The Supreme Court of the United State of America held that detainees, say like those held in the lovely island paradise at Guantánamo Bay, Cuba, even if named Lakhdar Boumediene, could challenge their detention in an American court using the device of habeas corpus.  In a 5-4 decision, the Court refused to allow the government to suspend that right. It was a glorious day for the Constitution.

Yesterday, we learned that seven petitions for writs of certiorari were denied because not even four justices of that court thought them worthy.  The  Center for Constitutional Rights issued a press release:

June 11, 2012, New York – Today, in response to the U.S. Supreme Court’s denial of certiorari to the cases of seven Guantánamo detainees who had petitioned the Court for review of decisions by the Court of Appeals for the D.C. Circuit, Center for Constitutional Rights (CCR) Executive Director Vincent Warren issued the following statement:

The Center for Constitutional Rights is extremely disappointed in the Supreme Court’s denial of certiorari in the latest set of habeas cases brought by Guantánamo detainees. By refusing to hear these cases, and any Guantánamo cases since its 2008 Boumediene decision, the Court abandons the promise of its own ruling guaranteeing detainees a constitutional right to meaningful review of the legality of their detention. Today’s decision leaves the fate of detainees in the hands of a hostile D.C. Circuit Court of Appeals, which has erected innumerable, unjustified legal obstacles that have made it practically impossible for a detainee to win a habeas case in the trial courts.  The D.C. Circuit, the country’s most conservative court of appeals, has reversed every detainee victory appealed to it by the government, and as consequence, district courts in D.C. have ruled in favor of detainees in only one of the last 12 cases before them.

 

For nearly 10 years, the Supreme Court’s involvement has been essential in checking the excesses of Executive-Branch detainee policy and in clearing a path in the lower courts for justice for the detainees. The Court’s refusal to get involved at this critical juncture permits the Court of Appeals to continue to rubber stamp the military’s decision-making, undermining our constitutional system of separation of powers.

 

In light of the failure of the courts to carry out their constitutionally-assigned role, CCR calls on the President to fulfill his promise to close Guantánamo, the most infamous prison in the world. He should begin by releasing the 87 men who military, intelligence and law enforcement agencies have unanimously concluded should be released on the grounds that they pose no danger to the United States. 

If you do any federal defense work, you despise the Sentencing Guidelines, both for their draconian approach to sentencing as well as their facile ambiguity, with vague yet overarching rules and are complicated by vague yet incomprehensible application notes. 

While they may not be mandatory (as they were for decades of defendants sent to prison forever because the Supreme Court neglected to mention it until Booker), they remain advisory for all and the rule for guilty pleas, which typically forbid the defense from seeking a below guidelines sentence.  Sure, there’s always a plea for the parsimony clause, but don’t bet your life on it.

So is it just us, or do judges think the guidelines are incomprehensible as well?  Enter Judge Richard Posner, writing for the 7th Circuit in U.S. v. Figueroa.

Economy of words is not a defining characteristic of lawyers, including the lawyers who drafted the sentencing guidelines and application notes and the lawyers and judges who have drawn on the seven factors in Application Note 4 to help determine who is a “supervisor.”…

Application Note 4 relates only to the organizer-leaders; we cannot see what guidance it provides to determining whether a participant who is neither a boss nor a grunt is a manager or (the same thing, just a different word) a supervisor.  When the question is not whether the defendant is a leader or organizer, but instead a manager or supervisor in a hierarchical organization (hence a “middle manager”), there is no need to sweat over the terms “manager” or “supervisor”….

First, some news for Judge Posner. While he may not feel it worthwhile to “sweat” the details, trust me when I say that defendants do. A two to four level enhancement under the guidelines means a long time that you don’t get to sleep in your own bad. It matters. A lot. A whole lot.

But one has to admire Judge Posner’s “regular guy” approach to guidelines interpretation.

If a judge, a probation officer, a lawyer, even a defendant, doesn’t know what a “manager” or “supervisor” is, Application Note 4 isn’t going to help him — especially since it’s about organizers and leaders and not middle managers and low-level supervisors, as the cases, hungry for text to hang a decision on, are reluctant to acknowledge.  So we won’t try the reader’s patience with a trip to the dictionary, where we would find other unhelpful synonyms for “supervisor,” such as one who “oversees,” or unhelpful periphrases such as “to coordinate, direct, and inspect continuously and at first hand [in order] to accomplish” some objective.

