a person’s liberty, which would seem a fair definition.  

To satisfy § 2254’s jurisdictional requirement that he be “in custody” at the time he filed his petition, see 28 U.S.C. § 2254(a) (granting jurisdiction to the district courts to entertain “an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court” (emphasis added)), Wilson alleged that the sex offender registration requirements of Virginia and Texas law impose sufficiently substantial restraints on his liberty so as to amount to custody.

Parole? Custody.  Supervised release? Custody. After all, they can tell you what to do, where to go and make you pee in a cup. They can require you to go to rehab or job training, and inspect your home at will.  That’s a pretty substantial restraint on liberty, right?

But not being required to comply with the requirements of sex offender registration laws.  Sure, they can require you to notify the police when you move into a jurisdiction, and can forbid you from living in most parts of town. They can require you to stay away from places where other person’s walk freely, and go nowhere near children. They can limit your use of the internet or force you to include on your Facebook status that you’re a sex offender.

And this is not a restraint on liberty.

The reason is summed up in two words: Collateral consequences.  The legal fiction that laws that may have been passed long after sentence was imposed and completed, laws that dictate the performance of some of the most fundamental aspects of one’s life, laws that control how one exists in society for potentially the rest of one’s life, are not part of the punishment for the conviction of a crime. Instead, by characterizing them as “civil” rather than criminal, they are magically not punishment but collateral consequences.

In dissent, Judge James Wynn is clearly disturbed by the fact that the decision slams shut the court doors to an innocent man.  After running through the caselaw, without reliance on the facile distinction provided by the legal fiction of collateral consequences, he concludes:

I question the majority opinion’s decision to follow the Ninth Circuit’s decade-old summary decision in Henry. Uncontestably, the in-person reporting requirements applicable to Wilson in Virginia and Texas “significantly restrain [Wilson’s] liberty to do those things which in this country free [people] are entitled to do,” and, consequently, the majority opinion should squarely address the question of whether, in the Fourth Circuit, “[s]uch restraints are enough to invoke the help of the Great Writ.”

Judge Wynn argues to break away from the fiction, at least within the Fourth Circuit where the court is under no constraint by holding from other circuits.  Judge Wynn looks to what the sex registration laws demand rather than the denomination of civil, and concludes the obvious, that they are a huge restraint on the liberty “to do things which in this country free [people] are entitled to do.”  And once stripped of the fiction, that’s the hard question.

Even so, Judge Wynn’s concern isn’t about the legal fiction of sex offender registration laws, but about how they foreclose redress by Wilson due to this substantial claim of innocence:

Our hands are not tied here; no precedent forecloses the relief sought in this case. Rather than blindly adhering to formalist procedural concerns, we should instead be guided by the equitable principles that traditionally govern the law of habeas corpus, Munaf v. Geren, 553 U.S. 674, 676 (2008), and by the Supreme Court’s mandate to construe the “custody” requirement liberally, particularly in cases involving deprivations on liberty, credible claims of actual innocence, and an absence of forum for redress.

The problem left on the table is that it’s not just about Eric Wilson, or about defendants with substantial proof of actual innocence.  Rather, it’s about a concept that was fundamentally flawed from the outset, where in society’s fit of fear and outrage, they created a horrendous an ex post facto system of punishment, called it a civil regulation, and the courts shut their eyes to all reason and stamped it approved.

Whether they understood its ramifications at the time, or its expansion to such heinous crimes as public urination, or the piling on of additional restrictions that would ultimately leave registered sex offenders with neither a place to live or a chance to be law-abiding productive citizens, is unclear.  Yet that’s been the end result of this fiasco.

It’s cases like Eric Wilson’s, because of the sympathy generated by an innocent man wrongfully convicted, that have the potential to change minds, to bring the slightest chance of reason to a fiction gone insane.  And if the court can’t find it worth its while to come clean on behalf of a guy like Wilson, then there is little hope the insanity will ever come to an end.

H/T Doug Berman

It’s not that the idea was a bad one at its inception. After all, learning doesn’t end in law school, and the problem of lawyers failing to take the time or make the effort to stay atop changes in the law was very real.  It’s not that we didn’t have the books, but who had time to read them?

