There is hard science. There is soft science.  And then there are really heart-warming stories that seem to have some sort of connection to science, in a non-analytical sort of way.  Which of these do you suppose the Texas Court of Criminal Appeals prefers?

Via Danielle Citron* at  Concurring Opinions,

On August 7, Texas plans to execute Marvin Wilson, a man who received a 61 on the standard Wechsler full-scale I.Q. test, a score placing him below the first percentile of human intelligence and far below the I.Q. threshold for mental retardation (MR). His adaptive functioning registers at an even lower percentile. In 1998, a Beaumont jury convicted and capitally sentenced Mr. Wilson for the 1992 murder of Jerry Williams, which allegedly occurred after a fight at a gas station.

Mr. Wilson was diagnosed with MR by Dr. Donald Trahan, a court-appointed, board certified neuropsychologist with 22 years of clinical experience as an MR specialist. (See this addendum to his report as well).  

Utilizing the AAMR/AAIDD’s clinical criteria for mental retardation, Dr. Trahan met with Mr. Wilson for eight hours, reviewed his school and medical records, and administered or evaluated a battery of leading neuropsychological testing. He examined Mr. Wilson’s memory, language development, adaptive skills, conceptual reasoning, practical skills and other scientifically-recognized indicia of mental functioning. Taking into account all of that data, Dr. Trahan concluded that Mr. Wilson clearly had mild MR.

At Mr. Wilson’s MR hearing, the state presented no evidence whatsoever; it has never offered any expert opinion, in any form, challenging Dr. Trahan’s clinical diagnosis. The state court actually reasoned that Mr. Wilson did not have MR because he “functioned sufficiently in his younger years to hold jobs, get a drivers license, marry and have a child.” 

Texas, however, has translated the Supreme Court’s categorical ban on executing offenders with MR in a way that does not, in practice, exempt most offenders with that intellectual disability. Instead, Texas has improvised a set of “Briseño factors” (named after the Texas decision that announced them) to determine which defendants with MR actually receive the Atkins exemption.

The Briseño factors are not used by any scientists or clinicians in medical practice, and they are not recognized by the AAMR/AAIDD. The Texas Court of Criminal appeals—the state supreme court for the purposes of criminal adjudication—has actually indicated that it formulated the Briseño factors with Steinbeck’s Lennie in mind.  Although literature can tell us much about society and  law, by my lights, it should not replace or disregard well-accepted scientific measures of evaluation.  That no doubt seems obvious to our readers, but no so to the Texas Court of Criminal appeals.

In other words, the CCA decided to base their test for mental retardation on a character in a novel instead of science. 

In the comments to Citron’s post, it was suggested that this was merely “line drawing” by the court, so that only the most severely retarded were saved from death, and that the ordinarily retarded who did not hold elected positions would still be subject to frying.  Oh no. This argument does not fly.

While the question of where along the spectrum of mental retardation the cut off should be may be subject to some debate, the Briseño factors have no place in the discussion.  These aren’t founded in anything, other than a darn fine book.  But it’s fiction.  It’s not the measure of human intelligence, or a scientific basis upon which a bunch of judges can rule.  Having read the book (or at least most of it), the judges of the Court of Criminal Appeals are not suddenly qualified to craft factors for a scientific or medical diagnosis.

One of the dirty little secrets of the law is that judges get to make decisions about things they don’t understand.  Take technology for instance.  Medical and scientific stuff as well.  It’s not that they don’t think they understand.  They attribute knowledge of all sorts of stuff to themselves, often after listening to cherry-picked experts who present their views as if no one could possibly differ.  Except all the other experts in the same field, who aren’t put on the stand.  Yet, the judge who hears it now believes she is imbued with such depth of knowledge as to rule on the validity or consequence of a scientific fact, and that ruling will be perpetuated by scientifically-challenged judges in perpetuity.

But at least those judges, misguided as they may be, have attempted to rely on something resembling a scientific foundation.  In Texas, they prefer something even more scarce than scientific knowledge: a Steinbeck novel.  The bottom line is that Lennie is safe from execution.  Just Lennie.

In a New York Times op-ed, Andrew Hacker has brought joy to every slackoisie who has to take off his shoes and pull down his pants to count to 21.  Finally, someone has bought into the argument made for generations that it’s something no one will ever need. Hacker’s highly controversial view is it’s time to rid our schools of demon algebra.

A TYPICAL American school day finds some six million high school students and two million college freshmen struggling with algebra. In both high school and college, all too many students are expected to fail. Why do we subject American students to this ordeal? I’ve found myself moving toward the strong view that we shouldn’t.

