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Incentive to Punish

Brendan Sullivan, who represented Alaska Senator Ted Stevens in his botched federal prosecution, asks in an op-ed in the Washington Post, where’s the punishment? The prosecutorial misconduct resulted in two reports, a 672 page tome by the Department of Justice and the independent report of Henry Schuelke, weighing in at a mere 500 pages, which concluded that

the prosecution was “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witnesses.”

If you lie to a federal agents, you commit a crime. 18 U.S.C. §1001. Ask Martha Stewart if there is anything funny about it. But when an assistant United States attorney lies to a federal judge, whether by commission or omission, it’s different.

Specifically, the government failed to disclose that its chief witness obtained a false affidavit from a woman with whom he had sex when she was underage. This was of great significance to the defense, to show that the witness had suborned perjury on a prior occasion. Lies in a letter in which prosecutors purported to disclose information to which the defendant was entitled are characterized by the report as “poor judgment.” In any other situation, the department would call sending a false letter an “intentional” act.

And in this case, one of the worst known examples, heads would roll. Just not too far.

Two prosecutors engaged in “reckless professional misconduct.” One received a 40-day suspension without pay; the other, a 15-day suspension without pay — “punishment” that pales next to the misconduct.
One supervisor in the department’s Public Integrity Section was found to have “exercised poor judgment by failing to supervise certain aspects of the disclosure process.” There was no punishment at all for the most senior prosecutor in the case.

And what of Nicholas Marsh, the prosecutor who committed suicide during the course of the investigation?

The department made no effort to attribute fault to the prosecutor who committed suicide during the course of the investigation. On balance, leaving him out of the report is a decent thing to do. But it is hard to square with the public’s right to know all of the elements of a case in which prosecutors, not the defendant, were the wrongdoers.

Propriety demands that we not speak ill of the dead, though such decency isn’t always shown the deceased when, rather than work for the DOJ, the dead man lost his life in a hail of police bullets or the execution chamber.

Sullivan lays out the scene, with a couple of hands duly smacked for being wayward prosecutors, a bit too cowboy-ish in their zeal but not so evil as to warrant more than a very stern look and a few weeks off. The government’s fear is that they not suck the desire to imprison out of their people by forcing them to think harder about giving the defense half a chance. That would never work.

And, after all, didn’t Judge Emmet Sullivan dismiss the case? Isn’t that good enough for the defendant. Isn’t that sufficient for society?

No. No it’s not.

There are two paths by which a prosecutor will find himself adhering to the rules that bind his service. One is that he inherently believes in being fair and honest with the defense, not believing that his side alone sits at the right hand of god and anything he does to achieve the only righteous outcome, the conviction of the bad guy, is justified. These prosecutors exist. I’ve met them. They are good, honest people for no reason beyond the virtue of being good, honest people.

The other path is incentive driven, for those who might be inclined to fudge the details as far as they can get away with it. Or those whose will to do right is overcome by the zeal of a group in a high profile case to not lose and disgrace their office. They forget that getting caught dirty will also disgrace their office, but then, the chances of getting caught are small. Very small.

The latter path is littered with defendants who are either innocent or not as guilty as the government would have it, but rarely will you see the bodies. The less-than-honest-prosecutor knows this, and is emboldened by it. It’s an incentive to cheat the system, that the risk of being found out is so slim.

But there is another incentive as well. Forget about what happened to the prosecutors in the Ted Stevens case. Make no mistake, if the same thing happened to Joe Smith, there would not be two reports consisting of more than a thousand pages. There wouldn’t be one report consisting of a dozen pages. It would never be subject to real scrutiny.

The worst that would come of it is that the case would be dismissed, meaning the defendant doesn’t get convicted. That means, what would have happened anyway, happens. No harm, no foul. On the upside, a person whom the government thinks is a bad guy gets convicted because the government cheated the system. On the downside, the person gets what he should have gotten in the first place.

Where’s the punishment?

Not only do the prosecutors not receive punishment in some slightly proportionate way that anyone not in the employ of the Department of Justice would be punished, but at the absolute worst, a slap on the wrist and a wag of the finger. More importantly, the incentive system that moves the ill-motivated prosecutor to do wrong remains intact, so that prosecutors will continue to be emboldened to be dishonest and flout their duties under the law.

Dirty prosecutors must be punished, just like dirty cops and dirty judges. But even then, the system won’t block the road to perdition until the incentive system is changed so that it discourages the dirty prosecutor and encourages the virtues the Department of Justice claims to possess. Until then, it’s all a bunch of crap buried deep in many hundreds of pages of reports and even more bodies littering the path.

An Unappealing Waiver (Update x 2)

It’s hard to remember the first time it was in there, hidden within the boilerplate rhetoric of a federal plea offer, but the feeling was unforgettable. This stunk. As a part of a plea deal in federal court, the defendant was required to waive his right to appeal, with the exception of a sentence in excess of that anticipated by the deal. In other words, if you get the time you bargained for, the case was done.

On its surface, it seems like a fair trade. A defendant who cuts a deal to get a ten year sentence when he faced 20 after trial makes his choice and, in return, the government gets finality and frees up its resources to make other people’s lives miserable. But such a superficial understanding of federal plea deals leaves some ugly problems on the table.

First, the motivation for the deal is avoidance of outrageously draconian sentences under the United States Sentencing Guidelines, Just because the Guidelines provide for 367 months for jaywalking doesn’t make such a sentence reasonable. But the defendant, perhaps saddled with strong evidence against him and no defense, or a judge whose history shows he never met a Guideline sentence he didn’t love, has limited options. Go to trial. Lose. Get sentenced to forever and roll the dice on appeal? Sounds like a plan, right?

So when the government suggests it might consider a lower sentence (not an offer, of course, but rather a hint of a disposition which, if accepted, is technically characterized as the defendant’s idea rather than the government’s, the defendant has a choice. While there are negotiations that might make the deal more palatable, it;s usually still within the government’s paradigm of severity. The defendant can always turn it down and face oblivion. Or suck it up and take a deal rammed down his throat, reflecting an AUSA’s vision of fairness.

In the District of Colorado, Senior Judge John Kane has yet again broken ranks with the routine and said “no.” Not to the numbers, but to the inclusion of the waiver of appeal of the sentence, even within the numbers, for reasonableness. In other words, he would not accept the government’s determination of reasonableness to the exclusion of an appellate court’s review, a radical act.

From the Denver Post :

When Timothy Vanderwerff, who is accused of possessing child pornography, went to the federal courthouse in Denver this year to plead guilty to the crime, the deal he struck with prosecutors looked like many others.
Vanderwerff, who faces up to 20 years in prison for the most serious of the three charges against him, would plead guilty to one of those charges and face no more than 10 years in prison. He could receive as little as probation, though Vanderwerff agreed in the deal not to ask for a sentence of less than five years. Lastly, Vanderwerff agreed to waive his right to appeal, so long as the judge didn’t sentence him to more than the negotiated range.
It was that final detail that gave Senior U.S. District Judge John Kane pause. Writing in an unusually candid order rejecting the plea deal — a rare occurrence itself — Kane said such waivers can hurt the justice system. “Indiscriminate acceptance of appellate waivers undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions,” Kane wrote.