Yet CLE hasn’t panned out as well as expected.  For one thing, teaching is hard work. It requires preparation, research, more preparation and the ability to teach.  While most lawyers far prefer to be the teacher than the student, few are willing to put in the effort.  It’s so much easier to step up front and tell war stories or speechify your off-the-cuff thoughts on a subject about which you know nothing.  Plus, you get double credit to teach, no matter how awful you do.

In order to provide CLEs, you have to be a CLE provider, and bar associations signed up lickety-split. But bar associations are captives of their “officials,” those lawyers who lost the election for secretary of their sophomore class in high school and desperately need to make up for it by seeking positions that suck time and money from their practice while returning all the glory a plaque can bring.  And since they now hold the power, they’re the folks teaching CLEs. Because signing up for bar positions makes you a lawyer with something meaningful to share.

In the beginning, lawyers were a bit choosy as to which CLEs they attended. They hoped to get something out of it, and expected to actually learn something of value for their sawbuck (or two).  After a while, the content deteriorated. You can’t keep giving the same CLE, so fresh meat was needed. Not only to attract new paying attendees, but to pass muster with the bar honchos who had to approve CLE content.

The alternative are the paid providers, those CLE outfits that charge for the pleasure of satisfying the bar’s demand that you stay on top of your game.  They certainly had better reason to develop interesting and strong CLEs, as this was the business model and source of income. Throw lousy CLEs and you’re out of business.  Throw stupid CLEs and the content isn’t approved. 

Well, that was the idea, anyway.

Now this :

Topics include:

• Introduction to the iPad


• Tour of the iPad


• Getting Documents onto the iPad


• A “Day in the Life” of an iPad-Savvy Attorney


• The 10 “Must-Have” iPad Apps for Legal Professionals


• Recommended Settings for the iPad


• Printing from the iPad

The afternoon is where they get all advanced:

Topics include:

• Legal Research on the iPad


• Getting the Most Out of E-mail on the iPad


• Delivering a Presentation from the iPad


• Using the iPad in the Courtroom


• Taking Notes on the iPad


• 60 iPad Apps, Tips & Tricks in 60 Minutes

In other news, food.com posted the recipe for ice cubes, though  the reviews suggest that the recipe could use some improvement.   No slackers they, the PBI not only produces cutting edge CLEs, but has out-of-state faculty for it’s iPad show, making it well worth the 6 CLE credits bestowed upon lawyers for full day attendance:

Featured Speakers:

Brett Burney, Esquire, Burney Consultants, LLC, Cleveland, OH
Paul J. Unger, Esquire, Affinity Consulting Group, LLC, Columbus, OH

And if you were wondering, yes, the PBI offers discounts for judges to attend this CLE. 

There comes a time when we need to step back, take a look at how a good, if somewhat aspirational, idea has panned out, and admit it’s a failure.  Continuing legal education is an expense of time and money, and can be satisfied by playing with an iPad. It has failed.

This isn’t a commentary on shiny toys so beloved by tech early adopters. They already know how to use an iPad, anyway.  If it makes your life as a lawyer more convenient, that’s fabulous.  But this is so far afield from what CLE was meant to accomplish as to render it a farce, and yet lawyers are constrained by the rules to waste time and money to get their credits on such weighty topics.

The time has come to recognize that CLE has gone off the rails and either put it to a merciful death or go back to the drawing board.  There’s probably an app for that.

H/T  Max Kennerly
 

Despite the dictates of sound judgment, the ABA Journal has once again sent out a  call for nominations for its annual beauty pageant.  If you take it as good clean fun, and nothing more, it’s relatively harmless.  Sadly, there is no shortage of blawgers with personal issues for whom it matters enormously, revealing their childhood traumas of being the last picked in gym.

In the past, I’ve been deeply critical of the beauty pageant for what it does to people, debasing themselves for votes and creating hard feelings for those who feel they’ve been wronged by being left out.  Good clean fun is fine as long as no one suffers needlessly. 