This debate matters. Making mathematics mandatory prevents us from discovering and developing young talent. In the interest of maintaining rigor, we’re actually depleting our pool of brainpower. I say this as a writer and social scientist whose work relies heavily on the use of numbers. My aim is not to spare students from a difficult subject, but to call attention to the real problems we are causing by misdirecting precious resources.

When the going gets tough, the tough go shopping for something not so tough.  It’s not my place to defend the honor of algebra, or any mathematical discipline, and others have already done so.  Frankly, I have no particular feelings about algebra at all.

What is disturbing, however, is that Hacker’s argument is grounded in fact that learning algebra is hard.  Things that are hard make people frustrated and unhappy.  When they get frustrated and unhappy, they don’t want to do it. And so, per Hacker, they drop out of school and go on to lives as rock musicians and cable installers. 

Breaking news: Life is hard. The solution to dealing with hardship isn’t to tell Buffy and Jody that whenever something is hard, they can pretend it doesn’t exist and go on to subject they enjoy.  The solution is to foster a culture where young people toughen up, work harder, overcome their frustration and unhappiness and get it done.  Hacker doesn’t like that solution.

Remember “whole language”?  It was a similar effort by educators to dumb down difficulties faced by students.  Why, the theory went, should students suffer the rules of spelling, punctuation and grammar and stifle their innate brilliance?  Why not look beyond archaic rules and allow students to air their genius free of constraints?  Why indeed.

The reason soon became apparent. First, they produced incomprehensible words, because they couldn’t spell.  The problem with incomprehensible words is that the creator might have some clue what the word was, but no one else did. Then they couldn’t sling together a sentence, so that if there was a thought buried within, no one would ever know. And finally, the truth came out: Little junior was not the reincarnation of ee cummings.

Contrary to the flighty supposition, not only did the elimination of rules free students from the constraints that enabled communication, but from anything remotely resembling thought.  The rigor of applying rules to letters came hand in hand with the rigor of thinking.  Whole language certainly made things easier, but the price was far greater than its advocates anticipated.  Students not only failed to learn the rules of written communication, but lost the ability to think along with it.  On the bright side, they were too dumb to realize how dumb they were, and were pretty darned happy about how easy it all was.

What Hacker offers is a variation on a theme.  If his argument was limited to the view that algebra was simply no longer a necessary component to live a generally educated life and to participate as a member of society, maybe he would be on to something.  After all, the care and feeding of horses is no longer a general necessity, and no one is worse off for the inability to groom or shoe a horse.  A few, whose work requires such specialized knowledge, still know how to do it, and that’s good enough for society.

But his argument goes wrong:

Algebra is an onerous stumbling block for all kinds of students: disadvantaged and affluent, black and white. In New Mexico, 43 percent of white students fell below “proficient,” along with 39 percent in Tennessee. Even well-endowed schools have otherwise talented students who are impeded by algebra, to say nothing of calculus and trigonometry.

California’s two university systems, for instance, consider applications only from students who have taken three years of mathematics and in that way exclude many applicants who might excel in fields like art or history. Community college students face an equally prohibitive mathematics wall. A study of two-year schools found that fewer than a quarter of their entrants passed the algebra classes they were required to take.

“There are students taking these courses three, four, five times,” says Barbara Bonham of Appalachian State University. While some ultimately pass, she adds, “many drop out.”

This is the new way to avoid failure.  Get rid of anything that’s hard, rub Timmy’s tummy and tell him how smart he is. Problem solved!  And then comes the kicker:

It’s true that students in Finland, South Korea and Canada score better on mathematics tests. But it’s their perseverance, not their classroom algebra, that fits them for demanding jobs.

Well, we certainly wouldn’t want to teach American students to persevere.  That sort of thing is for Canadians, and they can keep it, thank you very much.  They may be well educated and capable of greatness, but American children will all be all smiles and have degrees from prestigious colleges that will enable them to rock the world with their ability to weave baskets.  Hah, sad Canadian math freaks!

Hacker then addresses the criticism of his vision of an algebra-less world:

What of the claim that mathematics sharpens our minds and makes us more intellectually adept as individuals and a citizen body? It’s true that mathematics requires mental exertion. But there’s no evidence that being able to prove (x² + y²)² = (x² – y²)² + (2xy)² leads to more credible political opinions or social analysis.

Had he paid any attention at all to American political opinions or social analysis?  We’re a nation of idiots, proving so in every quadrennial exercise.  The exertion required to perform algebra involves a muscle in desperate need to exercise: the brain.  The ability to engage in linear, rational thought is what allows us to solve basic algebraic equations.  It’s pretty good for other stuff too, even if our occupations never require us to perform quadratic equations per se.

