When Frenchman, Baron Pierre de Coubertin, came up with the idea to create the modern Olympics in 1894, there were nine sports included: athletics, cycling, fencing, gymnastics, weightlifting, wrestling, swimming, tennis and shooting. Much has changed since then, as reflected by the push to include ballroom dancing as an Olympic sport, rivaling such others as synchronized swimming.

But fencing was an original, and one of only four events to have been featured since the first modern Olympics in Athens in 1896. And yet, in the 2012 Olympics, an inexplicable omission remains.

The fencing lord giveth and the fencing lord taketh away.

Last month, at the fencing world championships in Kiev, Ukraine, the U.S. men’s épée team won the gold medal, its first. Despite that accomplishment, the foursome won’t be able to take that momentum — and the group dynamic — to the Olympics this summer.

As a rule, the International Olympic Committee takes one team from men’s and women’s fencing out of the mix every four years, as a means of limiting the medals the sport can receive. And for the 2012 Games, men’s épée drew the short sword, as it were.

The fencing lord?  Hardly. Try the International Olympic Committee. There are three weapons in fencing, foil, saber and épée. and each has significant differences.  Yet in each quadrennial cycle, only two of the three weapons are included. Technically, this means there are ten medals for twelve events, covering both individual and team events for both genders in three weapons.

To accommodate this, a different weapon “draws the short straw” for each gender in each quadrennial cycle, so that one weapon is left out every three Olympics, but no weapon is omitted two Olympics in a row.

This peculiar situation arose initially because of gender parity, as men’s fencing included all three weapons but women’s fencing included only foil. When women’s fencing was expanded to include all three weapons, it “ate” two of the medals that had been previously available to fencing.

This wouldn’t seem to be all that much of a big deal.  By expanding the weapons for women’s fencing, the IOC need only add two additional medals and cover all three weapons for two genders. But inexplicably, this didn’t happen. Instead, they maintained the same number of fencing medals as before the expansion, forcing two events out of the Olympics per cycle.

Did the medals cost too much?  Not likely, given that medals are added for new sports with some regularity.  If they can afford to buy medals for new sports, not to mention the plethora of variations of sports such as swimming and track, it doesn’t seem that the price of gold is the problem.

For many new sports, aside from questions of whether they are sports or performances, issues arise from the need to build venues and infrastructure for their inclusion. This obviously isn’t the problem, as fencing venues are already part of the Olympics, and same strips (or pistes) as used for each weapon.

So why, in an original Olympic sport that has grown to six events in recognition of gender parity has the International Olympic Committee decided not to offer medals to include all twelve events?

No one has, to my knowledge, provided a satisfactory, rational answer.

Picture in your mind the administration of “justice” in Harpersville, Alabama.  Think slow, southern drawl telling the riff-raff how it’s gonna be, how they don’t cotton to folks “like you” ’round here, and then pretty much doing anything they please.  That’s what Shelby County Circuit Judge Hub Harrington found in Burdette v. Town of Harpersville.

When viewed in a light most favorable to Defendants, their testimony concerning the City’s court system could reasonably be characterized as the operation of a debtors prison. The court notes that these generally fell into disfavor by the early 1800’s, though the practice appears to have remained.ncd common place in Harpersville. From a fair reading of the defendants testimony one might ascertain that a more apt description of the Harpersville Municipal Court practices is that of a judicially sanctioned extortion racket. Most distressing is that these abuses have been perpetrated by what is supposed to be a court of law. Disgraceful.

It strikes this Yankee as inconceivable that there are still judicial fiefdoms in this nation that exist outside the recognized law.  And yet there are (and not just in the deep south).

The admitted violations are so numerous as to defy a detailed chronicling in this short space. The court will, therefore, attempt to enumerate only the most egregious abuses committed by the Harpersville Municipal Court and its agent for probation services, JCS:

1. Defendants placed on “probation” without an adjudication or sentencing order and/or without receiving a suspended sentence;

2. Defendants placed on “probation” with JCS only when. unable to pay the entire amount of assessed tines and court costs on the day of trial;

3. Defendants incarcerated for a probation violation (failure to pay, failure to appear, contempt of court…) without an adjudication or sentencing Order;

4. Defendants incarcerated for)l’ failure to appear in court, though only “ordered” to do so by JCS;

5. A defendants’ failure to appear or failure to pay often results in a new criminal charge with incarceration and additional fines and fees for contempt of court with no valid court order or adjudication;

6. Defendants not afforded a hearing as required by Rule 26.11 of the ‘Alabama Rules of Criminal Procedure;

7. Defendants placed on “extended” probation for many years beyond the two year maximum;

8. Defendants interminably held in the county work release program until all fines and fees are paid in full;

9. Defendants charged unconscionable fines and fees.

10. Defendants placed on “probation” are charged an initial “set up fee” of $10.00 and a monthly “probation tee” of $35.00 (arbitrarily raised to $45.00 per month at some point in time, though the Harpersville JCS contract allows for only $35.00 per month) which is charged as long as the defendant is on probation.