Before anyone applauds Judge Kane’s bold stance, consider the consequences. It does not mean that the defendant gets the rest of the deal without the waiver of appeal. It does not mean the government must now be more reasonable in its dealings. There is no duty to off a plea bargain, and the government can simply pull the deal off the table and tell the defendant to plead to the indictment or go to trial.

In a plea to the indictment, the defendant may get a two level adjustment for acceptance of responsibility, plus an additional one level adjustment for a timely plea. But even with a downward adjustment of three levels, he faces everything the government can throw against the wall to see what sticks. He can challenge it at a Fatico hearing, but then the same old problems with challenging evidence (as in the defendant testifying, having his 404(b), his prior bad acts, thrown in his face and getting into a pissing match with a dozen federal agents) come into play.

So rather than enter into a plea with some level of certainty as to what will happen, a defendant is left to make a decision with a huge hole in his future and the potential of being sentenced to life plus acne instead of life plus cancer. He just doesn’t know, yet he’s supposed to make a decision or go full monty to trial.

In a brief urging Kane to accept the deal, prosecutors wrote that the 10th Circuit Court of Appeals has found appellate waivers acceptable. Prosecutors say they are legitimate parts of the bargaining process.
Vanderwerff’s attorney also urged Kane to accept the deal. “Both sides benefit from it,” Assistant Federal Public Defender Edward Harris wrote.
Kane, though, viewed the waiver dimly. “[S]acrificing constitutional rights at the altar of efficiency,” he wrote, “is of dubious legality.”

It’s hard to quibble with Judge Kane’s point. But it doesn’t offer a solution to the defendant’s dilemma. Had the practice of requiring an appeal waiver been held unconstitutional, and the government precluded from including it in plea agreements, the problem would be solved. But it didn’t, and the government loves them. Most courts likely love them as well, removing a huge number of appeals from their docket that had little chance of going anywhere. You might be surprised to learn that most federal courts prefer fewer cases to more. Go figure.

So while Judge Kane’s concern about the legality of government imposed appeal waivers may be well-founded, it leaves the defendant in an untenable position. As much as every criminal defendant becomes an overnight aficionado of conceptual constitutional rights, they are similarly a huge fan of shorter rather longer sentences. Something has got to give, and as if usually the case, it’s likely to be bad for the defendant.

Update: Judge Kane was kind enough to send over a copy of his opinion in United States v. Vanderwerff, together with a companion opinion relating to “fast track” dispositions in illegal re-entry cases, in United States v. Villanueva-Calderon. Yet again, I pine for the fact that John Kane’s concerns aren’t universally shared by the bench.

The pervasive waiver of individual rights has fundamentally altered the function of the courts. The act of judging, once central to the determination of guilt or innocence, has been shunted to the margins. A defendant’s “guilt” is, more often than not, preordained by the grand jury’s indictment. To the extent judges actually participate in the criminal process, the push is to relegate us to approving or disapproving proposed plea bargains and, unless the plea contains a negotiated sentence, determining an appropriate sentence.
A rational defendant, even if innocent, may plead guilty to a lesser offense in order to minimize the risk of prosecution. Each plea bargain, therefore, and its concomitant prioritization of efficiency at the expense of the individual exercise of constitutional rights or the exercise of judicial responsibility, requires close scrutiny.
In the wake of the Supreme Court’s holding that the U.S. Sentencing Guidelines are merely advisory, not mandatory, see United States v. Booker, 543 U.S. 220, 247 (2005), no circuit court has revisited the enforceability of appellate waivers. Sentencing, post-Booker, requires a trial court to consider context and to apply criteria rather than perform a mechanical or clerical entry of a matrixed judgment. See United States v. Calderon-Villaneuva, 1:12-cr-235, Order Denying Unopposed Motion to Enter into Plea Agreement Containing an Appeal Waiver (doc. 14) (D. Colo. June 28, 2012). Ethical and moral values inevitably infuse the decision making process, but they must be justified by being drawn from governing texts in statutes and judicial opinions and established principles of fairness generally accepted by the community affected by the criminal conduct, i.e.,the fundamental values widely accepted by society and identifiable as such.
The responsibility of appellate review is to decide how well the sentencing judge has established the sentence within this described discipline. That is fundamentally dissimilar to the pre-Booker function of determining whether an arithmetic calculation has been executed correctly. Rather, reviewing sentences under an abuse of discretion standard is a complex inquiry meant to assure that the judicial administration of justice is relevant to the values and expectations of society.

Because of this, Judge Kane held that appeal waivers can only be permitted when the case-specific facts warrant. The key to appreciating where he was going doesn’t end with the rejection of the plea agreement for failure to provide an adequate justification for the appeal waiver, but with the Parsimony Clause, 18 U.S.C. §3553:

The parties also argue that the dismissal of charges 1 and 3 will result in a statutory sentencing range that better accommodates the interests of justice and the strictures of 18 U.S.C. § 3553. If found guilty of all charges, Mr. Vanderwerff would face a statutory sentencing range of five to twenty years of incarceration. This is clearly what Congress intended, yet his proposed plea bargain would result in a statutory sentencing range of probation to ten years. Although I could sentence Mr. Vanderwerff to any sentence within that range, as part of his proposed plea bargain Mr. Vanderwerff agrees not to actively seek a sentence of less than five years – the statutory minimum he would face if convicted of all charges. In effect, the parties seek to limit Mr. Vanderwerff’s sentence to a range of five to ten years of incarceration.
Although these sentencing consequences may have induced Mr. Vanderwerff to accept the government’s plea bargain, they do not justify including an appellate waiver. The interests of justice as I perceive them are best served by permitting the calm and deliberate review by the Court of Appeals of my decision and how it conforms to the requirements of 18 U.S.C. § 3553.

While the message here may be less clear than must defense lawyers would prefer, my take is that Judge Kane is telling the defendant that his solace isn’t in the plea agreement with the waiver of appeal, but rather the parsimony clause. In other words, he doesn’t need the prosecution’s approval to achieve a fair sentence in a post-Booker world, and the defendant doesn’t need to forego appellate review to get there.

From the court’s perspective, since the decisions approving appeal waivers were pre-Booker, and afterward the nature of review changed from abuse of discretion to reasonableness, the prosecution should not be allowed to unilateral eliminate the possibility of review of sentences for reasonableness by fiat, the length of imprisonment.