It’s the old wink, we know what it means, style of judicial interpretation.  Who doesn’t love a judge who winks?

But as long as we’re talking real (as opposed to those “dictionary synonyms” that try the reader’s patience), let’s dig a bit deeper.  Not too many people involved in drug dealing went to business school.  They aren’t necessarily adept at creating hierarchical organizations to facilitate the efficient functioning of their enterprise.  The basic premise of the guidelines, that criminals function much like any business, except that what they sell is illegal, isn’t always the case.

They’re sloppy.  They’re inefficient. People straggle into, then out of, then back into, crime as the opportunity presents itself. They take orders one day and give them another. When the chance to sell some drugs becomes available, they sell.  When there are no drugs to sell, they do something else.

Not every word out of their mouth (and conveniently caught on a wire) is about drugs. If they want rice and beans for dinner, they tell their spouse they want rice and beans for dinner. It’s not code for drugs.  Every time a number is mentioned, it doesn’t mean kilos. It may mean grams. It may mean something completely unrelated to drugs. This is because drug dealing isn’t always a steady job, and even if it is, the people involved aren’t talking about it 24/7. Like other people, they talk about other stuff as well. If they want to drink some beer, they may ask a friend to bring over a six-pack.  Sometimes, a six-pack is just a six-pack.

Years ago, when cell phones were still a novelty and cost about $12 a minute, I borrowed one from a client. We were driving back to Manhattan from the Bronx in the evening, after an arraignment of one of his friends, and I remembered that it was my mother’s birthday and I had neglected to call her. She was deeply hurt when this happened, as I learned the year before when I forgot as well.

I borrowed the cell phone and called my mother, giving her birthday wishes and mentioning, in passing her years on earth.  She was happy I called.

A year or two later, the fellow whose cell phone I borrowed was the lead defendant in a large, multi-defendant wire prosecution.  In perusing the line sheets, I happened upon a call from my guy’s cell phone by  “Unk Male” to “Unk Female” about a “birthday” with a very large number, characterized as “code for drug transaction”  involving an enormous number of kilos of cocaine.  I would have never imagined my very own mother alleged to be an unindicted co-conspirator. And me too.  I explained this to the judge, who had a good laugh about it (as did we all).  But it really wasnt funny at all.

So while Judge Posner may think it’s time to “get real” about the absurd efforts to quantify and categorize, to pigeonhole and rationalize, crime and sentence, and the sanitary theoretical components that go into a detached vision of how crime happens and what makes it more worthy of a severe sentence, let’s not forget one unfortunate detail:  It’s all a crock, start to finish.  Neither the prosecutor, the agents, the probation officer nor the judge has any firm grasp on how a conspiracy happens, or what the participants do, or how “real” the imaginations of people in suits are when it comes to how people on the street behave.

This is all just make-believe on the way in.  How good of Judge Posner to make it real on the way out.  How good of those protecting us from these conspiracies to know how it all really works.

H/T Sentencing Law & Policy

As the FBI investigated New Haven police Sgt. Chris Rubino for his having seized a smartphone and arrested it’s owner for having committed no crime, he took to the media to defend his honor. From the New Haven Register :

 A police sergeant at the center of Internal Affairs and FBI probes said he believed he had a legal right to seize a woman’s smartphone and the video it contained as evidence that police acted properly while arresting a man during a tussle outside a downtown nightclub.

“I did absolutely nothing wrong,” said Sgt. Chris Rubino, a 19-year veteran of the New Haven Police Department. “I did my job out there. Whether people want to believe I did otherwise, I can’t change that. People are going to believe what they want.”

I seized your car because you weren’t speeding.
I seized your money because it wasn’t criminal proceeds.
I seized your house because it didn’t contain drugs.
I seized your daughter because she didn’t get raped.
I seized your smartphone because it recorded me acting properly.