The underlying message here is that our nation remains dedicated to the removal of barriers to self-esteem and happiness at the cost of, well, everything else.  Perhaps our drop-out rate is what it should be, and reflects the distribution of talent and intelligence across the spectrum. 

More likely, however, is that it reflects the slackoisie attitude toward hard work. Sorry, kids, but better you learn to persevere, because it’s not going to get any easier later.  The way to win the War on Algebra is to overcome it, not surrender.

At Above the Law, Mark Herrmann (the  famous author and curmudgeon) offers another bit of insight from the corner office they give to in-house counsel that  carries over to the well of the courtroom.  After an introduction that makes utterly no sense to me, Mark reaches his point:

The first “Are you sure?” did not arise in a legal context. A guy got off a subway, emerged from under ground, pulled out a map, and told the woman he was with: “We should walk this way.”

She asked, “Are you sure?”

Now look: The guy had a map in his hand; he had just emerged from under ground; and he was considering the situation. I have a creeping suspicion that he wasn’t sure; he was probably giving his best assessment of the situation.

Given that, I don’t think his companion was actually asking whether he was sure; she knew that he was uncertain. Rather, his companion was setting the guy up for a fall: Fifteen minutes from now, when this couple was lost in a bad part of town, she could blame him for having put them in this situation — because “I told you that this was the wrong way!”

It’s not hard to picture.  At the tail end of the retirement party for DEA Special Agent Jones, who went seven years beyond his 20 and out, a dweeby guy he never met before walks up to him and asks if he can have a word.  They walk to a quiet corner of the room, and the dweeby guy tells Jones that his pension is gone.  Poof, gone. The government needed some cash to make a big buy in a sting operation, and it used the money that was supposed to go to fund his pension.

Unfortunately, the sting went bad, and the target got away with the money. It’s gone.

Jones listens.  When the dweeby guy stops talking, Jones says,

Are you out of your mind? That’s my money. My pension. I earned it. It wasn’t yours to lose. Screw (actually, he uses a harsh expletive, but this is a family-safe blawg, so I’ve toned down Jones’ language) this.

“Your driver was shot in your truck,” said the caller, a business colleague. “Your truck was loaded with marijuana. He was shot eight times while sitting in the cab. Do you know anything about your driver hauling marijuana?”

“What did you say?” Patty recalled asking. “Could you please repeat that?”

Commandeered by one of his drivers, who was secretly working with federal agents, the truck had been hauling marijuana from the border as part of an undercover operation. And without Patty’s knowledge, the Drug Enforcement Administration was paying his driver, Lawrence Chapa, to use the truck to bust traffickers.

At least 17 hours before that early morning phone call, Chapa was shot dead in front of more than a dozen law enforcement officers – all of them taken by surprise by hijackers trying to steal the red Kenworth T600 truck and its load of pot.

For its part, the DEA has not admitted that it was using Chapa as a spy because its official policy is not to comment on whether someone was an informant.

In documents shared with the Houston Chronicle, he is demanding that the DEA pay $133,532 in repairs and lost wages over the bullet-sprayed truck, and $1.3 million more for the damage to himself and his family, who fear retaliation by a drug cartel over the bungled narcotics sting.

“When you start a new business, there are obvious pitfalls you go through, a learning curve,” said Patty, who before buying his two trucks worked in the pharmaceutical industry. “But who would ever be ready to deal with this?

“How am I — a small businessman, father of three, American Joe from Texas — supposed to make a claim against a federal agency that has conveniently shrouded itself behind a red, white and blue cloak of confidentiality and secrecy?”

In the course of stumbling through my dashboard yesterday, I realized that I had published the 5,000th post at Simple Justice.  If was the first post yesterday, A PD and a Private Lawyer Walk Into a Bar, though it doesn’t really matter which post it was.

That’s a lot of posts.  That’s a lot of words.

It’s probably saved me a small fortune in therapy.  Over the years I’ve been writing SJ, the one word that’s been used most to describe me is “prolific.”  It’s not my favorite word, as it implies that the aspect of my writing that predominates is quantity rather than quality.  Every time someone calls me “prolific,” I cringe.

But as I ponder the fact that I’ve published 5,000 posts (and written more, though some never saw the light of day),  I hate to admit it but prolific is an accurate description.  For better or worse, I’ve written a lot.

And my posts aren’t cheap shots, the sort of stuff that “curators” post that throw some bit of news or article someone else has written against the wall to see if readers are interested.  When I started SJ, there were only a couple of people whose blogs were directed toward curation.   Howard Bashman was the king back then, though his lack of growth with the rest of the blawgosphere has left his curation limited and moldy.