Yet that’s not the end of the inquiry. Knowing Judge Kane, his prior decisions and how they reflect on his views toward the Guidelines and sentencing, one might take comfort in the Parsimony Clause in his hands. That cannot be said for all judge. To go a step further, there are a great many judges who either adore the Guidelines, are less than empathetic toward defendants or are just not inclined to concern themselves with §3553 at all. Rather than find the Parsimony Clause in their hands, you’re more likely to find the executioner’s ax. And betting on reasonableness review at the Circuit may not be worth the risk.

Update 2: And the New York Times chimes in.

Some standard parts of waivers are outrageous, keeping defendants from appealing even if they become convinced that they received inadequate counsel to accept a defective plea agreement where the sentence was not lighter or where the prosecutor wrongly withheld evidence. Any defense lawyer or prosecutor who asks a defendant to sign a waiver ruling out appeals on those grounds is protecting himself.
An important element of justice is missing even when the defendant and the government believe a plea bargain is fair and when an appeal waiver is narrow so the defendant can appeal about certain specified issues. Congress gave appeals courts the power to review federal sentences to ensure the government applies the law reasonably and consistently. Without an appeals court’s policing, the odds go up that prosecutors will do neither. Our system of pleas then looks more like a system of railroading.

All true, but until the appellate courts reject waivers per se, the only other option is trial, with the potential tax to be paid.

What Bill Marler Did

Before we get to what Bill Marler did, let’s dispense with the haters.

Point: He must have made a bundle off the case, an obscene amount of money, so it was no big deal.

So what? If he made a bundle, it’s because he earned a bundle, and in this nation, you are allowed to eat what you catch. We are a capitalist society and we do not frown upon profit. In fact, it’s no crime to take your profit and put it in your pocket, buy a Ferrari, or just lie naked in a bath tub filled with greenbacks. Welcome to America. But Bill chose not to do so.

Point: It’s great advertising, and this will come back to him in spades.

So what? Should it turn out that others think well of Bill for what he’s done, and that translates into more business and more money, is that somehow a reason to do otherwise? That our acts of kindness or good behavior or generosity happens to have the collateral benefit of making others appreciate us, it by no means diminishes the act itself.

And what did Bill Marler do that would give rise to such resentment? He did good, that’s what. From Food Safety News :

When Nevada’s Green Valley High School held its winter sports award banquet last week, Seattle-based food safety law firm Marler Clark was there to announce a donation of $100,000 to the Henderson-based school.

The donation was made in honor of Green Valley’s former teaching assistant, E. coli victim Linda Rivera, and her family.

Marler Clark managing partner Bill Marler, who represents Rivera, said the donation to the school will provide science scholarships and help fund the wrestling program and special education.

“I am extremely proud to be part of such an event and, even more so, honored to work with a family as courageous as the Riveras,” said Marler. “Linda’s battle with E. coli has certainly been one of the most devastating I’ve ever witnessed in my nearly 20 years of foodborne illness litigation and I know the Riveras are simply overjoyed to see something positive come from this experience.”

There is no reason in the world that Bill and his firm couldn’t have taken this $100 grand and plowed it into SEO, even a cool TV commercial with some unctuous actor looking doe-eyed into the camera and asking, “did your broccoli make you puke?” If this was about marketing and advertising, there would be no shortage of people claiming to be “professionals” who would have butchered the mother-tongue to prove how badly they wanted it.

But Bill chose instead to donate it to his client’s school, the place where people cared about her, where her children were comforted and where a small community stood behind his client in her time of need. What a terrible thing to do, help a family, a school and a community. Such a Machiavellian ploy.

Outside the world of foodborne illness litigation and a small town in Nevada, few will know of Bill’s donation. It’s not like that Facebook kid threw pocket change at Newark, New Jersey. He’s filthy rich. Bill Marler is just a working lawyer. You should know, however, about this.

Want to let your community know you exist? You could send a check to Bangalore for misspelled SEO juice, or some fast-talking snake oil salesman who will teach you how to become a twitter guru. If you really want to all in, get the full team, from graphic artist for your critically acclaimed logo which can then be plastered on informercials night after night. Is there a niche practice for the sleep-deprived?

Or you can use whatever money you would otherwise piss away on nonsense for the good of someone else. Fund a scholarship. Or a soup kitchen. There are no shortage of opportunities in every community to help. And if you happen to also get some gain for yourself out of it, whatever.

People have plenty of bad things to say about lawyers, most of them well-earned. Some may feel compelled to project their own evil thoughts onto Bill Marler. The point is that regardless of whether there was any thought of gain from an act of generosity in no way makes the gift of Marler Clark less beneficial to that school, to those children and to that community.

Think what you want. Bill Marler did good, and he deserves every bit of recognition he gets for this act of generosity. And if you’re jealous of the kind words, do something good yourself.

H/T Kevin O’Keefe

Guilding the Lily

At Library of Law and Liberty, three men I greatly admire have engaged in discussion of where the legal profession had been and where it’s heading. Jim Chen, Walter Olson and Brian Tamanaha address the lawyers’ guild. While the thrust of their debate focuses on legal education, Jim takes a path that first denies the existence of the Golden Age of Lawyers, with which Brian concurs.

I dissent.

Jim writes:

“Golden ages” figure prominently in history and in myth. Golden ages invariably take place in the past. Their very existence insults the present. To invoke the term golden age implicitly speaks ill of today, as though those misfortunate enough to be alive today lack the strength and the resolve to restore the virtues of their forerunners. The contemporary legal profession languishes in the memory of a golden age. Some time before the global economy collapsed, law in America was a profession. Success in law school translated directly into career success, whether in private practice, public service, or academia.

All that glitters is not gold. Hindsight warps our historical perspective. There never has been a golden age in the American legal profession. To the extent that lawyers and law schools ever enjoyed more professional room for error, that comfort arose from the sheltered place of the legal profession as a publicly sanctioned guild. The putative golden age of American law was never anything but a gilded age — or, if you will, a guilded age.

This critique of false memory is largely generic; we are all aware of how time and distance alters our perception of the good old days, leaving us only with the pleasant idealized thoughts of bountiful days and a respectful and appreciative society. It is, indeed, the stuff of myths.

But that doesn’t mean that there was never a Golden Age. Call it a myth no more makes it so than calling it a Golden Age. And it would help if Golden Age was defined so that we could be assured we’re talking about the same thing.

I learned what it meant to be a lawyer at the knee of my great uncle, David Schackner (1911-1990). He was kind enough to let me “work” at his law firm in Newark, New Jersey, during my high school years. I put work in quotes because I contributed little of value, short of the occasional coffee run, but Uncle Dave let me sit close to him as he worked. At the time I didn’t appreciate how much of an annoyance I must have been, but still he suffered my presence so that I could learn what it meant to be a lawyer.

When I became a lawyer, no one was more proud of me than Uncle Dave. When time came for my admission to the bar of the United States Supreme Court, Uncle Dave moved my admission. My certificate bears his name, an honor for me.