A picture taken by another bystander shows Rubino with his foot on the head or neck of the arrestee. Rubino attempted to provide context to the image: The man hadn’t been handcuffed or searched for weapons yet and was spitting blood as officers attempted to take him into custody following a weekend incident behind Pulse Night Club. Rubino’s actions were intended to subdue an actively combative suspect, the sergeant said, as other officers took the man into custody.

“I did what I had to do. My job is to get me and my officers home every night” safely, he said.

He also rejected suggestions that police could have waited and asked the woman to turn over footage at a later time. While images of police acting inappropriately show up on the Internet, he said, when is the last time someone posted videos of police acting appropriately and doing their job in difficult situations, he asked.

“Has anyone ever, ever turned in evidence that was in our favor? he asked. “I asked her nicely three times. I’m not going to stand out there and play games. She’s the one who thought she knew the law.”

The woman stated that it was her constitutional right to film police, a position affirmed by the Justice Department. A New Haven police general order also assures citizens the right to film police doing their job.

In 1972, Leonard Jacoby and Steve Meyers, former classmates at UCLA Law, came up with a novel idea.  Create a law firm to serve the middle class, the nice folks who were priced out of the legal market but still needed a lawyer.  It was revolutionary.

They did things no one else had every done. They advertised. They charged flat fees. They used computers. But the soul of their venture was to do something no one had ever done before, or wanted to do before: be the lawyers for the middle-class. The catchphrase, “It’s about time,” referred to the notion that there were finally lawyers regular people could afford. It was brilliant.



The idea may seem obvious today, but it was audacious and outrageous at the time.  Initially, it was very successful, and soon there were 150 offices, primarily located on both coasts. They handled the full panoply of normal legal work, from wills to criminal, the sort of law that regular folks needed.  The “new normal” was born.

But it gave birth to the idea that lawyers could provide mediocre legal work for lower fees, and tap a new market of people who couldn’t afford top notch lawyers with exorbitant fees.  Suddenly, there were 10,000 lawyers charging lower rates, and offering generic services, for the everyman.  And they started to fight when the money got tight, and they just didn’t count on the tears.

By the mid-1990s, in response to competitive pressures, the firm retrenched to 150 attorneys from a high of 330 and stopped handling many of the ordinary personal bankruptcy, real estate closings, uncontested divorces and will preparation that had been its bread and butter following the firm’s formation, but which had faced a market saturated with lawyers and law firms that adopted many of the innovations that Jacoby & Meyers had introduced, accepting credit card payments, charging flat fees and using computer systems to track cases. By 1994 the firm’s television advertising spending dropped to $2.3 million annually, down from their spending peak at $6.4 million in 1988. The firm shifted its focus to age discrimination, consumer fraud, product liability and sexual harassment, where litigation was more lucrative.

When you’re drowning, you’ll grab at anything you think will keep you afloat, even if experience shows that it isn’t as buoyant as it seems.

The experiment of Jacoby and Meyers taught three lessons. There is a market for legal services in the middle class, but while they want to pay as little as possible, they still expect quality legal representation.  The model of pay less, get less, wasn’t “about time.”

The model was capable of providing subsistence level income to lawyers, which is better than starvation.  But most lawyers hope to eventually plant themselves firmly in the middle class, home ownership, new car, feed their children most nights. That sort of thing. The model wasn’t sufficient to get them there.

But the most important lesson is that every new idea, to the extent it might have any viability, will collapse under its own weight as the market becomes saturated. If someone is selling you the idea, they are also selling it to every other hungry lawyer. It might work for one. It won’t work for all.

My pal, Pat Lamb, writes about the New Normal at the ABA’s silly Legal Rebels blog. His latest post is that we’re not special.  He refers to the dictates of economics, though he omits from the equation the constraints and obligations that distinguish lawyers. Still, he has a point.  Lawyers are as much victims of economics as anyone else.

The laws of economics haven’t changed much since Jacoby and Meyers were friends.  Normal hasn’t gotten any newer.  Even if it works for you for a while, it doesn’t mean you won’t meet the same end as J&M. There is no magic bullet.

For quite some time, I’ve urged (and occasionally tweaked) the Slackoisie to rise up from their gutter and overcome their parents’ well-intended mistakes to make something of their wasted narcissistic lives. But I never said it as well as this.



From your baby boomer parents, we apologize for misleading you and handing you a world that sucks.  Wrong though we may be, you can either whine about your miserable life or do something to make it better.  Your choice.