11. Multiple incarcerations were imposed upon the plaintiffs in the case at bar with no adjudication or imposition of sentence and fix probation violations over which the court had absolutely no jurisdiction.

12. Fines and fees charged to the plaintiffs in the case at bar reached into the thousands upon thousands of dollars.

Harpersville acknowledged that it made some “mistakes.”  That’s what it’s called when you get caught, whether you’re a criminal defendant or a municipal legal system that does whatever it pleases, law be damned.

Judge Hub Harrington (you’ve got to love the colorful name) recognized that this wasn’t merely a judge run amok, or a system that was slightly out of kilter, but a town that had a court system wholly disconnected from anything remotely resembling law in America and in utter ignorance of the Constitution.  Aside from addressing specific constitutional violations, and unearthing as yet unknown violations, his remedy went even further:

The mayor and every member of the Harpersville lle City Council shall be present in person for the hearing of August 20, 2012, and shall appear at any and all subsequent hearings in this case until final resolution, or until further Order of the court. These individuals, who are the officials ultimately responsible for the operation of the City, may wish to consult with Mr. Ward regarding the consequences of one’s failure to appear, especially when actually ordered by a court to do so.

Prior to the hearing, the mayor and every member of the city council shall have certified to this court in writing and under oath that he/she has read this Order and the depositions of Ward, Hall and Egan.

It might have been wise as well to require the mayor and council members to read and provide a report on the United States Constitution, with emphasis on why they are not exempt from its strictures.

The question remains how this apparently went on in the Town of Harpersville, County of Shelby, State of Alabama, and no one noticed until Dana Burdette brought an action seeking injunctive relief before Judge Hub.  It would appear that the town and county share a jail, Wouldn’t you think they had some inkling about what was happening in Harpersville Municipal Court?

But then the question of the private contractor for probationary services, JCS, raises independent issues. Certainly, the municipality is responsible for the performance of services by its outside contractor, but bear in mind the qualifications for an elected official in a small town stops dead in its tracks after “breathing.”  They are not required to know how to spell Constitution, no less be familiar with it.

So when they hand over their responsibilities to an outside “expert” contractor, they give no thought whatsoever to whether that contractor adheres to the requirements of law or, as was the case here, rapes the citizenry while the elected officials sit back and have a cold beer, proud of the efficient way they’re running their system.

Thankfully, Judge Hub cared enough to do the unthinkable and seize oversight of this cesspool. Why it too so long for somebody to notice, however, remains a question unanswered, and that’s not good enough in America.

So  Mashable reports that Facebook, the animal that launched a pretty good movie and an uninspired IPO that made a peculiar kid incredibly wealthy, reads your chats. And this surprises people?

The screening process begins with scanning software that monitors chats for words or phrases that signal something might be amiss, such as an exchange of personal information or vulgar language.

The software pays more attention to chats between users who don’t already have a well-established connection on the site and whose profile data indicate something may be wrong, such as a wide age gap. The scanning program is also “smart” — it’s taught to keep an eye out for certain phrases found in the previously obtained chat records from criminals including sexual predators.

If the scanning software flags a suspicious chat exchange, it notifies Facebook security employees, who can then determine if police should be notified.

Privacy and Facebook are often mentioned in the same sentence, and not in a good way.  Initially, people somehow forget that it started as a means of public dissemination of information, images and insults. This was the promise of social media, and it was meant to be social.  Nobody promised you a personal, private place for promiscuous peccadillos.

Remember MySpace?  It was the leader in the space before Facebook suddenly appeared, and quickly devolved into a cesspool of child predators. Parents clamped down on their children’s newfound bestest friends, ordering their children to delete their page and trust no one.  That adults seeking children would flock there was no surprise. Same reason as why Willie Sutton robbed banks.

But Facebook never made any pretense of caring about your privacy.  It doesn’t charge you to use it, and had to monetize itself somehow, using whatever nuggets you gave it to sell to marketers. And you knew this. You did.

It may feel as if you own your Facebook page, with some inherent right to control not only your fate, but your personal information, but only the most foolish were unaware of the business model.  That we now learn that someone developed algorithms to detect bad things happening should come as no surprise.  It may feel like ours, but Mark Zuckerberg just lets us hang out there as long as we don’t piss him off. 

The explanation is neither hard to deduce nor hard to appreciate.  Facebook doesn’t want to suffer the same fate as MySpace, or become a facilitator for the worst the internet has to offer.