The problem isn’t one of competition, which is generally healthy, but that the choices made in the boiler room of the ABA Journal are generally arbitrary, often bizarre, and largely a product of what interests a few non-lawyers.  Some of the choices over the years have been, well, inexplicable, as have been blawgs ignored.

The number of viable law blogs at any given moment is hard to fix, but appears to number in the thousands if one uses a generous definition of “viable.”  Many are focused on tech for lawyers, and only chime in when a shiny new toy is announced.  Then there are the lawyer marketing blogs, which repeat the ten rules for whatever every month or so.  And many blawgers have fallen into the hole of curation, doing little more than noting posts or articles of interest and cut and pasting some or all of the content, adding no ideas of their own.

There are a fairly large number of blogs that exist for the purpose of marketing and self-promotion, writing about cases or news items in a practice area that they think will be found by potential clients and be sufficiently interesting to get those potential clients to call.  They tend to be simplistic in their content and fairly obvious in their purpose.

Finally, there are many blogs that are best described as peripherally related to law, in that they are primarily political in nature and promote an ideology that occasionally involves law as a transmission vehicle, without regard to accuracy.  These tend to capture the interest of the tin foil hat crowd.

By my personal highly scientific calculation, there aren’t 100 blogs, written by lawyer about law, that are worth reading.  There are a couple of new blogs that have either been created or come onto the radar in the past year, but there are far more than have faded into oblivion as blawgers got bored, burned out or learned that they weren’t going to get rich and famous on the internet.

The number 100 is a nice, round number. For the sake of a beauty pageant, it’s a good number to use. But I doubt they can come up with enough decent blawgs to make 50, no less 100.

One answer is to bring the pageant to its natural conclusion, that the blawgosphere no longer warrants a pageant.  Another is to cut the number down to something more realistic.  Somehow, I doubt either will occur.  After all, the Blawg 100 sounds much cooler than the Blawg 37.  But it also renders what little point there might possibly be in throwing a beauty pageant moot.  If there aren’t 100 blawgs worth reading, then there is no point throwing a beauty pageant for 100. 

Back in 2007, Dave Hoffman questioned whether the blogosphere was stagnant.  I responded that it wasn’t, but that the first wave of blawgers, what I called the Old Guard, kept their circle tight and refused to look beyond it.  My criticism was unappreciated at the time, but I was right.

In 2009, I wrote of Blawgospheric Darwinism, when lawyers began to believe the nonsensical hype that blawgs were the new way to market and everybody and their brother started a blawg.  I argued that they would collapse under their own weight, as the blawgosphere couldn’t sustain thousands of blawgs of little consequence.  There just wasn’t enough readers, and most weren’t worth reading. They would pop up out of nowhere and, just as quickly, disappear, leaving their dead carcasses floating around the blawgosphere.  And I was right.

By 2011, I wrote of the Third Wave of Blawging, which I described as isolation. There may well be wonderful new blawgs around, but no one knows about them because they don’t link to anyone else, they don’t engage with other blawgs and they add nothing to the synergy of the blawgosphere.  It’s not that they don’t want to be noticed, but they think it’s a one way street. 

I nominated the  Philly Law Blog for the beauty pageant, my way of supporting Jordan and Leo for their efforts.  It’s a great blawg, and I do what I can to promote new blawgs.  I tried to nominate  Appellate Squawk as well, but the website rejected me, perhaps because it’s only one per customer, and I had already made a nomination.  I didn’t nominate these blawgs because I believe the ABA Blawg 100 matters, but because there aren’t many ways to show appreciation for new blawgs, aside from putting them on my blawg roll and linking to them in a post.

But I can’t see how the ABA Journal machers are going to find 100 worthwhile blawgs.  There will be no difficulty filling in the blank spaces, but not with quality stuff.  There will be no shortage of nominations by blawgers’ secretaries, third-cousins, marketers or social media gurus, but it won’t make a mutt of a blawg look beautiful.

Having something of a vested interest in the continued vitality of the blawgosphere, I want to be wrong this time.  Nothing would please me more than to have hundreds of great blawgs vying for the attention of the ABA Journal folks, making their job so painfully hard that only the crème de la crème make the cut.  But I don’t see it happening. I don’t think it can be done.  I don’t think they exist.