Carol D. is the on-again off-again public defender blawger at  PD Revolution has apparently been busy writing a book, an except of which appears at Jamison Koehler’s blog.  It appears to be quite cathartic, if nothing else.

Surprisingly, Kelly came to my office on the day of his appointment. He wore clean black jeans, a neat, black button-down shirt, and newish looking tennis shoes. He still had cat whiskers painted on his face. He told me that he was opening a camp for disabled children, and that his charitable work should help convince the prosecutor to reduce his charges.  As it stood, he was facing about five years in prison.

“Who can I call to verify your participation in the camp?” I asked, ready to write a name on my notepad.

“I don’t have her name memorized.”

“Of course, not,” I said.  “Perhaps you could give me the names of some of the people who help you run your camp.”

“I do it all on my own.”

“Naturally,” I said.  “Some names of the children participating in your camp, then?”

“I can’t release those records.  They’re contagious.”

“If we are going to try to use your camp to impress the prosecutor, I need something other than your say-so.  A letter from the director, even one of the kids.”

“Are you accusing me of lying?”

“No, but the prosecutor will.”

“The lady at the First Bank of Puget Sound can tell you about the arrangements.”

“Good,” I said, even though the bank was not known for its charitable efforts.  “What’s her name?”

“She has long, black hair, and she works at the one on Jefferson.  I’m not sure which shift.”

“If you want to use her as a reference, you’ll have to get me her name—first and last—and phone number.”

“What?  I’m not going to do your work for you.  That’s your job.”

“Kelly, my job is to give you legal advice and help you with your case, not to run around hunting for bank ladies with long, black hair. If you have someone that can help verify your camp for disabled children, you are in a better position to do this than I am. So, if you want to use this lady, you need to get me her name.”

“What kind of lawyer are you?  I bet you really work for the prosecutor. You’re supposed to help me, but you’re really working to hurt me—it’s like a Catch-24 situation.”

While I’m hoping this is a bit of hyperbole for fun, every criminal defense lawyers has had this conversation to some degree. The difference for a PD is that they can’t decline the representation.

But what if a variation on this theme comes after the initial meeting, after you’ve signed on to the case?  The underlying issue is client expectations.  The sophisticated client, the good, solid, hard-working criminal, is more likely to understand the system and have a better grasp of a lawyer’s functions and limits. They are a pleasure to work with, and they often get the best results because of their cooperation and assistance.

Unfortunately, we aren’t always able to represent sophisticated clients, and the ones who start out appearing reasonable and helpful don’t always remain that way as the case doesn’t progress the way they hope.  Often, they become increasingly disenchanted as the case progresses, when it hasn’t been tried and won within a month, or you haven’t overwhelmed the prosecutor by loudly announcing in court that you’ve been denied your Due Process, the judge gasping with shock and proclaiming innocence.

There’s a negative to all those TV shows where lawyers do three minute summations of platitudes strung together without a shred of evidence needed, imploring the jury to engage in reckless speculation about humanity’s frailties.  The problem is that the unsophisticated client thinks this is how it happens. When you suggest that maybe it isn’t that quick, easy and painless, they think you must be a terrible lawyer.  They may not say it to you, but that’s what they’re thinking.  That and “I wasted all this money on this terrible lawyer who isn’t doing anything to help me.”

Should you eventually win the case, or obtain a favorable disposition (which means favorable in the defendant’s eyes, not yours), much will be forgiven.  Not all, but much.  It still took too long and cost too much, and too many sleepless nights were lost to the lawyer’s failure to magically make the case disappear within an hour.  But at least you finally got it right.

The unsophisticated client never quite accepts the premise that guilt, as overwhelmingly demonstrated by this ugly stuff called evidence, usually comes back to bite them in the butt.  It’s our job, as lawyers, to make evidence go away.  Why?  Because we’re the lawyer. We’re endowed with magical powers that make these things happen. After all, if we can’t, then why are they paying us?

Before I take on a matter for an unsophisticated client (and in criminal law, we usually don’t enjoy the luxury of being able to limit our representation to only those clients who have a clear, firm grasp on the nature and process of the criminal justice system), I try to explain what I do, what they’re paying for, and that there is no magic involved.  They listen and nod in agreement. Sometimes, they even understand, at least to a point.