Uncle Dave was old school, even then. He was the sort of lawyer to wear a tie and waistcoat while mowing the lawn, because that was the way lawyers should comport themselves. He was a lawyer, every day, all day long. He believed with every fibre of his being that being a lawyer meant he held a trust, a duty, toward others, his clients, the court, his adversaries, the public. The dignity of the profession and his personal integrity was at stake with his every utterance, his every stroke of the pen, his every representation and bit of advice.

This sounds unbearably Pollyanna-ish today. So impossible to achieve or maintain that it likely causes some to emit chuckles, if not spew their coffee on their computer screen. But then, the nation wasn’t awash with lawyers. And the lawyers out there were instilled with a belief that they were truly given a gift, and that to be less than appreciative was a disgrace.

it’s not that there weren’t lousy lawyers. Or lying lawyers. There were scoundrels. But most were true to their oath, and took enormous personal pride in the esteem they were held by others because of it. And they would not shed their dignity for a fee. Indeed, my Uncle Dave refused to increase his hourly fee above $200,* even as fees began to rise well beyond that level, because he believed no lawyer was worthy of such an amount and no client should be constrained to pay more than was reasonable for the value of the service rendered.

Yes, there was a benefit to lawyers. Provided they conducted themselves with competence, honor and integrity, they were largely assured of a comfortable income. Their numbers were smaller, which served to make it unnecessary to fight for business or market their existence. On the other hand, there was far less business needed. We weren’t as litigious a society. There were far fewer criminal laws. Lawyers were more inclined to talk people out of suing than into it.

There were problems then, often couched in the same terms as problems now, but they weren’t the same. Older lawyers sniped at younger lawyers over minutiae in comparison to the problems being faced today. Wearing too loud a tie. Driving too flashy a car. Refusing to read the advance sheets daily, as if the synopsis in the Law Journal was sufficient. Slackers. Of course, it hardly seemed trivial at the time, and thus lawyers railed about their slovenly next generation.

So if this is the Golden Age Jim is talking about, when lawyers were honorable because that’s who they wanted to be, when they conducted themselves with dignity and responsibility toward society because they believed that to be the sine qua non of their position, when they were assured of a lifestyle befitting a well-educated and well-respected member of society, then it very much existed.

I saw it. I do not see it anymore.

The debate over how to “fix” law school should continue to rage, both within the Academy and without. But its validity requires that we no more engage in false denial about the past than we do about the present. It wasn’t easy to be a lawyer way back when, as the obligations of the profession weighed heavy on those who accepted the public trust. But if they did, they would drive a Cadillac. A black one, of course, but a Cadillac.

* In 1975 dollars, adjusted to $854.33 in 2012 dollars.

Because the Internet Can’t Be Happy

One of the aspects of writing this blawg that I most appreciate is being challenged, taken to task, by people I respect when I’ve written something they think is wrong. It may feel nice to be surrounded by supportive readers who agree with me, but it’s like peeing on yourself in a blue serge suit. It feels warm for a bit and nobody notices what you’ve done.

Others see it differently. No fewer than three posts came to my attention yesterday that drove the point home. At a blog called Call Me Bookish, twitted by Antonin Pribetic, a review by Kelly (who I’ve deliberately sought not to know any better than her name) tells of a friend from her tribe who took issue with her review of something involving Abraham Lincoln and vampires (which I’ve deliberately chosen not to read, both because it sounds awful and I don’t want to be prejudiced by content). Kelly writes about her “first internet attack”:

My WIP [I believe this means “work in progress] is a work of fiction, but it’s what I imagine a young drunk driver’s life to be like in the years following a similar accident. Due to the emotional toll this takes on me, this work is far from finished. I haven’t released excerpts of it yet because I’m not ready for any sort of backlash. I’m not ready for writing that recounts such a sad time in my life to be ripped apart.
Tonight I realized that I have made the right decision, because I was hurt when a “Blogger Friend” (we’re in the same tribe on Triberr, friends on Twitter, etc.) attacked my most recent review in a blog post. This person clearly misunderstood what I was trying to communicate in this review and if he gave me 24 hours, I would have responded to his initial comment in order to explain where I was coming from. Nope. He decided to write a post that bashed both me and my words.
Final word: There’s a difference between respectfully disagreeing with what someone says and tearing their work (and them) apart. What should I do now?

We don’t get to dictate to others what they should think about us or how they should express it. Ironically, Kelly has put herself on the pedestal of critic, but when the tables are turned, collapses in a fit of angst. It seems that kelly was most disturbed because the “attack” came from a friend. The aspect of friendship I most respect is honesty. Other prefer blind support, so no one ever tells them their fly is down or their butt looks fat in that dress.

When you put your thoughts or feelings, as the case may be, on the internet, you may be read by people who don’t love you or agree with you. You have no right to demand they do. You have no right to demand that they react in a way that pleases you. If your feelings are easily hurt, or if criticism makes you cry, then you should not take the risk. But once you’ve done so, your whining is disingenuous. You don’t have to endure criticism, but then you can’t post on the internet.

A delivery company calling itself Yodel, after having been raked over the coals under the names of Home Delivery Network and HDNL, has hired the Biglaw firm of Weil, Gotshal & Manges to threaten to sue twitter for voluminous twits by customers about how awful its service is.

The list of tweets that Yodel provided to Twitter typically include those hitting out its failure to deliver on time, lost parcels and advice to others not to use the deliver service. Many are disparaging while others are humorous but don’t strike me as particular libellous.

Yodel appears to be using heavy handed legal tactics in an attempt to silence dozens of online critics – hardly a step that is likely to endear it to customers or a step in the right direction when it comes to customers service.

Weil, Gotshal & Manges claimed that it has been proven that the existence of these Twitter accounts “”over a substantial period of time, that the existence of these pages serves as a platform for such defamatory statements to be made against our client”.

The cottage industry of internet marketers informs businesses everywhere that they must have an internet presence to survive. Left out of the sales pitch is how customer dissatisfaction can now be louder than business self-promotion. “What? They never told us about that!” This is but one example of what Ken at Popehat calls “censorious asshats” trying to shut down unpleasant noise on the internet. There are many others, and many others pending at this very moment.

It’s got be embarrassing for a law firm with a solid reputation like Weil, Gotshal, to make such silly and vapid claims as defamation by customer who tell the story of their nightmares with a company. It adds the additional layer of a law firm that apparently doesn’t know the definition of defamation, or one that will write anything for a buck, no matter how laughable. Either way, it diminishes the firm. It might diminish the business as well, but it appears that the business is doing that all on its own.

Before the internet, one dissatisfied customer could yell and curse the customer service representative in a boiler room in Manilla. Today, the dissatisfied customer locks arms with a thousand others, no longer lone voices in the woods but a choir of angels on the internet. And neither a horribly managed company nor a law firm willing to be stupid in public can stop it. As Babs could explain, there are few things that motivate people more than pissing them off.