Facebook works with law enforcement “where appropriate and to the extent required by law to ensure the safety of the people who use Facebook,” according to a page on its site.

“We may disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law. This may include respecting requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law under the local laws in that jurisdiction, apply to users from that jurisdiction, and are consistent with generally accepted international standards.

“We may also share information when we have a good faith belief it is necessary to prevent fraud or other illegal activity, to prevent imminent bodily harm, or to protect ourselves and you from people violating our Statement of Rights and Responsibilities. This may include sharing information with other companies, lawyers, courts or other government entities.”

While people seem to forsake privacy on the internet in the hope of public adoration and the chance to become the next Justin Bieber (or maybe just get a date), they simultaneously want to believe that they can pick and choose what’s public and what’s entirely their own at their convenience.  Facebook never told you that was the case. In fact, Facebook has always been pretty open about the fact that your use of their facilities left you at their mercy.

While the “do it for the children” rationale tends to conveniently justify pretty much everything these days, the issues that persist when it’s used to back a law are very different than when a private entity decides that it would rather not take a risk.  Facebook is a corporation, not a government entitlement program.  It gets to make its own choices as to what it allows to go unnoticed. And noticed. We’re just guests in their home.

The hard message is that nobody makes you set up a Facebook page. Nobody forces you to put that drunk picture online, or update your status that you just robbed a bank.  And certainly, nobody promised that you can troll for children, or loose women, or drugs, or contract killers, without anybody noticing.

Not surprisingly, Facebook has the technological know-how to accomplish its purpose in a relatively unobtrusive way.

When asked for a comment, Facebook only repeated the remarks given by Sullivan to Reuters: “We’ve never wanted to set up an environment where we have employees looking at private communications, so it’s really important that we use technology that has a very low false-positive rate.”

You have to say something that sets off alarms before an actual person takes a look. Don’t want anybody looking? Then don’t say anything that would be sufficiently compelling to a computer program that it comes off as pretty bad or dangerous.  Or if you can’t control your impulses to that extent, do use Facebook.  Or if you can’t manage to exist without being an integral part of social media, pretend your Zuckerberg and come up with your own alternative.

But you don’t have a right to enjoy the largesse of a private entity, use its facilities, be part of its fun, while expecting that it doesn’t have the authority to keep its house clean.  And just so you know, anybody stupid enough to believe that one can enjoy the wonders of social media while maintaining privacy is fooling themselves.  It was never private, and never meant to be private. If you want to keep your personal information, your conversations, to yourself, take a walk and have a nice chat face to face rather than Facebook to Facebook.  Your privacy is your business, not Facebook’s.

Academics on Long Island is like football in Texas: something worth fighting over. And having been around long enough to watch babies have babies, you tend to see the same fights revisited as a new generation discovers the same problems their parents fretted over. Except they forget Santayana’s admonition.

In a Newsday op-ed,  Lane Filler revisits the plight of the student who, at least in daddy’s eyes, is smarter than the others.

Deciding what to teach children based on how old they are makes no more sense than basing their lessons on how much they weigh, or how tall they are.

The folly of relying on such irrelevant metrics was highlighted this week when a national study was released by the Center for American Progress. According to the researchers who compiled it and the media that reported on it, the study showed kids find school too easy. But that’s not the important conclusion to be drawn from the data, and that interpretation is so political it makes my head not just swim, but drown.

It’s also not quite what the study shows. Rather, some kids find school too easy. Others, too hard. Still, others just right. Apparently, the tale of Goldilocks wasn’t bedtime reading in the Filler household.

Welcome to the current educational model: “No Child Can Be Allowed Ahead, or Left Behind, So Let’s Just Sit Here.”

Have you figured out the gripe yet? Of course you have, as it’s impossible not to see this freight train barreling down the tracks.  Crash:

Years ago, students were divided into classes by aptitude and competence, so they could learn at the pace best for them. This has largely fallen by the wayside. Too many of the “gifted” kids came from white families with money. And besides, we now know that all children are special and talented, even if only at staring uncomprehendingly when faced with a curriculum beyond their ken.

So what happens now? Everyone has the same lessons, the kids who are falling behind get special help, and the gifted kids get screwed.

Actually, years ago schools consisted of one room. Children of all ages sat together, and the teacher roamed about, from youngest to oldest, smartest to, well, not smartest, teaching as much as she could. It was always a “she” back then.

But the smear of the parents of Slackoisie children couldn’t be made more clear. The idiot children are “special and talented,” Filler’s pen dripping with contempt and ridicule, in order to make the only worthwhile point, that it’s the screwed gifted-children who are really special.  And why would he say such a thing?

Last year my daughter tested in the 92nd percentile of eighth graders in Language Arts. But she was in the fifth grade. In math she’s only just above average, but again, for a class three years older. By law and practice, my daughter is not allowed to learn in school.