Today, there are more curators than anything else.  Some mix it up, like  Radley Balko,  Walter Olson and occasionally Doug Berman, I enjoy the benefits of their efforts, as they find stories, decisions and cases that spark my interest and compel me to write something.  As they focus their curation in a narrow range, it’s closer to things that I want to know about.  Given the time constraints under which I write, having others do some legwork for me is a huge boon.

Some of my favorite posts involved the back and forth with other blawgers, where we would debate the merits of a decision or some narrow aspect of practice.  There hasn’t been nearly as much of that in the past couple of years as there were before, but that’s the ebb and flow of the blawgosphere. People come. People go. People get tired. People realize that blawging hasn’t brought them wealth and prestige, and decide it isn’t worth their time.  They move on.

One of the most troubling aspects of writing so many posts is that new readers see the post that day, but not the dozens of posts on the same or similar subjects that came before it. To me, this blawg is an accumulation of thoughts, and I hate repeating myself.  Each new post builds on what I’ve written before, at least in my mind. 

The new reader sees only the latest post, and castigates me for not mentioning something she thinks is critically important, not realizing that I’ve been down that path many times before. I get a bit snippy explaining this, and tell the reader to go look in the archives. It doesn’t happen too often.

The thought that brings a smile to my face is that if Chuck Schumer finally comes to his senses and nominates me to the Supreme Court (call me, Chuck), I’ve written far too much for anyone on the Senate Judiciary Committee to bother reading, so my ideas are buried like the needle in the haystack. They’ll never know what to do with me, and I can pull off the umpire analogy even though it’s utter nonsense.

Whether it means something or not, hitting the 5,000 mark is a milestone of sorts.  I tried to retire at the 5 year mark, but couldn’t break the addiction.  I do not plan to retire (again) today.  Writing is fun. It’s therapeutic. It makes me think and provides an opportunity for me to test my thoughts with my peers. I’ve made some friends and a ton of enemies.  What a long, strange trip it’s been. 

This is post 5,002, a number of no consequence whatsoever. And still my crippled fingers bang the keyboard.

Among the many risks one takes in Chicago, aside from well-coiffed hair being blown askew, is the laundry list of reasons why the police can seize your car, charge you for the pleasure, then forfeit it.  Drugs?  Weapon? Sex with someone other than your spouse who happens to require payment in cash?  This is why Chicagoans can’t have nice things.

In the case of Ivy Jackson, a couple of guys smoking a blunt in the front seat of her Mitsubishi was enough to do the trick, via Forfeiture Reform.  Officer FNU Ugarte nailed the perps, and poof, the car was gone.  The city has a killer administrative ordinance on the subject.

(a) The owner of record of any motor vehicle that contains any controlled substance or cannabis, as defined in the Controlled Substances Act, 720 ILCS 570/100, et seq., and the Cannabis Control Act, 720 ILCS 550/1, et seq., or that is used in the purchase, attempt to purchase, sale or attempt to sell such controlled substances or cannabis shall be liable to the city for an administrative penalty of $1,000.00 plus any applicable towing and storage fees. Any such vehicle shall be subject to seizure and impoundment pursuant to this section. This subsection shall not apply: (1) if the vehicle used in the violation was stolen at the time and the theft was reported to the appropriate police authorities within 24 hours after the theft was discovered ***; (2) if the vehicle is operating as a common carrier and the violation occurs
without the knowledge of the person in control of the vehicle; or (3) if the owner proves that the presence of the controlled substance or cannabis was authorized under the Controlled Substances Act or the Cannabis Control Act.

The best part is that not only do you lose your car, but you suffer an additional $1,000 “administrative penalty” plus the cost of the cops taking and storing (as if they were doing you a favor). In Jackson’s case, that came to more than $2,000.

Jackson challenged the seizure as a violation of substantive and procedural due process, based upon the absence of an “innocent owner” defense to forfeiture.  The 1st District Court of Appeals was unpersuaded.  The court swiftly dispensed with the rational relationship test:

Generally, “[l]egislation does not violate substantive due process protections if it bears a rational relationship to a legitimate governmental purpose and is neither arbitrary nor discriminatory.”

In the case at bar, regulating the possession of controlled substances and cannabis within a vehicle is a legitimate governmental purpose, and section 7-24-225 of the Municipal Code bears a rational relationship to that purpose, since it removes the vehicle used for an illegal purpose from further use for that purpose.