Prove me wrong.

A debt of gratitude is owed  Jeff Gamso for reading the New York Law Journal when no one else bothers.  Jeff came across a story by Joel Stashenko  announcing a new rule for prosecutor who “discover” they have convicted an innocent person. 

Half jokingly, Jeff notes the old rule: Bury the evidence.  Of course, that’s not quite true. They merely ignore its existence if at all possible and fight any effort at its disclosure, all in the name of finality.  The new rule, however, changes everything:

The rules were added to the Rules of Professional Conduct by the presiding justices of the four Appellate Division departments in July. They stipulate that when a prosecutor knows of “clear and convincing evidence” that a defendant did not commit the crime for which he was convicted, “the prosecutor shall seek a remedy consistent with justice, applicable law, and the circumstances of the case.”

Prosecutors must act within a “reasonable time” to notify the court and the defense that they have come into the possession of significant new evidence. Those materials are to be turned over to the defense unless doing so would interfere with an ongoing investigation or endanger the safety of a witness or another person involved in the case, according to the rules.

Not enough wiggle room for you in Stashenko’s write-up?  Try  the actual rule instead:

When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall within a reasonable time:

(1) disclose that evidence to an appropriate court or prosecutor’s office; or

(2) if the conviction was obtained by that prosecutor’s office,

(A) notify the appropriate court and the defendant that the prosecutor’s office possesses such evidence unless a court authorizes delay for good cause shown;

( disclose that evidence to the defendant unless the disclosure would interfere with an ongoing investigation or endanger the safety of a witness or other person, and a court authorizes delay for good cause shown; and

(C) undertake or make reasonable efforts to cause to be undertaken such further inquiry or investigation as may be necessary to provide a reasonable belief that the conviction should or should not be set aside.

(d) When a prosecutor knows of clear and convincing evidence establishing that a defendant was convicted, in a prosecution by the prosecutor’s office, of an offense that the defendant did not commit, the prosecutor shall seek a remedy consistent with justice, applicable law, and the circumstances of the case.

(e) A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (c) and (d), though subsequently determined to have been erroneous, does not constitute a violation of this rule.

Naturally, the District Attorneys Association is lauding themselves for this great step forward.

District Attorney William Fitzpatrick of Onondaga County, who worked on the new rules on behalf of the District Attorneys Association of the State of New York, said the rules are due to the “tremendous attention given to wrongful convictions” over the past several years.

Fitzpatrick’s statement appears unintentionally revealing, in that this rule change is a public relations effort “due to the ‘tremendous attention given to wrongful convictions’ over the past several years,” so prosecutors can point to the rule and claim procedures are in place.  And indeed they are, though the rule is so filled with holes, caveats, provisos and wiggle words as to render them utterly worthless.  But then, public relations is all about perception, not reality.

As revealed by the text of the rule, as opposed to Stashenko’s somewhat generous description, they neither assure that an innocent person be released, nor that a prosecutor who sits on evidence of innocence be sanctioned.  Only the most pathologically stupid district attorney would find himself in trouble for concealing proof of innocence, given the myriad opportunities to rationalize their deep-sixing the evidence. 

For those non-New York lawyers, this rule was adopted by the four Appellate Divisions of the Supreme Court of the State of New York, the body responsible for making and upholding the New York Rules of Professional Conduct, and for dealing with violations of those rules.  In other words, they run attorney (including prosecutorial) discipline in New York.  And this is what was given their blessing.

What is fundamentally astounding is that this rule approves of the continued incarceration of an innocent person in furtherance of law enforcement.  Even by pretending that the meaningless rhetoric, “consistent with justice, applicable law, and the circumstances of the case,” isn’t meaningless rhetoric, this is about a person who is not guilty of committing a crime.  By what authority does a court approve a rule that keeps an innocent person imprisoned both for the the convenience of, and as the discretion of, the prosecution?

As the  recent battles over whether prosecutors have to adopt all of Brady or only those pieces they prefer continues, this post-conviction analog is a smack in the face.  Note that this only applies to evidence discovered after a conviction, since prosecutors would never withhold evidence favorable to the defendant beforehand, which of course is what seems to always be the crux of the problem of wrongful convictions.