And the alarms go off. The gravamen of the editorial is that Filler’s fifth grade daughter didn’t receive the level of instruction he thought appropriate to develop her brilliance.  For the record, anecdotal studies show that 94% of all Long Island parents are absolutely certain their little darling is gifted, far above the median, and in desperate need of education that leads directly to freshman year at Yale.

There’s nothing new about Filler’s gripe. Public schools are geared toward the average student of necessity. Although every parent believes the school should adjust their curriculum to meet the personal academic needs of their precious baby, The logistics are problematic, there being far more students than teachers such that each child deemed gifted by daddy can’t have a teacher all their own.

Of course, nothing stops a parent from supplementing their child’s education, whether by the wealth of special programs offered to gifted students (it’s a cottage industry on Long Island, since parents of means spare no expense to compensate when it comes to their baby), or spending an hour doing calculus around the dinner table.  But why should parents have to exert such energy when they’re paying ridiculous taxes to schools to provide a boutique education geared specifically to each child’s individual needs?

In a few years, Filler will find out that students are divided up by skill level, with some herded into special ed classrooms and others into advance placement. This never happened in fifth grade, but accuracy tends not to guide the parent scorned.  If you think his head is drowning now, just wait until his daughter is told she’s “not quite right” for AP physics, forced to wallow with the groundlings in mere Honors courses.

This attitude, of course, is nothing new. Nothing new at all. Filler replays the boomer demands that gave rise to the Slackoisie, the entitlement of their special children to a bespoke life, which in turn left them sitting on the basement couch munching Cheetos and wondering why the rest of the world doesn’t recognize how special they.

But that’s not why Filler’s op-ed deserves to be called out, and why Lane Filler, who can barely muster enough sympathy to admit that learning disabled children should get a free appropriate public education while his gifted darling gets screwed. 

Lane Filler sits on the editorial board of Newsday.  Lane Filler gets to parlay his editorial board position into a column to vindicate his personal gripe on behalf of his daughter in a newspaper.  There are issues of consequences affecting the world, not to mention New York and Long Island, but Newsday has turned over precious column inches to a father whose baby isn’t getting all he wants for her. Since he’s got the keys to the backdoor, why not use it for his personal advantage, right?  Isn’t personal gain what freedom of the press is all about?

And now, some personal advice from a father who is a veteran of almost every battle one can fight with a school district at the polar extremes of the educational spectrum. You never stop advocating for your child, but it’s lunacy to think that schools can recreate themselves to meet the demands of every parent or every student in every instance. Public schools can’t neglect the mass in the middle to cater to the handful of gifted students, and even if they could, they’re not up to the task. Push for as much as you can get, and supplement it with whatever else you can provide.

But to air your personal issues in a newspaper, your elitist expectation that your own special child should be the center of everyone’s universe, is a whine too far. Newsday should never have published it, and you should have had the good sense not to abuse your access to fight your personal battles at the expense of a free press.  You were not only wrong, but embarrassingly so. If your daughter is truly gifted, it must have come from her mother.
 

Lt. Mike Denton of the Owasso Police Department in Oklahoma was a bad cop.  Not because I say so, but because Owasso City Manager Rodney Ray says so, and fired him for it.  Denton was fired for using excessive force following the arrest of Bryan Scott Spradlin,

Answering a call about a disturbance caused by an intoxicated man, numerous Owasso police officers came into contact with Spradlin during his arrest at a residence in the 11610 block of East 83rd Street North.

Spradlin refused to obey commands during a field sobriety test and resisted officers’ attempts to handcuff him, reports say. Officers Jonathan Foyil and Ben Wolery forced Spradlin to the ground, and as Wolery tried to gain control of Spradlin’s hands, he attempted to bite Foyil’s arm, the reports state.

After Foyil delivered a burst of pepper spray to Spradlin’s face, he was placed in handcuffs. A straight-blade knife with a taped handle was recovered from Spradlin’s shorts pocket, reports indicate.

Denton and Officer H.D. Pitt had to carry Spradlin into the police station because Spradlin refused to walk up the steps into the building, according to a police report.

Nothing unusual in Tulsa. Except Spradlin had these bloody wounds on his face that he didn’t have before.

Evidence showed that Spradlin went limp on the concrete steps leading to the ramp, causing him to fall face forward on the surface, records indicate.

And then there was the part where Denton’s elbow was assaulted by Spradlin’s face. While all of this should have been videotaped, since the officers wore body cams, they always seemed to be pointed in the wrong direction, except for this part.



Then there are two additional details that seem to get lost in the story, that when Spradlin was being walked up the ramp to the door, Denton stepped on his head.  And after Spradlin fell, he was pulled up by his cuffed arms behind his back, his arms being hyperextended above his head from behind. Arms don’t tend to work that way.