In the back of their head, however, remains that voice that says, “but he’s the lawyer; he’s supposed to just make all these bad things go away.”  The voice is always there, no matter how well you manage client expectations.  Get used to it, as this is the life we’ve chosen. 

Carl D. Johnson was an architect. He wasn’t a gang member or street tough. He didn’t have a long rap sheet of violence or drugs. He was an architect.  And a diabetic.  And a guy coming him from a bible study class on I-795 in Baltimore.  Now he’s dead.

Per Courthouse News, his wife, Linda, filed suit:

Johnson suffered a diabetic attack sometime after 8:15 p.m. that night, after calling a friend to tell him he was leaving his Bible class, according to the complaint in Baltimore County Court.

He suffered a diabetic attack, crashed on the I-795, and his car came to rest against the guardrail in the median near the merger with I-695.

According to the complaint, when State Trooper Davon Parker arrived and tapped on the window, and Johnson managed to lower the window, Parker pepper sprayed him in the face.

Johnson then got out of his car and Parker clubbed him at least once in the knee. Defendant Officer Loss (fnu) then arrived and whacked Johnson at least twice with his club, the complaint states.

Baltimore County Police Officer Nicholas Wolferman then arrived, whacked Johnson “at least three times” with his own baton, then he and Officer Loss “grabbed Mr. Johnson and threw him over the guardrail,” Johnson’s widow says.

Inexplicably horrible stuff.  It’s possible, of course, that Johnson did something to rile the officer, who perhaps mistook his diabetic shock for insolence.  Maybe he didn’t comply with whatever speed the officer deemed necessary.  Some cops get annoyed with such behavior.

And so there was more:

Nonetheless, after throwing him over the guardrail, the cops applied pressure points to his ears and armpits, she says. Three more cops arrived, including Baltimore County Officer Andrew O’Neill, who Tasered Johnson twice. Officer Loss then punched him in the face and the six officers managed to handcuff him, the widow says.

Eight more cops arrived, and someone took his wallet, which included a medical alert card about his diabetes. Nonetheless, the cops forcibly held him down, though he was not resisting, and was handcuffed, his wife says.

The widow claims Johnson was Tasered at least three times, while he was lying on his back, helpless, surrounded by police. He became “motionless and speechless” and was pronounced dead within an hour of cardiac arrest.

And Carl D. Johnson, architect, was dead.

“Upon information and belief, there were approximately 52 individuals that responded to the scene,” according to the complaint.

All because of a diabetic on his way home from a bible study class.

A funny thing happens once one police officer decides to use force against a person, whether deserved or not, whether necessary or not.  Once one cop turns violent, others feel compelled to join in. Whether it’s a kick, a punch or a taser, they have to prove themselves by adding a lick to the fight.

It’s not very difficult to imagine that the first officer, Davon Parker, misapprehended Johnson’s diabetic shock for contempt of cop.  He commanded, and Johnson didn’t react the way Parker demanded, so Parker needed to show him who’s boss.  That’s how cops roll.

But the 51 others? Was there not one person among them who thought to himself, we’re going to kill this guy?  Was there not one law enforcement officer who said aloud, our job isn’t to make sure one more man doesn’t make it home tonight?  Another punch. Another kick. A pepper spraying and a tasing.  What a tough bunch of cops, protecting society from an architect in diabetic shock, one after another, after another.

So Carl D. Johnson is dead, and it took 52 cops to kill him.  They must be so very proud of their fine police work, all 52 of them. How brave they are.

H/T Turley

While they don’t seem to take my gentle chiding with the same friendly aplomb they used to, I remain concerned about my good buddies at Avvo.  I know they mean well, and I know they want to do right. There’s just this profit-thing happening that impairs their judgment from time to time.  And that’s why guys like me give them a nudge every once in a while.

Granted, I think Avvo Answers is one of the worst ideas ever, both from the “legal consumer’s” perspective, as non-lawyers get free answers to questions that assure they are stupider for having asked, as well as the lawyers’ perspective, as non-lawyers come to believe that they’re entitled to free legal services upon demand.  But that’s already been discussed, and no need to harp on a sore point.