Don’t let the word “arbitrary” fool you. If the ordinance permitted forfeiture of shoes, it would pass muster as it would regulate walking from a residence to a car to prevent an illegal use.  Any string of words, no matter how laughable, would suffice.

But what about the innocent owner, the person whose property is lost but did nothing wrong?  While that might matter in a criminal proceeding, where the person sentenced to the loss of her car would have to first be convicted of a crime, it’s no impediment to administrative forfeiture at all.  It’s our old friend, the legal fiction of forfeiture in rem.  This isn’t a criminal punishment, which would be wrong.  Oh no, this is merely an administrative penalty, which is perfectly fine.

In reading the ordinance, Jackson asks us to consider “societal costs” and the fundamental notion that the innocent should not pay when they have done nothing wrong. However, as noted, we have upheld impoundment ordinances without innocent owner defenses because they “ ‘may still have the desirable effect of inducing [innocent owners] to exercise greater care in transferring possession of their property.’ ”

And doesn’t society want owners of cars to exercise greater care?  Who wouldn’t, right?  After all, an owner is liable for the negligence of the person to whom they lend a car and then harms someone else in an accident.  Of course, this isn’t a forfeiture, and reflects a choice between the victim of the accident suffering as opposed to the driver, who is primarily liable and the owner, who is secondarily liable and, by law, must carry insurance for the benefit of the victim.  But hey, the owner still suffers for her choices?

And yet, the decision is fundamentally an exercise in deferring to precedent, as there is indeed a long history of upholding forfeiture laws that reflect no proportionality, essentially no meaningful procedural due process and is, at its core, plain, old unfair. 

While the decision reads like a Scalia dissent, in that it upholds the constitutionality of the ordinance while leaving the absence of an “innocent owner” defense to the policy call of the legislative body, it still falls short.  It is not rational, except by the rending of rhetoric, to forfeit the property of an innocent owner, who neither knew nor had reason to know that her property would be used in an unlawful manner.  By definition, if the owner exercised due care and didn’t know, then there was nothing she could have done to prevent it and absolutely no “desirable effect” could be achieved.

What the court’s rationale does is place the owner in the position of being an absolute guarantor of every person who enters her vehicle, whether with her direct permission or by extension. Indeed, how much “greater care” can be demanded of a person when there is no way of knowing what another person may ultimately do?  Even if junior has never smoked dope in his life, there could be a first time. And if may well be in the car.  And if not junior, what about his girlfriend’s second cousin in the way to church doesn’t have a leftover seed in her purse?  The attenuation is easy enough to write about, but does this court suggest that the owner, the exercise of the greatest care ever, could prevent every possibility? 

Of course, the owner could do so, but only by never allowing anyone else in her car. Ever. Under any circumstances. Because, well, you never know. And that’s what they call rational in Chicago.

While private criminal defense lawyers and public defenders share a great many attitudes toward the system, there is one hole, big enough to drive a stretch limo though, that separates what we do and how we look at our respective roles.   Mark Bennett talks about a post by a public defender at Preaching to the Choir that began as a rant against Jose Baez.

It seems that Baez was writing a book about his successful representation of one of the most notorious cases of the decade, Casey Anthony.  It raises some very real questions as to the propriety of a lawyer writing about a client, which seems impossible to accomplish without breaching confidence.  It may be that Anthony approved it, and that she owes Jose Baez enough to let him have a free hand in writing a book and making some money off the case.

But the aspect of the rant that caught Bennett’s eye, was this:

I don’t begrudge my colleagues in private practice from earning a living and charging a fair fee for their work. But it makes me angry to see clients forced to sell cars, homes, land, or whatever else they can to pay lawyers who then join country clubs and buy BMWs.

Had the intrepid PD stopped at her anger about seeing clients forced to sell cars, homes or land, there probably wouldn’t be enough reason to write.  We share the pain of watching the accused forced to divest themselves of assets, accumulated from years of hard work, to fight false or spurious accusations.  Only a horrible system would compel such a thing.  Of course, not all accusations are false or spurious, but that’s a story for another day.

It’s the second  part of the sentence, that the money is used to pay lawyers who then join country clubs and BMWs.  This is a recurring theme in the interrelationship between public defenders, who perceive their duty as not merely defending the accused, but doing so at no cost to the accused, so that they don’t exacerbate their client’s misery.  Bennett addresses this:

As a lawyer who has prospered by defending people (doing well by doing good), I disagree. I suspect that it’s really easy for someone who’s getting a government paycheck plus benefits to say, “I would represent all my clients for nothing (or next to it),” but that’s not what she is in fact doing, and it’s a position divorced from the reality shared by the rest of the criminal-defense world.