Good enough for a firing?

In college, I was trained in labor arbitration. I read the bible,  Elkouri & Elkouri, from cover to cover. I got it.  And you aren’t going to like it.

In a 21-page report summarizing a March grievance hearing, arbitrator Edward B. Valverde wrote that while Lt. Mike Denton used “unreasonable and unnecessary force,” his actions did “not rise to the level of excessive force within the meaning of existing case law,” and the discipline imposed is “excessive under all the circumstances.”

The arbitrator found that Denton stepped on Spradlin’s head while carrying him up the ramp, records indicate. Valverde also determined that Denton pulled Spradlin’s handcuffed arms above and beyond his head as he was lying in the lobby and struck Spradlin’s face three times with an elbow in the sally port, documents indicate.

None of the three instances rose to the level of excessive force, and no clear evidence was presented that Denton injured Spradlin in any of the incidents, Valverde found.

It’s not that Denton didn’t do everything bad to Spradlin that was alleged. He did, Everyone says so.  But in labor arbitration, that’s merely the starting point. It’s not the labor arbitrator’s job to protect the public and facilitate the police department’s ridding itself of violent, abusive cops.  Not at all. 

The labor arbitrator is charged with two tasks. First is to enforce the requirements of the union contract, which typically contain provisions that would make a mass murderer blush. While criminal laws are primary to all other contracts in this nation, so much so that they compelled judges to riddle the Constitution with exceptions to accommodate the need for convictions, a police contract is the only document that trumps all laws.  It’s a policy thing, because they need it more than the rest of us. They’re our protectors, you know, and that entitles them to special dispensation.

The labor arbitrator’s second task is to determine that all discipline of police officers is fair. Fair is defined by the lowest common denominator, the bar of other police officer behavior.  It could be a high bar. It could be a low bar. It could be a very low bar, and so it was here.

Valverde determined that Denton “is an above average employee who has demonstrated superior performance on more than one occasion in the past.” The arbitrator also found that “based on Denton’s quality work record and OPD’s demonstrated level of tolerance involving employee misconduct,” a written reprimand is the appropriate level of discipline.

While the man on the street doesn’t get his first three elbows to the face for free because he was otherwise a pretty good guy, a labor arbitrator is constrained to consider a police officer’s past performance and prior disciplinary record, in order to determine whether discipline is fair.  The rule is that discipline should increase in severity, beginning with a warning, then reprimand (first oral and later written) and only working its way up to discharge after all levels of lesser discipline have been imposed and failed.

And there is a union lawyer, in this case Patrick Hunt, who handled the grievance through Fraternal Order of Police Lodge No. 149.

“The impression, I think, was that Mike beat this guy up and did all this damage to his face,” Hunt said. “What came out in the hearing is that his injuries to his face were caused because he did a face plant as he was taken into the station. He stopped at the steps. We call it ‘playing dead.’

“He crashed forward and smashed his face. Later, Mike smacked him with his elbow in what we call the sally port area” at the jail.

This was his defense, arguing how the perp was to blame for “playing dead,” making the injuries Spradlin’s fault as he chose to crash forward and smash his face on the concrete.  The elbow in the face thing was just no big deal.

Sometimes conduct is so serious as to justify jumping ahead, bypassing the oral warning for example when they’ve left too much needless blood on the tracks.  But there is no sanction more severe than discharge, and an arbitrator would be remiss in his duty if he allowed an employer, even a public one, to take such a huge leap forward when it wasn’t warranted.

And what makes discharge warranted? When similarly situated employees aren’t treated to lesser sanctions.  And here is where it tends to fall apart.  When the police tolerate abuse and misconduct of prisoners when it’s not on video, it becomes part of the argument to the arbitrator that the occasional beating of a defendant is nothing out of the ordinary.  And the arbitrator feels constrained to limit sanctions in one case to the manner in which they are imposed in other cases. It has to be fair and consistent.  And who better to know how other abuse by other cops is tolerated than a cop?

From the outside, it seems unimaginable that a labor arbitrator is so utterly lacking in understanding as to put a cop like Mike Denton back in uniform.  But he’s just doing his job.

“We’re happy about it,” Hunt said. “Mike’s very happy about it.”

And why wouldn’t he be?  The sanctity of public sector unionism remains untainted by the firing of a bad cop.

H/T Reddit’s  Bad Cop, No Donut FitzMuffKnuckle

It’s a scary book, in every conceivable way.  It’s big. It’s heavy. It’s 567 pages. When it arrived on my doorstep, I was afraid to touch it. And it’s written by Supreme Court Justice Antonin Scalia and Black’s Law Dictionary editor Bryan Garner, with an introduction by Chief Judge Frank Easterbrook. It’s like inviting death into your home.