And then things went from bad to worse as Avvo decided to hop on the marketing train with its Avvocating conference, where marketers and social media gurus offered their advice on whether hot pants made a lawyer’s butt look fat.  I  wasn’t too kind about this idea either.  I feel bad about it, because I want Avvo to succeed.

Now, I learn that they’ve got a new deal in the works, with former TV cutie/lawyer/personality Lisa Bloom as their new legal advisor and analyst. Oh boy.  I suppose she’s there to give the non-lawyers someone to admire, particularly since her “blog” is called “Naked Law.”  Suggestive much?

But being a cute blond who wants to be a real celebrity despite the fact that she’s only a lawyer isn’t a bad thing. What is a bad thing, however, is writing insipid posts with stuff like this:

Hey friends!  Big news. As of June 1st, I have joined Avvo as a legal advisor and analyst, reinforcing my goals of encouraging a more informed legal consumer, making law accessible to everyone and helping people make smarter legal decisions.

You might think this all sounds lofty, right?

Well, not exactly. In fact, not at all. It sounds like a twinkie with the white goo oozing out.

As a civil rights attorney, I have spent my career helping ordinary people seek justice in their lives.  But because I have a small boutique law firm, I can only take on a limited number of cases at any given time.  The overwhelming majority of people who contact me get turned away (though I always try to find them a good lawyer).  It’s always sad when I can’t help someone who really needs answers and guidance.  So when the folks at Avvo.com told me the idea behind this Naked Law blog – providing law for the people – I jumped at the opportunity.

Or maybe that’s a bit disingenuous, considering that you hosted a show on former Court TV, wrote a couple books and spend your days twitting about your next interview. It’s awfully hard to find time to “help ordinary people” when you’re so busy trying to be a celebrity.  You could take a whole lot more cases if you stopped worrying about your next chancd to hype your celebrity.  Say, do you know Gloria Allred?

Avvo.com is truly revolutionary, and I don’t use that term lightly.  Because for the first time, ordinary people can get real lawyers to answer their questions – for free!  How does it work?  Avvo.com is a social media platform that provides consumers with free and direct access to legal (and medical!) professionals. It’s amazing to me that more than 100,000 lawyers are actively participating on Avvo.com answering tens of thousands of consumer legal questions, and embracing the Internet as a way to provide transparency to the profession.

I encourage you to become more empowered, to harness the power of the Internet to get your basic questions answered and get educated before you see an attorney.   The law doesn’t just exist for giant corporations with expensive attorneys on retainer.  It’s here for all of us.

At least this comes straight from the heart, and not from the marketing department. Much. And I’m not even touching Lisa Bloom’s first post on the Sandusky case, reflecting her very experienced lawyerly view that juries love child molesters and don’t believe victims.

Though neither of my buddies, Mark Britton nor Josh King, asked, I offer some friendly advice. Rather than try to own the twinkie niche, why not elevate the discussion with information that might actually make “legal consumers” smarter for having read something at Avvo?  I realize that David Boies isn’t much to look at, but I bet he knows a thing or two about law that might interest readers.  There are real lawyers out there who could illuminate the law, with depth and understanding, rather the spout marketing crap and the most ridiculously superficial pap possible.  Why not?  It just might work.  And more importantly, someone just might be better for your having done it.

As for Lisa Bloom, whom I don’t know but who seems nice enough: You may be a great lawyer, for all I know, but one could never tell from the crap you’ve put out thus far.  Don’t let the marketing department write your stuff. Spend more than 3 minutes thinking before you let something go out under your name.  The “legal consumers” come and go, and they wouldn’t know good if it bit them in the butt.  But lawyers know, and there is an awfully good chance they’re going to see the sweet white cream oozing out if you don’t show some massive improvement in the level of thought put into your posts.

I know you want to be a celebrity, and pounding perpetual self-promotion seems to be the quickest route.  But lawyers on the internet can be a tough crowd.  If you’re half the lawyer you say you are, then show it. I have no problem with a great lawyer being a cutie as well, but a cutie, a self-promoter and a vapid twinkie isn’t going to cut it.  Help out my buddies Mark and Josh with some sound thinking. They could use the help.