But now that a rule is in place to “fix” the problem, both the District Attorneys and the justices of the Appellate Divisions can stand tall and proud, knowing that they have faced up to their awesome responsibilities and addressed them.  And so they can wipe their hands as they walk away from the grave.

Adam Mueller, co-founder of CopBlock.org, was found  guilty of three counts of wiretapping in New Hampshire.  Based on the law, there is little question that he was, in fact, guilty, and the jury took a mere 30 minutest to return the verdict.

Still, it’s wrong.  

Carlos Miller provides a succinct summary of how and why Mueller, who writes under the name Ademo Freeman,

The case stems from an incident at a New Hampshire high school where a student video recorded a police officer beating up another student.

School officials ordered the student to delete the footage and he acted as if he did, but kept the clip showing the beating and gave it Cop Block, who turned it into a national story.

Mueller than recorded a video of himself calling the Manchester Police Department and the West High School in the same city, seeking comment about the incident from officials.

He didn’t inform them that he was recording, but he did identify himself from Cop Block and it was clear that he was seeking official comment because he didn’t beat around the bush with informalities.

The cop hung up the phone on him in a matter of seconds and it is believed police record all incoming calls into the station.

And the school official answered a few questions in a manner that it was clear she was speaking on the record before hanging up the phone.

New Hampshire is a two-party consent state, except for police. Carlos’ rationale notwithstanding, Ademo did not inform the other person on the phone that he was recording. Whether it was clear that the call sought “official” comment or not, it’s against the law. And so he was convicted.

Yet, the feeling of constitutional dissatisfaction with such a simplistic analysis is overwhelming.  Ademo, it should be noted, represented himself.  Had he prevailed with his argument, it would have been glorious, a David against Goliath fight where every libertarian’s dream was fulfilled.  But he didn’t win.

The argument that needs making is whether the New Hampshire law passes muster under the First Amendment freedom of the press when the recording is made of a public official relating to the performance of his duty. 

Mueller, who is representing himself, plans to use the Glik vs Boston landmark decision as one of his arguments, even though that stemmed from a case in which a man was openly video recording cops in a public park.

But if you read through the decision, you can see where it can apply in his case.

Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966). 

Moreover, as the Court has noted, “[f]reedom of expression has particular significance with respect to government because ‘[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.'” First Nat’l Bank, 435 U.S. at 777 n.11 (alteration in original) (quoting Thomas Emerson, Toward a General Theory of the First Amendment (1966)). This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties.

It was obvious from Mueller’s questions that he was seeking information to disseminate to the public.

Collecting honest and accurate information from public officials in the performance of their duty, where concerns of impropriety are the subject of serious investigation, is a core virtue of a free press. To require the investigator to alert his target that he’s recording the communication is to neuter the efficacy of the First Amendment.  Would undercover agents alert their targets that they’re trying to make a drug bust?

Persuading a court that a state law is unconstitutional as applied is not an easy task. This argument has many moving parts, even though it may seem obvious to those inclined to understand why a prohibition on recording government employees in the performance of their duty, regardless of anything else. Much as it may draw the ire of those who believe that any citizen should have the ability to prevail in court, it’s not a game for amateurs.  It’s an extremely difficult thing to accomplish.

Yet, this is a case where the law is unconstitutional as applied.  The First Amendment is fundamentally offended by a law that impairs the ability of the press to record public officials in the performance of their duty, and the rationale behind such a law, the protection of privacy, does not bear up to strict scrutiny.  The law falls woefully short under the circumstances of this case.

Ademo was sentenced to 12 months in jail, nine months suspended, which means he will spend two months (with good time) in jail and five years on probation, according to Cop Block co-founder Pete Eyre.  Less than a lifetime but incarceration nonetheless.

Notably, Ademo was allowed to argue jury nullification, to argue to the jury to reject the law as written and acquit him nonetheless.  Many want to believe that the conscience of good people is all that’s needed to save us from bad law, as if nullification is the magic bullet that will save us from an overreaching government.