And finally Donna Barstow debases the high art of political cartoons, whose beef combines the worst attributes of Kelly and Yodel.

Aside: I am well aware that there are no shortage of examples that could have been included in this post, but have chosen these three. You may think that others would have been better, but these are my choices. This is not your opportunity to denounce whoever you think should have been included, or even raised your personal target for most evil internet whiner. I’ve left out my own pet peeve, KitchenAid. If I can resist using this post for personal vendettas, so can you.

From Popehat’s survey of Barstow’s complaints:

Barstow is a blogger (sort of), an author (technically), and, to my taste, an appallingly awful political cartoonist, gripped by some terrible compulsion to explain her cartoons in a caption when she posts them. Given her level of nuance, this is roughly akin to providing a listening guide to musak.

This time, Barstow has turned her attention on a less compliant target — the denizens of the website Something Awful. To be fair to her, it’s not like she lashed out at 4chan or something, but that seems to be her pure dumb luck. Barstow’s complaint is that Something Awful forum goons posted and criticized her cartoons in a forum thread about bad cartoons. She began to lash out at Something Awful writers on Twitter.

Barstow went on to accuse Something Awful of copyright violations and “defamation,” scorning the idea that posting her comics in a thread criticizing bad comics constituted fair use.

Barstow soon found herself the target of insults, abuse, and — she claims — tweeted or emailed obscene images. That’s obnoxious, juvenile, contemptible, and utterly predictable if you launch a broadside against a site like Something Awful.

Wrapping oneself in defensive legalese, using words that sound threatening even if inapplicable, is the weapon of choice of the internet whiner. There is such a thing as copyright violation and defamation, and it matters. It’s just not left to every unhappy camper to redefine them to serve thwart their critics. As with Kelly, I’ve chosen not to look at Barstow’s political cartoons or the infantile reactions of her enemies. It’s best not to let the content blind one to the issue at hand, that the internet provides no one, absolutely no one, with an assurance of support and kindness.

By making the decision to put your thoughts, feelings and beliefs on the internet, you invite criticism. You invite uncontrolled criticism. You invite every friend to disagree. You invite people you don’t know to call you horrible names. You invite people smarter than you and dumber than you to levy fair and unfair attacks on your character, lineage and attire.

And in contrast to the myriad voices who tell us that this is a horrible state, that it should be a crime to hurt other people’s feelings by saying mean things about them, the internet will not be stopped. It does not forgive. It does not forget. Before you think your words need to be read by the world, consider whether you are tough enough to weather the storm.

Every time I hit the little button that makes something appear on the internet, I authorize everyone in the world to cast stones. You do the same. Get over it.

Zombie Law Review Apocalypse (Update)

At the Atlantic, Walter Olson of Overlawyered fame calls for the death of the law review.

The circulation of law reviews has been plummeting for a generation; the most famous and widely circulated of them, the Harvard Law Review (HLR), has seen its subscriber base dwindle from 10,895 in 1963-64 to a mere 1,896 in 2010-11.

No law school wants to give up and go web-only because it seems unprestigious…

The wider question is whether the law review model of content–with its long lead time to publication, editing by students, and format that’s resistant to after-publication editing–yields enough scholarly gems to deserve surviving in its present form even online.

We have some inkling what John Roberts thinks of the matter. The chief justice told judges last year: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.”

Just a couple days ago, a lawprof sent me a link to her law review article, as it was on an issue about which I’ve written much and have great interest. I read it. Well, truthfully, I read part of it, skimmed other parts and, upon reaching the point of boredom beyond which I feared permanent brain damage, I put it down. I don’t blame anyone, least of all the lawprof author. It’s the nature of a law review article, to take a subject of interest and make it as tedious, drawn out and thick as possible. Did I mention footnotes?

The decision was handed down on the 27th day of May¹ rather than the anticipated date of the 29th.

¹ Using the Gregorian calendar, in contrast to the pre-Julian or Roman calendar. Due Process and the Rejection of Pre-Julian Dating, Richard Head, 28 Yale L.J. 1198 (1947). Others dispute the merit of the Gregorian calendar and contend that Pre-Julian dating should be used, whether in parallel or by itself. See, e.g, United States v. Sparticus, 138 F.2d 490 (3d Cir. 1984).

For a practicing lawyer, I probably read more law review articles than most. At least parts of them. Not all of them are ridiculously irrelevant, grasping for something remotely resembling purpose in a journal of a million murdered words. It’s awful. It’s painful. Not because these articles don’t occasional raise ideas or argument of merit, though it’s rare, but because even the best and most thoughtful bog down in the brutally heavy compulsion to mask worthwhile thoughts in thousand of worthless words.

And so, I disagree with Walter. The law review should not die. It’s already dead. It’s been dead for a while, and merely wanders about like zombies eating the brains of those who are caught in its clumsy clutches.

What we do know is that the page volume of law reviews has proliferated beyond reason with no corresponding rise in compelling content. Even low-ranked law schools often publish six or eight of them. There’s no secret as to why: students crave the credential of having worked on law review, while faculty crave a high likelihood of being published. Legal educator Harold Havighurst nailed it half a century ago: “Whereas most periodicals are published primarily in order that they may be read, the law reviews are published primarily in order that they may be written.”

One way or another, some scholarly apparatus will be found to publish meritorious longer articles that advance the mission of serious research into the law. But when it comes to discussion of timely controversies, slash-and-thrust debates, and other forms of writing that people actually go out of their way to read, there’s no doubt where talented legal academics are headed: to blogs and other shorter-form online publications.

There are alternatives, as Wally correctly notes. Blawgs, such as Volokh Conspiracy, played a significant role in shaping the arguments against the individual mandate. While they may not have carried the day, their relevance can’t be denied. And there were two significant advantages: the posts were readable and read.

It’s not that law reviews, run by students who fancy themselves so brilliant as to entitle them to pass judgment on the work of law professors, have no place in legal society.

They provide resume fodder for students who want to guarantee that they will never be expected to try a case in their careers.
They provide space for people who aspire to being deemed sufficiently scholarly to commit murder of the language with impunity.
They can level a table leg.

Defenders of the faith clap their hands in glee whenever a law review article is cited in an opinion. Sadly, it doesn’t mean what they think it means. Judges don’t cite to law reviews because they found them persuasive, or even mildly interesting. In fact, it’s doubtful that judges cite to them at all, since it’s part of the grunt work fed to their law clerks, who just happen to be the former law review editors, on whose shoulders it falls to keep the zombies walking.

Rather, whenever judges come up with cockamamie ideas that cry out for support from any source possible, they send the grunts off to the library in the usually safe belief that somewhere, amidst the millions and millions of murdered words, will be a law review article that is so outlandish and ridiculous that it backs them up.