Just because you’re Gloria Allred’s daughter doesn’t mean you can’t be a decent lawyer and a real person. It will take some doing, of course, but nothing worthwhile comes easy.

When  last we heard of  Dr. Michael LaPaglia, anal examiner extraordinaire at the Methodist Medical Center of Oak Ridge, it was for sticking his fingers into a 21-year-old named Felix Booker.  The physician’s excuse was that someone was going in whether Booker consented or not, and he wasn’t about to miss the chance to get his hands dirty.  Well, Dr. LaPaglia is back.

Via Knox News :

An Oak Ridge man who says he was forced in June 2011 to submit to a digital rectal exam for suspected drugs — and no drugs were found — has filed a lawsuit in Anderson County Circuit Court.
Wesley Antwan Gulley’s legal action contends his constitutional rights were violated and he was subjected to false arrest and imprisonment, assault and battery and medical battery.

The lawsuit alleges Gulley was in shackles and reluctantly consented to the exam, but only after Dr. Michael A. LaPaglia ordered an injectable sedative and threatened to use it “in performing the digital rectal exam …

At least with Booker, LaPaglia pulled out a plum.  But Gulley had nothing to hide.  The justification for suspecting that there were drugs hidden in his anus?

Gulley was stopped in Oak Ridge for an alleged traffic violation on June 3, 2011, and told he was being arrested for drugs, according to the lawsuit. He was 19 at the time, records show.

A drug-sniffing dog alerted on a $20 bill found on the driver’s seat of the vehicle, and Gulley underwent an extensive pat-down search.

He was then taken to Methodist Medical Center of Oak Ridge for the exam, the lawsuit states.

It all started with a traffic violation, which devolved when a drug dog alerted to a $20 bill.  What are the chances?  Incredibly good, actually, since  almost all currency will give rise to a dog alert.  Then there’s the question of dog sniff alerts, notoriously subject to the influence of the handler and the false-positive problems with dogs.  But hey, it was a traffic violation. Nothing says drug in the anus more than a traffic violation.

So naturally, Gulley was taken to the hospital in the usual course of a traffic violation and dog hit.  You can never be too sure of such miscreants.

Three Oak Ridge police officers and two nurses were in the hospital room at Methodist Medical Center of Oak Ridge at the time of the exam, according to the complaint.

Nothing was found and Gulley was never charged with any drug-related crime, the lawsuit states. A resisting arrest charge filed against Gulley was later dismissed by the state, the lawsuit states.

There was no question what to do with Gulley after his seizure: Bring him to LaPaglia, who not only has no reservations about performing medically unnecessary procedures and facilitating the police officers whimsical, baseless (and warrantless) intrusions into the bodies of their suspects, but a doc who seems always ready to stick his fingers into another man’s anus.  If there’s an anus to be searched, Dr. LaPaglia’s the man to do it.  With gusto.

The cavity search performed on Felix Booker, who was subsequently convicted of possession and whose case is before the 6th Circuit on appeal, was outrageous in that always eager LaPaglia paralyzed Booker to stick his fingers where the sun don’t shine at the mere request of the police.  No warrant. No consent. No nothing.

But compounding the perversity, LaPaglia used his medical license to become a happy tool of law enforcement, only too willing to once again dive in with a suspect whose only purported connection to drugs was a hit on a $20, about as worthless as any evidence could be,  As much as this is a legal outrage, what the heck do other physicians think about this conduct?  Are they good with their fellow physician performing these procedures whenever a cop asks?

As for the folks in Oak Ridge, if you end up in the hospital and a doc named LaPaglia happens to show up, I strongly urge you to demand that he wash his hands. You never know where they’ve been.

H/T Knoxville lawyer R. Arthur Jenkins

The story of a bystander watching an arrest on the street, becoming the inexplicable target of a violent cop, who then viciously attacks him without reason, is not a new one here.  When the bystander happens to be a New York State Supreme Court Justice, it gets a little more interesting. 

From the New York Times :

Thomas D. Raffaele, a 69-year-old justice of the New York State Supreme Court, encountered a chaotic scene while walking down a Queens street with a friend: Two uniformed police officers stood over a shirtless man lying facedown on the pavement. The man’s hands were cuffed behind his back and he was screaming. A crowd jeered at the officers.