Imagine that I represented everyone for next-to-nothing. I would be choosing a working-poor existence for myself and my family. What good would come of that? I might feel smug and sanctimonious, but I couldn’t help more people: even with my substantial fees I have about as many clients as I can effectively represent.

While our intrepid PD may not be getting rich off her job, she does get a regular paycheck and health insurance, something few private lawyers are familiar with. And most private criminal defense lawyers aren’t pulling down much more, if as much, as the PD these days.  Don’t let the BMW fool you. It’s leased.

Where the concern goes astray is that criminal defense lawyers are not priests of the law. We may take an oath of loyalty to our clients, and if we stretch it a bit, an oath of loyalty to the Constitution, but we surely take no oath of poverty. 

When times are tough, no one pays our rent or puts food on our table.  When times are good, we are absolutely entitled to enjoy the fruits of our labor, just like anyone else.  As recently discussed, there is no shame in getting paid for our services.  As a corollary, there is no virtue in getting screwed out of a fee.  Any PD want to shed a tear for the private lawyer who takes on a paying client only to get burned?

This is not to say that private criminal defense lawyers should deceive clients who are otherwise incapable of retaining counsel that they will lose if they stay with the public defender and win if they go with a private lawyer.  As we all know, there are excellent PDs and awful private lawyers; the manner of getting paid has no bearing on the ability of the lawyer, and PDs often have an internal support system that dwarfs what private lawyers can provide.

On the other hand, PDs carry ridiculous caseloads, and can’t provide the level of access and personal attention that private lawyers (who aren’t doing a volume practice) can offer.  Given the neediness of defendants and their families in such unfamiliar terrain, the ability to speak to someone who knows your name can be enormously important and a great comfort.

As Bennett made clear, to the extent the system sucks the working poor, or even the working not-quite-poor-but-doesn’t-have-a-spare-$50k-lying-around, dry, it is not the criminal defense lawyer who caused this problem or who is responsible for shouldering its burden.  It’s not that we take joy in our client’s being forced to sell a house to pay for counsel, but that we work for a living too.  There is nothing wrong with working for a living, and charging for our work.

The final clause of the public defender’s rant, the legal fees are squandered on such frivolities as country clubs and BMWs, making it anger-worthy that we render defendants destitute so we can enjoy a life of luxury. is a well-worn arrow in the socialist quiver.  What the money is spent on isn’t relevant. If it’s shoes for the kids or a tip for the caddy, the new rims for the M5, so what?  It’s not up to anyone to approve of how earned income is spent provided the spender isn’t otherwise on the dole. 

There may be some element of envy in this screed, or the sanctimony of the closet communist, but it feeds the misperception that a lawyer who has fulfilled his obligation to his client, who has reached an arms length agreement as to his fee, and who has been paid for his services, is still under the obligation of living a sufficiently austere life to justify earning a living.  It just ain’t so. 

No one is owed an apology for earning a living and, if it happens to work out that way, being successful at it. This is America, and we are allowed to be successful.  And there’s no shame in success, either.

As every dog lover knows, they are happy, playful creatures.  Their tales wag. They may drool and lick.  And sometimes, they jump into places they shouldn’t, like the interior of a car through an open driver side window in the midst of sniffing for drugs while under the control of their police handler.  It can happen, as Judy Tenuta might say.

And so, in United States v. Sharp, the 6th Circuit joins the third, eighth and tenth in holding that dogs will be dogs, thus removing their playful leap into a vehicle not a search under the Fourth Amendment.

It is well-settled that a dog’s sniff around the exterior of a car is not a search under the Fourth Amendment. Defendant appeals the district court’s denial of his motion to suppress because a narcotics dog jumped into his car and sniffed inside the car before “alerting” to the presence of narcotics. The canine’s jump and subsequent sniff inside the vehicle was not a search in violation of the Fourth Amendment because the jump was instinctive and not the product of police encouragement.

This follows distinctions made by others courts:

The Tenth Circuit was the first court to conclude that even though a drug detection dog jumped into a car through an open hatchback, the “dog’s instinctive actions d[o] not violate the Fourth Amendment” because the police did not ask the defendant to open the hatchback nor did the police encourage the dog to jump into the car. Stone, 866 F.2d at 364. In contrast, a dog sniff from the inside of a vehicle becomes a search that violates the Fourth Amendment when “the officers themselves opened the door” and “facilitate[d] a dog sniff of the van’s interior.” United States v. Winningham, 140 F.3d 1328, 1331 (10th Cir. 1998).