Will the physical books persist as long as there are trees to be cut and mother’s to buy proof of their darling’s genius? Of course, but that doesn’t mean they’re alive. Blawgs have already proven that ideas, if worthwhile, have an outlet for their existence, and can fulfill a function by bearing the basic virtues of brevity, readability and substantive merit. As for law reviews, they’re just dead weight.

And if law reviews are zombies, the blue book is a vampire, existing only to suck the life out of you.

Update: I am deeply ashamed to admit this, but as Temple Lawprof Dave Hoffman gleefully informed me, I a disgrace to trench lawyers everywhere. There is a new law review article available on SSRN by Arizona State lawprof Adam Chodorow entitled Death and Taxes and Zombies.

The U.S. stands on the precipice of a financial disaster, and Congress has done nothing but bicker. Of course, I refer to the coming day when the undead walk the earth, feasting on the living. A zombie apocalypse will create an urgent need for significant government revenues to protect the living, while at the same time rendering a large portion of the taxpaying public dead or undead. The government’s failure to anticipate or plan for this eventuality could cripple its ability to respond effectively, putting us all at risk.

Now this is scholarship. And Hoffman is just laughing his butt off at me. I’m so ashamed.

Cato Amicus: Search Means Search

The Supreme Court will soon consider whether bringing a drug dog to the front door of a residence to create a basis to claim probable cause in order to obtain a search warrant. The case, Florida v. Jardines, challenges the decision of a divided Florida Supreme Court’s rejection of the authority to bring a dog to the door of a residence without cause to begin with, the act itself constituting a search. The question is whether the Supreme will apply Illinois v. Caballes, holding that a dog sniff of a car is not a search, to a home.

While the case is chock full of interesting and important 4th Amendment issues, one of the more interesting and provocative positions taken comes from Jim Harper and Ilya Shapiro, who filed an Amicus brief on behalf of the Cato Institute. Their argument is summed up:

This case offers the Court an opportunity to place the Fourth Amendment on solid jurisprudential footings. Current Fourth Amendment doctrine has failed to produce rules that are administrable and that protect privacy over time. In particular, this Court’s use of proxies such as having a “reasonable expectation of privacy” to locate Fourth Amendment interests has failed to produce a workable rule, and it has eroded privacy. The Caballes Court used a corollary from reasonable expectations” analysis that threatens to erode privacy protections even further.

Reasoning backward from “expectations” requires courts to engage in impossible surmise about privacy,neglecting the Fourth Amendment’s protection of a constitutional right. This Court should return to plain meanings of Fourth Amendment terms such as “search,” and to precedents that spring from the Fourth Amendment’s terms.

A “search” occurs when government agents seek out that which is otherwise concealed from view, the opposite condition from what pertains when something is in “plain view.” People maintain “privacy” by keeping things out of others’ view, exercising control over personal information using physics and law.This Court’s cases give Fourth Amendment backing to physical and legal arrangements that control information appurtenant to persons, houses, papers, and effects. The Court in this case should make that explicit while finding that government agents’ use of a drug dog to sniff at Joelis Jardines’s front door was a Fourth Amendment search that required probable cause and a warrant.

To put it another way, the argument is to put an end to the Katz reasonable expectation of privacy that has either served well or disastrously, as the case may be. In its place, it calls for a return to a textualist view of the Fourth Amendment, where words like “search” are given their “plain meaning.”

The immediate problem, as was earlier pointed out by Orin Kerr in his discussion of Jardines, is that the law has long taken no issue with police using such sophisticated sense-enhancing devices as a flashlight to see what otherwise couldn’t be seen. If something is concealed under the veil of darkness, is it a search to shine a light on it? Using the plain meaning approach, it appears that it would be, and therefore a warrant would be required for police to use a flashlight to see what they otherwise could not see.

On the other hand, the reasonable expectation of privacy test has not only failed to maintain much privacy, but has proven particularly unworkable as applied to privacy in the digital age, where the third party doctrine renders pretty much everything outside the scope of the Fourth Amendment. It didn’t necessarily have to go that way, but for the court’s adoption of the reasonable expectation of computer geeks who understand and appreciate that everything sent over the internet ends up on somebody’s server somewhere. Apparently, Mom and Pop Kettle’s expectation that their emails aren’t being read in Bangalore isn’t the bar for reasonableness in Washington.

This isn’t the first call to do away with the Katz test, Lawprof Dan Solove argued that Katz was dead, and instead favored Fourth Amendment Pragmatism in its place. Whether this advances the cause is hard to say, since I’ve never understood what Dan was talking about.

Putting aside the issues surrounding the incredibly flawed doggie myth per se, the question of whether walking the dog to your front door is a search presents enormously vexing problems. There doesn’t seem to be a doctrine that applies well to the wide variety of ploys used to circumvent the warrant requirement, both in the physical world or the digital world.

Even if we were to develop a completely separate rule for virtual application (despite those who believe that we ought to apply developed law, meaning the million exceptions that swallow the rule, to the virtual world by analogy so that the party who comes up with the cutest analogy wins the search issue), the reasonable expectation of privacy test has led us to the plethora of exceptions that have swallowed up the warrant clause. In other words, as long as the physical world exists, it has to be dealt with, and the Cato amicus argues that the time has come to give up trying to craft an extra-constitutional test and simply return to the text of the Fourth Amendment.

In a way, the Cato argument seems unbearably simplistic. Could it really be that simple that the Constitution protects that which is “otherwise concealed from view”? It would certainly put a crimp in law enforcement’s authority to search for evidence. Would that be so bad?

Technology is the New Black

At the Legal Whiteboard, Indiana Lawprof Bill Henderson has apparently just discovered the Ignite concept, where a person gets six minutes and 20 slides that move forward every 20 second whether he wants them to or not. Bill thinks it’s a great idea, as do I. The worst that can happen is you lose six minutes of your life.

But the exemplar offered comes from a London’s Law Tech Boot Camp, described as

a BarCamp-style community UnConference for new media and technology enthusiasts and legal professionals including bloggers, twitters, legal-technology lawyers, social networkers, and those curious about new media and the law.

If this was nothing more than another singalong amongst the iPhones will change the world crowd, it wouldn’t be worth even six minutes. But this “UnConference” included a group of law students from MIchigan State Law, captured the interest of Henderson from Indiana Law, and included Michael Bossone.

Who?

Michael Bossone

Special Advisor to the Dean, University of Miami School of Law

Michael Bossone is the co-creator and a founding member of LawWithoutWalls. His career has been dedicated to building and sustaining human connection and institutional culture. It is what first drew him to LawWithoutWalls and what motivates the time, energy, and commitment he joyfully gives to this innovative project. He is currently Special Advisor to Dean Patricia White at the University of Miami School of Law, and previously served as Assistant Dean during his nine years at the Sandra Day O’Connor College of Law at Arizona State University.

Bossone gave an Ignite presentation that Henderson (who was there) calls “awesome.”