And yet it was good. Really good. Well, let’s qualify that by saying Reading Law, published by West (who begrudgingly sent me a free review copy) is made up of two writings, one a polemic arguing why textualism is the only legitimate approach to the interpretation of law (and why all other approaches are  wrong, wrong, wrong) and a second providing a massive survey of the canons of construction, divided up into small bites and exceptionally well explained.

The philippic is called an “introduction,” consisting of 46 pages, duly footnoted, explaining why Scalia’s approach to the interpretation of laws is the only right one possible.  While he’s often called an “originalist,” he obviously prefers to be characterized as a “textualist.”  He defines his view:

Theories of legal interpretation have been discussed interminably,  and often so obscurely as to leave even the most intelligent readers–or perhaps especially the most intelligent readers–befuddled. So why would we add to the number? In fact, we do not. Far from proposing yet another novel approach, we seek a return to the oldest and most commonsensical interpretive principle:

In their full context, words mean what they convey to reasonable people at the time they were written–with the understanding that general terms may embrace later technological innovations.

Hence a 2012 statute referring to aircraft, if still in effect in 2112, would embrace whatever inventions the label fairly embraces, even inventions that could not have been dreamed of in 2012. The exclusive reliance on text when interpreting text is known as textualism. We believe that this approach elicits both better drafting and better decision-making.

In an op-ed in the Philly Inquirer, Drexel lawprof Dan Filler raises a “radical” notion about “radical” sex crime laws.  Have they gone so far off the deep end that they backfire, and dissuade the reporting of sex crimes?  Using the case of Jerry Sandusky to raise the issue, Filler contends:

But there is another lesson to be learned from this horrible story, and it’s time we acknowledged it. Penn State’s administrators might have buried the charges against Sandusky partly because our national anxiety about sexual abuse has resulted in a lattice of laws so toxic that people are afraid to report it. Although Penn State officials may have wanted Sandusky to stop, they also may have feared the overwhelming consequences of reporting the crime.

Penn State’s former athletic director, Tim Curley, reportedly sent an e-mail to peers recommending that they respond to reports of Sandusky’s crimes by telling him that his misconduct had been discovered, urging him to get treatment, notifying his charity, and prohibiting him from bringing his “guests” on campus. Former Penn State president Graham B. Spanier reportedly conceded the dangers of evading Pennsylvania’s mandatory reporting requirements but agreed to the strategy as a “humane and reasonable way to proceed.”

Over the past two decades, advocates, the media, and politicians have stoked public fears about sexual abuse. The resulting panic has had serious consequences. It has subjected all sexual offenders to greater stigma and, more importantly, has led to a complex array of laws that dramatically increase the costs of conviction even for less serious sexual offenses. In some states, a low-grade sex offender faces greater repercussions than a murderer.

Prison is just the start. Every state also imposes the public shame of community notification. Most restrict where such offenders can live — in some cases so severely that homelessness becomes the only viable option for offenders. Some states are even incarcerating people beyond their regular sentences because they are expected to commit sex crimes in the future.

There is no question that society needs strong laws prohibiting and punishing sexual abuse. But those laws must be well-reasoned and tailored to be both just and effective. Over the past 20 years, society has approached sex crimes with unbridled passion and anger. This emotional search for justice is entirely appropriate in particular cases; that is one purpose of sentencing. But when the same intense feelings become an engine for policy-making, they may undermine the crafting of effective laws. The goal, after all, is to prevent Jerry Sandusky and others like him from victimizing children, and that won’t happen if we deter people from reporting their crimes. When laws become so radical that they work against the protection of victims, they are inherently inhumane.

In a  USA Today op-ed, my pal Josh King, general counsel of Avvo, argues against the zeal to hold individual corporate executives culpable for wrongs committed at corporations under their watch.

More prosecutions of corporate executives! It’s a reflexive call to make in the wake of the deepest economic slowdown since the 1930s, and a string of scandals in both the financial sector and industries beyond Wall Street. But while perp-walking executives offers an undeniable appeal to the retributive side of our nature, is it sound policy? Does it deliver the goods in making our marketplace sounder, safer and less corrupt?

The answer has to be almost certainly “no.” What lesson did law enforcement learn from the string of prosecutions after the financial sector meltdowns of a decade ago — WorldCom, Tyco, Enron, etc.? That aggressive pursuit of individual convictions comes at great cost.

While there’s no doubt that convictions come at great cost, it’s not entirely clear that the examples offered back up the assertion.  There were identifiable individuals in those cases who made an active choice to engage in conduct that caused enormous economic harm to a great many unsuspecting victims. Being a corporate executive doesn’t absolve one from facing the consequences of the decision to engage in fraud.