The line drawn was some affirmative act by police to facilitate the dog’s entry into the car, whereas here, the window just happened to be open (though that may have been because the defendant opened it when the police first approached his car, and was never given an opportunity to close it before being removed from the car) and the dog just happened to decide to jump in. Dogs. Sheesh.

It makes for a nice, bright line test, and doesn’t everybody love a bright line test almost as much as they love dogs?  Yet, there’s something remarkably unfulfilling about where the line’s been drawn.

For example, the dog has a handler, a canine officer who lives with, loves and, theoretically trains this dog.  Normally, the dog is supposed to be under the handler’s control, whether by tether or Vulcan mind meld, as is asserted when handlers explain how they know precisely why a dog has drooled on an object. 

Of course, the dogs themselves are highly trained machines, who can be trusted to behave with sufficient precision that the lives of humans are dependent on their “alert,” whatever that might mean (see Vulcan mind meld, above). It’s one thing to be frisky when they’re playing with the kids, but on the job, it’s another matter. The adequacy of their training is one of the foundational underpinnings of their acceptability as a trigger of probable cause.  And yet they aren’t trained to not go where the handler doesn’t want them to go? 

And finally, even if the cute doggy leaps unexpectedly into the car through a window open by no fault of police, was there some impediment to having the handler get the cute doggy out of the car?  Perhaps a stern “get the heck out of the car, Fido,” would do.  If not, maybe actual physical intervention.  But since it was well known that the dog had no place sniffing within the vehicle, was the handler incapable of getting the dog out?  Was the handler obliged to remove the dog from a place he had no right to be? Or does kismet dictate?

This suggests that there is a very real element of human intervention in the cute doggy’s actions. While the handler may not have facilitated his entry into the vehicle, an assertion which isn’t as clear to me as it is to the court, his failure to stop his dog from leaping through the window, or remove the dog from the car, is certainly a volitional act on the part of the police. 

But then, if the only purpose of suppression is to prevent police misconduct (as opposed to create a duty by police not to allow fortuitous entry to happen by their very own doggy), then why let the criminal go free because the dog was frisky?

And as long as we’re talking about dogs, Penn State lawprof  Erica Goldberg makes a very good point in her law review article, Getting Beyond Intuition in the Probable Cause Inquiry . 

Courts are proudly resigned to the fact that the probable cause inquiry is “nontechnical.” In order to conduct a search or make an arrest, police need to satisfy the probable cause standard, which the Supreme Court has deemed “incapable of precise definition or quantification into percentages.” The flexibility of this standard enables courts to defer to police officers’ reasonable judgments and expert intuitions in unique situations. However, police officers are increasingly using investigative techniques that replace their own observational skills with test results from some other source, such as drug sniffing dogs, facial recognition technology, and DNA matching. The reliability of such practices can and should be quantified, but the vagueness of the probable cause standard renders it impossible for judges to determine which error rates are inconsistent with probable cause.

Unlike cops, who by definition aren’t susceptible to either empirical analysis or rational thought, drug sniffing dogs are peculiarly easy to quantify.  Even the cops know it.  While it may be fine with the Supremes to cling to  Brinegar rather than give words, like probable, their accepted meaning, the vagaries of human rhetoric offers no excuse for the failure to quantify that which demands it. 

Or in the alternative, who cares if a drug sniffing dog is right only 12% of the time if he’s cute?

And you wonder why he’s laughing?

H/T Jonathan Adler at  Volokh Conspiracy
 

A few days after I reviewed the Scalia/Garner book, Reading Law, an email arrived from a Washington, D.C., lawyer named Neal Goldfarb.  He wrote:

Hi Scott. In light of your review of the new book by Scalia & Garner, I thought you might be interested in seeing (and possibly linking to) the series of posts that I’m doing about the book at LAWnLinguistics, I’m examining the parts of the book that deal with linguistic issues. So far I’ve done four posts, with more to come.

I don’t know Neal Goldfarb. I’ve never heard of him or from him before. But I’m always curious about new blogs, and I have more than a passing interest in linguistics, despite what you might think, so I took a look.

It’s a seriously nerdy linguistics blog, and it struck me as pretty interesting and quite solid on its merits.  One other thing struck me, however.  Nowhere in Goldfarb’s posts about Reading Law was there a link to my review. Nowhere in his blogroll did Simple Justice appear.

And so I responded to the email:

A call came in the other day from a lawyer who was asked by an acquaintance to represent her kid who got himself into a jam.  The lawyer asked what I thought he should do, as the acquaintance, over the next few days, became overbearing about the situation, from explaining how this trivial offense would ruin her son’s life, to asking for a ride home.