For those of you in need of an incentive, here’s a drinking game: count the number of logical fallacies this former lawprof/current special advisor can get into six minutes. On the other hand, for those young lawyers inclined toward confirmation bias and in need of validation, this is a wet dream.

That the typical suspects blindly tout technology is old news, What makes this significantly more disturbing is that, coming from someone imbued with attributed credibility from the Academy, not to mention endorsed as “awesome” some another within the Academy, has the power to confirm the most ignorant, dangerous and deeply held bias of every unemployed wanker who desperately cries,

“but mommy, I know I have no job and no prospects, and can’t afford to spit no less pay for a data plan, but I neeeeeed shiny gadgets if I want to be a lawyer. My lawprofs said so.”

It’s certainly true that lawyers are slow to adopt new technologies. “What are we do damn afraid of?” A facile question from someone whose strawman argument will not suffer from a response. We’re afraid of destroying lives. We’re afraid of finding out we chose Beta instead of VHS, We’re afraid of the third party doctrine that allows the government to access confidences through its required backdoors or the simple good of some kid who forget to lock up at night. We’re afraid of violating the trust of our clients that we won’t lose focus whenever something shiny captures our attention.

We are indeed slow to jump onto whatever the latest and greatest new thing may be. “Afraid to try. Afraid to take a chance. Afraid to fail?”

We are free to fail, and fail miserably, when it’s only our own butt on the line. Lawyers have the same right as anyone else to makes lousy choices, provided we alone suffer the consequences. But when our choices mean someone else suffers, then we do not have the right to take a chance.

“We’re satisfied being dinosaurs in the digital age, technological neanderthals, Fred Flinstones in a world of Elroy Jetsons.”

If we “push the button, click on the link,” and get a virus, or delete the brief, or miss the critical decision, the court may not find our allusions to cartoon characters as captivating as Bossone does. Indeed, most judges will hold us to a somewhat higher standard than either Fred Flintstone or Elroy Jetson (oddly the young son, rather than George Jetson, Elroy’s father).

The dichotomy, of course, is nonsense. It’s not technology or quills. Even old guys like me (as is readily apparent as you’re reading this on a computer screen) have embraced much of technology, after determining that it’s beneficial, that it doesn’t put clients at risk, that it’s cost-effective and that we won’t have to explain to a human being a year from now that we’re terribly sorry that they will be spending the next decade in prison because we thought our emails were secure and our cellphone conversations couldn’t be readily intercepted by anyone with a national security letter (or maybe just a scared employee of a cell service).

But us dinosaurs don’t particularly care what special advisors to the dean think. We view empty rhetoric and laugh. We know that correlation doesn’t prove causation. We aren’t inclined to stand on line to be the first with the newest, coolest shiny gadget, and so we aren’t seeking validation of our bias. Crap like this doesn’t play well to lawyers who have been around long enough to see new ideas come and go, to see the latest and greatest today become the massive failures of yesterday.

Law students and young lawyers, on the other hand, are susceptible to such ploys. They don’t believe things can fail because they’ve never experienced failures. They don’t believe things can fail because they don’t want to believe. Isn’t that right, Siri?

To some lawprofs, this is the nexus of law and fashion design, where they pronounce that hemlines will be above the knees this year, and that technology is the new black. And the young lawyers believe them, running out to the glass caves with their heads in the clouds.

“A more profound impact.” Maybe, but the adoration of change bears no inherent connection to improvement. What distinguishes lawyers is the ability to resist fashion trends and focus instead on those things that we know will benefit our clients without risking their lives.

“It was bullshit in ’96 and it’s bullshit now.” If this is the argument in favor teaching law students and young lawyers to ignore reason, throw caution to the wind and just push any button in front of them, then we have a looming disaster on our hands. “With lawyers, why is it always too slowly.” Because we have the capacity to think and the responsibility to put our clients first. This, apparently, is where lawyers differ from lawprofs.

Independence Day 2012, A Stroll

Though curation isn’t my thing, as I prefer the “value added” path of commentary and view it as a bit of a facile way to generate readers without much effort, my own stroll around the blawgosphere this morning leaves me with little to add to some of the more interesting things others have to offer. So rather than waste the space (and your time) with my thoughts, I bring those of others.

At Radley Balko’s Agitator, where Radley has turned over the keys to some very interesting folks while he recovers from the hair transplants, In a story by Ken White (who has been quite prolific and compelling lately) of his youth, remembers the day he was taken by a judge to the Veterans of Foreign Wars to fulfill part of a promise made decades earlier, upon which our Congress reneged after America enjoyed the benefit of a group of men who risked, and some lost, their lives in World War II.

There, in a dark and baroque room, we found eight elderly men. They were too infirm to stand. Three were on stretchers, several were in wheelchairs, two had oxygen tanks. One had an empty sleeve where his right arm had been. A few relatives, beaming, stood near each man. One by one, Judge Lew administered the naturalization oath to them â€” closely, sometimes touching their hands, speaking loudly so they could hear him, like a priest administering extreme unction. They smiled, grasped his hand, spoke the oath as loudly as they could with evident pride. Some wept. I may have as well. One said, not with anger but with the tone of a dream finally realized, “We’ve waited so long for this.”

And oh, how they had waited. These men, born Filipinos, answered America’s call in World War II and fought for us. President Franklin D. Roosevelt asked the men of the Philippines to fight, promising them United States citizenship and veterans benefits in return. 200,000 fought. Tens of thousands died. They weathered the brutal conditions under Japanese occupation, fought a valiant guerrilla war, and in some cases survived the Bataan death march.

They could have been angry, filled with frustration and hatred toward a nation that was happy to take their lives but refused to honor their promises. Instead, they thrilled at the fulfillment of a dream to become an American, even if only for their few remaining years.

The sentimentality of the story strikes home, that these men, that their families, finally received what they had been promised so many years before. But the deeper meaning of the story, how they were not filled with hatred toward a country that failed them, and instead, in the final years of their lives, appreciated becoming Americans. While some spew hatred toward America and pray for the day the revolution begins, these men, burned far more than most of us, wanted only to be able to die as Americans.

Another guest at Case de Balko is Maggie McNeill, who brings the rather curious perspective of a retired call girl and madam to the mix. Maggie offers her homage to our Founding Fathers via the journey of Gene Roddenberry’s U.S.S. Enterprise.

In the deeply-flawed episode “The Omega Glory”, descendants of early Earth colonists (or else the inhabitants of an impossibly-parallel world) fought a bacteriological war between Americans and Chinese which ended in both nations being hurled back into barbarism; the Yangs (Yankees) still have an American flag and a copy of the Constitution, but have forgotten the real meaning of the artifacts. They revere the flag as a totem and recite the “holy words” by rote; today’s epigram is the Yang leader’s rendition of the beginning of the Preamble to the Constitution (“We the People, in order to form a more perfect union…”) altered by centuries of repetition without meaning.