But then, the outgrowth of the string of high profile debacles a decade ago changed our national perception of both corporate crime (I hate the phrase white collar, for reasons previously explained) both by causing Congress to press for enormously stiff penalties rivaling murder and by inserting young government lawyers with no business acumen into corporate decision making to the point of deciding how many pens to order and from whom.

Josh goes on to suggest that the public psyche as relaxed a bit since the Enron days, no longer demanding death to the executives.

The Justice Department has in recent years adopted a more nuanced approach to corporate wrongdoing. Through the use of deferred prosecution agreements and similar arrangement, Justice has been able to accelerate investigations and focus more on ameliorating problems at the root.

Corporate executives, no longer faced with a Hobson’s choice between a plea bargain and a bet-it-all criminal trial, are free to reach arrangements with the government that help ensure the enterprise is run more soundly — often accompanied by a hefty settlement payment.

This may be the way it looks from a distance, but tell it to the former CEOs and CFOs and SVPs enjoying a lengthy vacation in Club Fed.  While the big news is the billion dollar penalties levied on the miscreant corporations who told us their laundry detergent is new and improved, there is often a human being or two named in the last paragraph who will be the face of corporate malfeasance when sentencing time rolls around.

While the Board of Directors makes the decision to agree to buy the corporation’s way out of the accusations, the warm bodies who were once their most beloved business stars are thrown under the bus in the process. Anything to keep the corporation viable. You can always find a new CEO.  The problem, apparently, is that the corporation is the star of the investigation, so few know or care about the lives sacrificed so the corporation can live.

This is not to say that prosecution of corporate executives is never a good idea. But it is a tool of limited applicability. The threat of prosecution isn’t what makes the vast majority of executives want to do the right thing. It’s their integrity, their drive to succeed — and their fear that a misstep will cause the business they’ve worked so hard to build to be undone. Law enforcement should leverage this attitude and focus on those outcomes that result in better-run businesses — not more corporate executives behind bars.

Here’s where the lines gets drawn.  There are cases where individual corporate executives make discrete decisions to engage in crime, usually a deliberate fraud or bribery.  But these cases are exceedingly rare. The reason the threat of prosecution doesn’t work is because the executives aren’t committing crimes at all, and certainly not in their own minds.  They are making business decisions which, when held under a microscope and viewed by a kid from Justice who can only see black and white, has no clue how businesses function and no history in an industry, scrutinizes their decisions as to whether they’re the decisions she would make. If not, then it’s a Crime!

The problem can stem from industry practices, developed decades ago of necessity to accommodate laws at the time together with other real world influences, like union contracts (a huge influence) and the public’s demand for the availability of the products they demand at a price they can afford. Everyone in the industry knows about the practices, and they were firmly in place long before corporate executives were given their corner offices.

Everyone knew about it. Everyone except the kid at DOJ, who was shocked to learn such horrible things were happening. By his account, the industry practice was fraudulent and evil, and the executives should have seen it his way and stopped it immediately. Their failure to do so made them criminals.  Remember, this is the same government whose rules demanded they buy $640 toilet seats (actually, it was a toilet seat shroud, and it was later corrected to $100 after public outrage, but the Navy originally approved it at $640) .

The CEO is expected to know everything, every decision, every choice, every function performed by thousands of people under him. Trust your people to do right, to follow policy, to weave their way through a hundred obstacles and demands, and come out the other side with a product that works, is affordable and makes the corporation a profit, and suffer the consequences if any of them screw up.  At least in the eyes of a Justice Department lawyer.

Of course, not everybody appreciates what corporations do. Max Kennerly offers the alternative view:

Let’s call GlaxoSmithKline what it is: a criminal enterprise. GSK didn’t miss the finer points of a couple red-tape regulations: the DOJ alleged they tampered with scientific studies, concealed safety data, then lied to doctors and patients and, if that didn’t work, outright bribed the doctors.

Evil corporate greed.  A criminal enterprise (in ominous boldface).  They must pay for their crimes, and he’s pissed that no one is going to prison…

Unless, of course, the defendant did the deed in service of a big corporation. No one at GlaxoSmithKline is under any threat of prosecution.

So actual prison time, even just the threat of prosecution, for selling people deadly snake oil is out the window. Even the $3 billion is less than it seems, too; calling it a “slap on the wrist” isn’t quite right, but it is by no means real punishment, perhaps more a whisternefet. The money is all being paid by GlaxoSmithKline, not by the employers, officers or directors involved, so it does nothing to deter future drug company employees from doing exactly the same thing — which we know they will…

Max points to no individual who committed a crime, but certainly someone, someone, in the generic evil corporation must be guilty of something, and so the absence of a warm body sent off for a decade at Club Fed proves that the fix is in.