My suggestion was to do the case for free, make sure you beat it and not find yourself in the situation where you’re beholding to the acquaintance over a few bucks. “She’ll make your life miserable,” I told him, “but if you do it for free, she’ll be beholden to you and you can control her.”  His thought was exactly the opposite, that if she was going to make him miserable, he wanted to be paid well for the privilege. Why, he wondered, should he endure her for free?

Rob Fickman  wrote in a comment to a post by  Mark Bennett that criminal defense lawyers probably do far more pro bono work than any other type of lawyer.

I am always amused by the big civil firms giving Themselves a nice pat on the back for their pro bono work. They have a plaque up in each court house here congratulating themselves. Maybe the average diligent civil lawyer does 100 hours a year of pro bono work. The Bar thinks we should keep records of our pro bono time. The civil can keep track because it’s a relatively small amount of time.

The average diligent Criminal defense lawyer easily does 250 hours of pro bono work a year. We do not need to keep track or give ourselves bowling trophies.

It’s largely true, but there is an element to it that concerns me. We see something wrong and want to help right it. It tends to be our nature, and gives rise to much of the frustration we feel toward the system and its players. But it’s an impulse, a desire, that needs to be tempered and controlled, as Bennett explains:

When I take a pro bono case, it’s not because the client wants me but because I see a likely payoff in it for me—never money nor publicity, but a good story or entertainment or education or just the satisfaction of demonstrating that not all lawyers suck and making a difference that nobody else would make in a human being’s life.

No, I’m no hero. I’m just like any other junkie, except that my drug often makes other people’s lives better.

We don’t get a lot of satisfaction in this line of work, and take it where we can.  At the same time, reach into the wrong case and it can suck the life out of you, ultimately ending in misery.

Most blawgers get unsolicited emails from people who seek our pro bono assistance. Most of the time, the emails are incomprehensible pleas with unreasonable requests that fail to persuade us that there is either a grave injustice or that anything can be done to help.  Defendants have a tendency to view grave injustices differently than lawyers, and their request that we fly across the country to meet with them in prison to hear their story asks too much. 

There are instances, such as the story related by Bruce Godfrey in this comment, that reflect how a lawyer helped someone at the cost of five minutes of his life. I suspect every half-decent criminal defense lawyer has a similar story, and (thankfully) chose not to tell it. We don’t do it for the kudos, but because it was staring us in the face and, well, cost us nothing to fix.

But a phrase haunts me from my wayward youth.  No one will buy the cow if you give the milk away for free. The context was different, but the message remains the same. The culture is shifting toward the belief that we do this for love, for “justice,” rather than for a living.  When I go the grocery store, they charge me for the gallon of milk and bag of barbecue Doritos. I’ve yet to have a cashier say, “Oh no, you’re a criminal defense lawyer, so we want you to have these groceries for free as a ‘thank you’ for all you’ve done.”

This is a discussion I’ve had of late with Ken at Popehat, who has taken up arms against the “censorious asshats” who threaten free speech online.  He sends out the  Popehat signal seeking pro bono counsel for maligned bloggers. He writes letters. He does this because he feels it’s the right thing to do. He does this for free.  Ken is a mensch.

But in a number of these situations, there was ample opportunity for others to contribute to the cause. In one instance, Ken’s largesse was woven into an abusive political narrative to show how conservatives were the righteous victims of liberals. In another, there were two million claimed supporters of the cause.  There was nothing to stop the two million from each contributing $1 to the cause that was so dear to them, and yet they heaped only praise.

There are for-profit websites like Avvo whose business model is based on creating the belief that lawyers exist to give free (and often wrong) advise to anyone who asks. The purported give-back is that if you give enough free advise, someone will hire you when they really need a lawyer.

One of the recurring themes at  the Lawyerist is that there is no shame in asking to be paid for your services. That lawyers will jump in to help by providing pro bono services when they feel it’s appropriate, when they feel they can help, when the circumstances warrant, will never change. It was that way long before there was an internet to tell the world about it, and will continue because that’s who we are. 

But no, dear potential pro bono client. Lawyers are not a special breed of aesthetic ascetic who have taken an oath of poverty and dedicated their lives to your cause without compensation. To the extent all this talk promotes a different notion, it’s wrong.  Just like you, we work for a living. Just like you, we have bills to pay and mouths to feed.  We may be singularly charitable by nature, but that doesn’t mean we exist at your beck and call.  And if kindness is a two-way street, then don’t try to exploit our charitable nature when you have as much ability to carry the weight as we do. 

If you’re dying of thirst, we may give you free milk. But we make our living off of selling cows. Please don’t forget that.