Naturally, Capt. Kirk sets them straight, because who doesn’t want the future of our beloved Constitution in lesser hands. Maggie then contrasts Star Trek’s Yangs with our own.

The situation presents a useful (if exaggerated) metaphor of modern America; though we have not descended to the barbarism of the Yangs, our law and traditions have drifted ever further from their philosophical and constitutional moorings. The Founding Fathers would not recognize the current legal code of this country, grounded as it is in religion and other dangerous superstitions and “-isms” inimical to the Enlightenment philosophy and thousand-year-old English common law tradition in which it was originally based.

This idealized vision of what “has become” of America is sadly common and pervasive. Our nation wasn’t quite the utopia many believe from their reading of the Constitution and the platitudes engraved on federal building lintels. Slavery was embraced, and blacks were only three fifths of a person for the convenience of those seeking power. Neither women nor the poor were considered more than chattel. Freedom of religion was sanctified, provided it stayed within Christian norms, and laws reflected a deeply embedded Puritan ethic. Many crimes were punished by death, and due process was decidedly haphazard as “justice” was meted out swiftly and, most of the time, carelessly.

Our Founding Fathers ran the gamut from dry good merchants to vast land owners, whose economic interests compelled them to pay poor street toughs like Crispus Attucks to do their dirty work. They were smart enough to couch their rhetoric in liberty and freedom, because they foresaw that “a decent return on equity” wouldn’t fit on license plates. And yet they created a document that remains the most remarkable in the history of the world.

The pendulum has swung between law and order many times since then. The message has soured, such as Lincoln’s suspension of habeas corpus during the Civil War, or the internment of Japanese-Americans during World War II. We’ve suffered Dred Scott, Plessy v. Ferguson and Korematsu. The USA Patriot Act, secret FISA warrants and rendition. And yet we’ve enjoyed Miranda and Gideon, even Brady if you have a good sense of humor.

No, it wasn’t always wonderful. We do not live in a paradise lost, but in a work in progress. The message isn’t that our Forefathers created Nirvana, but gave us the chance to turn a vast nation into one. The struggle to fulfill our promise never ends, and there will never be a time when our vigilance is no longer needed. But as Ken’s finally-minted Americans understood, it is worth fighting for America to fulfill its promise.

And finally, my good buddy Dan Hull offers a thousand words with one picture.

Happy Fourth of July.

An Honorable Title

You don’t have to go to school for it. There are no tests I’m aware of. In fact, you don’t have to be paid,as if there was anyone to pay you if you did. The title is Professional Agitator. As my young friends like to say, that’s badass. And the title has been bestowed by no less consequential an entity than the 30th Precinct of the New York City Police Department on Matthew Swaye and Christina Gonzalez.

How does one achieve such high honor? From DNAInfo :

HARLEM — The NYPD has created a “wanted” poster for a Harlem couple who film cops conducting stop-and-frisks and post the videos on YouTube — branding them “professional agitators” who portray cops in a bad light and listing their home address, DNAinfo.com New York has learned.

The flyer featured side-by-side mugshots of Matthew Swaye, 35, and his partner Christina Gonzalez, 25, and warned officers to be on guard against them.

“Be aware that above subjects are known professional agitators,” read the flyer, which bears the NYPD shield and a seal of the NYPD‘s Intelligence Division. It also gave the home address of the couple.

“Above subjects MO is that they video tape officers performing routine stops and post on YouTube,” the sign said. “Subjects purpose is to portray officers in a negative way and too [sic] deter officers from conducting there [sic] responsibilities.”

The flyer also listed the name and cellphone number of a Sgt. Nicholson in the 30th Precinct, and implored cops to “not feed into above subjects propaganda.”

This Harlem couple, angered and disgusted by New York police department’s stop and frisk policy as are so many others (Mayor Bloomberg, excepted), have been taping the cops tossing their targets and putting it on Youtube for all to see. One might suppose a cop would relish the opportunity to have his fine police work captured on video and displayed for all to see. Don’t they love the TV show COPS!? They’re always happy to pose for the camera when they get a new medal pinned to their chest.

Yet the “wanted poster” for Swaye and Gonzalez didn’t mention that the police wanted to throw them a party and thank them for their kind attention. Instead, it suggested they might be bank robbers or rapists; or worse still, “professional agitators.”

Ironically, the police claim is that these “subjects’ purpose” (don’t you love police jargon) “is to portray officers in a negative way.” No connection is made to the fact that they can only videotape officers doing what they do. If that turns out to portray the cops in a negative light, don’t blame the camera. Don’t blame the people holding the camera. Or does a cop do no wrong if there’s no pictures?

That the wanted poster was openly displayed at the Dirty 30 for all who came to a public hearing was curious. Was its purpose to intimidate Swaye and Gonzalez? Was if to shame them by making them appear to be criminals? Or was it to warn cops not to engage in unlawful and abusive conduct if the duo was around?

Ken from Popehat and the Agitator, and possibly more by the time you read this post, ponders its meaning:

I think Jacob Sullum is right in his post about this incident when he writes that the poster can be taken in two ways: the style and publication of the couples’ home address suggests intimidation, while some of the language suggests a warning to police to leave them alone rather than approach them in a manner that will look bad on video. But whatever the intended message, the unintended message about law enforcement’s entitled attitudes is clear. First, in the face of steadily advancing legal norms protecting citizens’ rights to record cops in the course of their duties, cops continue to do everything they can to portray such recording as dangerous, intrusive, inappropriate, and a signifier of bad citizenship. Second, cops view concern about constitutional rights as a signifier of bad intent and suspect behavior. Only an agitator would want to document, and challenge, the widespread temporary detention of young men of color in New York City.

No doubt his critique is accurate, addressing as it does the motivations of our public servants, New York’s Finest, to do their job without the burden of public scrutiny or accountability. But then, if it serves to make cops think twice about their actions, about whether somebody out there with a ubiquitous video camera is capturing (something they only wish they could do) their sausage-making for the rest of us to see, then the purpose is served.

Whether the police moderate their conduct, adhere to the law and respect the rights of citizens, because they chose to or because they fear public exposure, anything that raised fear of embarrassment and, in the rarest of circumstances, possible discipline is a great thing. Those inclined toward misconduct and abuse aren’t likely to change their view because they’ve watched too many reruns of the Andy Griffith show*, but for their own self-interest. Anything that makes their perspective more enlightened makes people safer and their rights more secure.

It may not be sufficient to end police abuse and misconduct, but every human being who survives a stroll down St. Nicholas Avenue unharmed is a victory. And so, awarding the title of professional agitators to Matthew Swaye and Christina Gonzalez is quite an honor. They deserve it.

* As both an homage to Andy Griffith on his passing, and a reminder of a better times, enjoy this video.

And don’t blame Opie. He was just reading his lines.