The journey of this story starts here, because the judge stumbles upon a street bust. Key detail is that the perp is on the ground cuffed.  Toward the bottom of the story, this detail emerges:

When they first came upon the crowd, the judge said, he was immediately concerned for the officers and called 911. After he made the call, he said, he saw that one of the officers — the one who he said later attacked him — was repeatedly dropping his knee into the handcuffed man’s back.

And our judge, protector of the official, public servant sycophant, badge-licker, watches as the cuffed criminal gets kneed in the back repeatedly.  Our judge is concerned about the unruly crowd, upset at a cop for violently abusing his prisoner, becoming a threat to our judge’s beloved police.  So our judge calls 911 to backup the police. It never occurred to him that the perp on the ground shouldn’t be repeatedly kneed in the back, or the crowd had damn fine reason to be upset. 

But within minutes, he said, one of the two officers became enraged — and the judge became his target. The officer screamed and cursed at the onlookers, some of whom were complaining about what they said was his violent treatment of the suspect, and then he focused on Justice Raffaele, who was wearing a T-shirt and jeans. The judge said the officer rushed forward and, using the upper edge of his hand, delivered a sharp blow to the judge’s throat that was like what he learned when he was trained in hand-to-hand combat in the Army.

How horrible for our judge. His beloved cop attacks!  A sharp blow to the judges throat is a serious matter. Unlike a sharp knee to a perp’s back, over and over, which, our judge wondered, could potentially hurt the officer’s knee very badly.

But he’s a judge, not some unworthy street punk deserving whatever comes to him. You can’t do that to a judge!

Justice Raffaele said that after the officer struck him and he regained his composure, he asked another officer who was in charge and was directed to a sergeant, who, like the officer who hit him, was from the 115th Precinct. He told the sergeant that he wanted to make a complaint.

The sergeant, he said, stepped away and spoke briefly with some other officers — several of whom the judge said had witnessed their colleague strike him — and returned to tell the judge that none of them knew whom he was talking about. As the sergeant spoke to the other officers, the judge said, the officer who hit him was walking away.

Welcome to the real world, judge. No matter how good you look in robes, on the street, you’re still the enemy. 

As it turned out, Justice Raffaele went to the hospital and was treated and released. He’ll be fine. He reported the incident to the Civilian Complaint Review Board, which will give it a read as opposed to filing it in the unsubstantiated file with the rest of them.  And internal affairs is investigating because the complaint came from a judge.  He’s credible, as opposed to the rest of us who are dog meat.

But what did our judge learn from the experience?

“I do feel that it’s important for this person to be disciplined. I don’t know if he should be an officer or not — what he was doing was so violent.”

Ya think?  But it’s just one bad apple. No systemic problem here, and certainly no concern about the perp handcuffed on the ground getting kneed in the back over and over.  It’s not that Justice Raffaele is a bad guy, or even a bad judge, sitting in the matrimonial part and one of the volunteers to perform weddings of gay couples when the law was changed.

“I think, universally felt, that he is one of the most soft-spoken, thoughtful, decent human beings around,” Justice Weinstein said. “I think his temperament is admired by certainly his colleagues in the bar and I believe the community that he served.”

Often, the thought is that judges can’t understand and appreciate the reality of life on the street because they sit too high on their bench, their minds obscured by the obsequious laughter when they tell lame jokes.  Yet Justice Thomas Raffaele, walking the streets of Jackson Heights in jeans learned exactly how life on the street goes, both for the perp he watched beaten, the crowd trying to stop the viciousness and for himself, a 69-year-old men who was struck in the neck by a cop for no reason whatsoever.

He learned how the cops circle the wagons and refuse to help. He learned how they deny everything. He learned how they stand there watching as a cop attacks a person, and do absolutely nothing to stop it.

And all he gained from the experience was that there was one cop who needed discipline.  Not only does this shatter the myth that judges would know if only they could experience the life of regular folks on the street, but it reinforces the myth that those who have hitched their wagon to the establishment are incapable of either learning or caring, as they continue to see life through official eyes. 

It’s unfortunate that Justice Raffaele was harmed by a cop. It’s worse that he learned so little from it.