Ademo’s closing took only a few minutes but it was strong and straight-forward. He acknowledged that he hadn’t informed those that he called that he was recording but he hammered-home the fact that they were public officials, that they knew he was affiliated with CopBlock.org and was seeking comment, and advocated for jury nullification.

It didn’t save Ademo. 

For quite a while, Radley Balko has been drawing a line between the militarization of police and the scope and depth of damage done in the name of order.  He’s done so in words, and done so in images.  As the cops dress up like toy soldiers, and driving around in vehicles meant to withstand the enemy’s assault, it conjures up the notion of an occupied nation. But we know otherwise. This is America, home of the free.

Of course, there is no shortage of people on the internet who see a conspiracy under every rock of the one percent, the power elite, the oligarchy, talking softly about how much they love us while arming their minions to keep us in our place.  But these are the crazies, the people wearing digital tin foil hats who fear imaginary conspiracies and cry for revolution at every opportunity.  No one pays them any heed.

But what if they weren’t as crazy as we think?

Via Jonathan Turley, it appears that somebody is actually making plans.  Just in case, but plans nonetheless.

Most recently, the Marines moved to create a battalion to allow the military to “be capable of helping control civil disturbances, handling detainees, carrying out forensic work, and using biometrics to identify suspects.” Now the Small Wars Journal, a respected publication closely followed in the U.S. military, has published an article entitled “Full Spectrum Operations in the Homeland: A ‘Vision’ of the Future” by retired Army Col. Kevin Benson of the Army’s University of Foreign Military and Cultural Studies at Fort Leavenworth, Kan., and Jennifer Weber, a Civil War expert at the University of Kansas. It lays out not just the military but the legal basis for military operations to crush domestic insurrections in the United States.

It likely surprises no one that the military has contingent plans for plenty of things that will never happen.  After all, better safe than sorry, and if called upon by the Commander in Chief to move out, the guys with stars on their collars would look awfully silly if they were caught empty handed.

But the kicker, as Turley notes, is that it appears that the deeper, more nefarious element of the plan, it’s legal rationale, has already been worked out.  Never again will John Yoo have to scramble to justify torture.

The authors write “once it is put into play, Americans will expect the military to execute without pause and as professionally as if it were acting overseas.” The article takes on a chilling tone, telling its many military personnel readers that “the Army cannot disappoint the American people, especially in such a moment.”

The authors spend comparatively little time considering the constitutional and legal barriers to the operations. They details how “Federal forces continue to tighten the noose as troops seize and secure power and water stations, radio and TV stations, and hospitals.” Yet, legal limitations are treated as largely irrelevant.

Not quite a thoughtful justification, but the fact that they’ve considered, and dismissed, the question of lawfulness of a military seizure of the United States is chilling indeed.  Imagine, if you will, the post-seizure trial of those soldiers who gunned down one hundred American citizens in Darlington explaining, but we were just following orders, and the government told us it was perfectly lawful, and our duty, to seize control and quell the insurrection.

The very existence of such a plan, no less its disclosure, will feed the wildest imaginings of conspiracy theorists.  It will also turn those on the edge into believers.  It will sell guns and large ammo magazines.  It will compel people to restock their shelters with food and water for the seige.

And this plan is rationalized as not disappointing the American people, who just happen to be the nice folks the military is rounding up at the point of a gun for not being sufficiently compliant.  And this is a good enough legal justification for the plan?

America is exceptional in the sense that we have a bloodless coup every four years or so, in that the most powerful man in the world hands over the keys to the White House to his mortal enemy because a sufficiently large group of electors tell him to do so.  Thus far, no one has refused.  Many of us have been less than thrilled with the new guy. Or the old guy. Or the choices. But we sleep at night because we trust that the system, for all its flaws, works better than the alternative.

Knowing that the plans are in place just in case the American public wakes up one day and decides that they aren’t as thrilled with the way things are going as those in power want us to be changes the equation.  If Congress doesn’t know about this, they need to. If Congress does, then they need to come clean and explain to the American public why they think we are the enemy. Either way, the mere existence of a plan, and a legal justification, raises the stakes.  Maybe we shouldn’t sleep nearly as well at night as we do.