He’s hardly alone it taking such a retributivist view, that someone must be punished even though they have no clue who or why. No consideration is given to the life-saving drugs the evil Big Pharma invented that wouldn’t exist but for their willingness to invest in research.  Or that Big Pharma has drastically cut back research following the imposition of these massive fines.

Tell someone who would have lived because a cure was discovered by evil Big Pharma (and we’re not talking about restless legs syndrome) that his death was unavoidable because someone had to go to prison for overselling Paxil, and it turned out to be the guy who would have invented his drug.

The point isn’t that corporate executives should never be prosecuted, or convicted, or imprisoned (though not to the extent of an ax murderer). The point is that our national outrage toward corporate crime has gone overboard, and the aggressiveness of government investigations and prosecutions of conduct that hadn’t been considered criminal for decades can now put a corporate executive who did nothing more than effectively perform his job in a federal prison for a very long time.

And if you’re wondering where American jobs went, or why prices are out of control, or why products no longer work, or why there is no cure for your child’s disease, consider the implications of people screaming criminal enterprise at corporations that may be far from perfect, but also far from criminal.

Any criminal defense lawyer who’s tried a case knows the feeling of getting punched in the gut when the judge softly utters the word “denied” after you’ve tried to call an expert to testify on behalf of the defense.  False confession expert. Eyewitness identification expert. Police procedure expert. Your defense may depend on it, but the judge won’t care. Denied.

Yet the lawyer for Edward Krawetz somehow  managed to get an expert on the witness stand to opine that the defendant’s conduct was “objectively reasonable.”  How could that be, you ask?  Well, Krawetz was a Lincoln, Rhode Island cop and this was his conduct.



You saw that, right? You saw how the drunk, belligerent woman, sitting on the curb, hands cuffed behind her back, drunk, attacked the officer with her bare foot, swatting at his shin?  Do you have any idea how much a barefooted swipe at a shin can hurt?  Must not let it happen again, or the officer might be permanently disabled on full pension and not be there for us when rapes need to be stopped.

The other police officers present did not seem terribly concerned about Krawetz’s boot to the head of this woman, who had committed the heinous disorderly conduct.  The suit who approaches the officer immediately after the boot struck head struck pavement, the one who appears to be wearing a press badge type cord around his neck and asking Officer Krawetz for directions to the nearest Dunkin’ Donuts.

On Thursday, the defendant’s fellow police officer at Twin River that evening testified that Officer Krawetz never expressed concern for his own safety, never said he feared serious bodily injury, never yelled out that he was in pain and never sought medical attention.

“Did he in anyway indicate to you, that he felt he was in danger of serious bodily injury?”

Patrolman Russell Enos replied, “No.”

Former criminal defense lawyer, television star and disco dance instructor, Ken Lammers, who went to the dark side as an assistant Virginia Commonwealth Attorney, offers a quick lesson to baby prosecutors: Figure out which defense attorneys are trustworthy.

Now, if you’re a sane person, how much you like a person probably has something to do with that person’s trustworthiness. However, the converse does not necessarily follow. There will be all sorts of defense attorneys whom you will find trustworthy and not be good buddies with because they are much older or much younger than you, have different interests, or you just aren’t similar types . Remember that the fact you aren’t buddies with someone does not establish that person as untrustworthy.

How then do you determine trustworthiness? Well, one of the advantages of criminal law is that we tend to deal with the same attorneys over and over. It is truly a local enterprise. The people in your office will be able to give you a heads up on pretty much everyone who walks into the courthouse. This is how you will sort out the most untrustworthy. When everybody in the office starts regaling you with stories of how John Smith and Pete Greene have messed people over time and time again you’ll know not to trust those individuals. After that it gets more difficult. Most of the time there’s no easily discernible line in the sand.

After you get past the defense attorneys who are absolutely untrustworthy you will find others who will be untrustworthy as to certain matters. A strange phenomenon which you’ll run into every once in a while is the lawyer who will be straight as an arrow in everything else, but will lie like a dog in order to get a continuance. Usually, you’ll get tipped about this lawyer by people in your office.

Beyond that you are going to have to start making calls on your own. Start out being somewhat conservative and loosen up some over time. Eventually, no matter what you do, you will get burnt by some defense attorney whom you trusted too much while you were in a hurry or not paying enough attention. Don’t let that sour your relations with other defense attorneys. Adjust your behavior toward that attorney accordingly and let others know about it.

Trust but verify. I know it’s a hackneyed phrase, but it does represent a certain reality. You must set a level below which you will not apply trust to anyone, even the defense attorneys whom you most trust.

Why?

Well, for a variety of reasons. Foremost among those is that even the most forthright defense attorney is often operating with limited knowledge – usually what her client has told her.