In anticipation of the Supreme Court’s hearing Florida v. Harris, Penn State visiting assistant lawprof Erica Goldberg has written a pair of  interesting posts at Concurring Opinions. I leave the statistical analysis aspects to Goldberg and anyone else inclined to give it deep thought.  As a lawyer, I decline to engage in anything remotely resembling math unless it involves calculating my legal fee.

The aspect of Goldberg’s posts that I find intriguing is the perpetual and intentional avoidance of quantifying probable cause.

Courts consistently and expressly eschew technical conceptions of probable cause in order to provide police officers with flexibility to exercise their judgment in unfolding situations. In addition, courts focus on whether an officer has a reasonable belief that a suspect has committed or is committing a crime. This metric allows for probable cause to be found in situations where one reasonable officer might assess an 80% likelihood that a suspect is driving drunk, for example, even if another reasonable officer might think there is only a 40% likelihood. We might be tempted to assume the courts require that a reasonable officer be able to believe a crime has been committed by greater than a 50% likelihood, but this has not been made explicit.  All officers must prove to a court assessing a vehicle search is a reasonable ground for belief of guilt.  Further, when a court is making a probable cause determination for itself in determining if a warrant should issue, it must decide only if there is a “fair probability that contraband or evidence of a crime will be found in a particular place.”  What is a fair probability?

Granted, we would be deluding ourselves if we believed that under most circumstances, there could be a meaningful quantification of what constitutes probable cause. Sure, it wouldn’t kill the Supreme to use the ordinary definition of “probable,” as in more likely than not, but that might impair the flexibility of police officers to exercise their judgment, even though that makes probable cause sound particularly arbitrary.

Dogs, however, are entirely different.

In the context of drug detection dogs, where we have actual data on reliability, assigning a numerical value to probable cause — or at least to the maximum false positive percentage upon which an officer can rely — would add much needed clarity to Fourth Amendment law. It also does not undermine police officers’ ability to use their intuition, because the event precipitating a search is not an officer’s informed judgment, but the alert from a dog.

This assumes, of course, that the cops don’t bury the K-9 Officer Fluffy’s screw-ups and maintain legitimate records of every false-positive, false-negative, false-whatever.  It gives rise to some hard numbers, and that makes for some hard law.

At present, doggies are not only furry, friendly and cute as the dickens, but legally untouchable.  If a drug detection dog alerts, a big neon sign pops up screaming probable cause to search, and there’s nothing to be done about it.  The dog only gets it right 3.2% of the time? So what? It’s a dog, and the law loves dogs.

Then the Florida Supreme Court went and screwed it all up by applying basic reason to the myth, as in the expectation that before the Constitution is subject to the whims of a dog (or, for the sake of argument, it’s handler), a sufficient showing of reliability has to be made.  What a bunch of dog haters.

The Supreme Court may have granted cert in Harris to overturn what it considers an unduly burdensome evidentiary requirement on the police. However, if the Florida Supreme Court’s decision is upheld, the Supreme Court should decide numerically what maximum false positive rate can still yield probable cause, given the totality of the circumstances. The Court should not require the introduction of a dog’s false positive rate and then not advise lower courts on what rates are permissible to establish probable cause.  If out of 100 positive alerts to cocaine by a particular dog, the drug is found in only 50 of the cars, the Court should decide whether a police officer may search that car.

For all its efforts to avoid putting a number, a percentage, it may be hard to avoid this time.  The problem, of course, is that should the Supremes fix a percentage for dogs to suffice in establishing probable cause, there is no rational reason why it wouldn’t be applied to probable cause in general.

So what’s wrong with that?  Orin Kerr explains :

[C]ourts should not quantify probable cause because quantification would produce less accurate probable cause determinations. The core problem is that information critical to probable cause is often left out of affidavits in support of warrants: Although affidavits say what techniques police tried that added to cause, they generally leave out both what the police tried that did not add to cause and what techniques the police never tried. Determining probable cause accurately often requires this information, however. By leaving probable cause unquantified, current law enables judges to use their intuition and situation-sense to recognize when missing information is likely important to assessing probable cause. Quantification would lead to less accurate probable cause determinations by disabling those intuitions, creating the false impression that the information provided in the affidavit is the only relevant information. Cognitive biases such as the representativeness heuristic and anchoring effects would allow the government to create the false impression that a low-probability event was actually a high-probability event. To ensure accurate probable cause determinations, then, probable cause should remain unquantified. The result is counterintuitive but true: Knowing less about probable cause improves how the standard is applied.

While I admit that I can’t make any sense of this at all, it doesn’t stop me from disagreeing.  But then, I really don’t like dogs all that much and I like judges using “their intuition and situation-sense” to decide the scope and limits of constitutional rights even less. 

On the bright side, I have no expectation that the Supreme Court will affirm the Florida Supreme Court’s decision in Harris, making all of this a futile academic exercise. Instead, I anticipate a brief decision (perhaps written by Justice Thomas) to the effect that “dogs are cute and if something makes their cute little ears perk up, that’s good enough for us.”  No stats required.

At the Volokh Conspiracy, Eugene Volokh writes about the Michigan Supreme Court upholding the right to forcibly (but not lethally) resist illegal police conduct.  Oh boy.

The case is People v. Moreno (Mich. Apr. 23, 2012) (5 to 2). A 2004 Michigan Court of Appeals decision had held the contrary, but the Michigan Supreme Court overruled that precedent.

Under the old common law rule, people were allowed to use nondeadly force to resist an illegal arrest or search. But, to quote the dissent, “As of 1999, 39 states had eliminated the common-law right, ‘twenty-three by statute and sixteen by judicial decision.’” The question in this case was whether a Michigan statute had likewise eliminated the common-law right; the majority concluded that the statute hadn’t done so. The decision was on its face about how to interpret the statute, but I take it that the majority thought the common-law rule at least made enough sense that they shouldn’t reverse it themselves.

I can hear the cries of “yesssss” from the crowd, those who fear the militarization of the police, the evisceration of civil liberties, the deceit and cowardice that permeates a system that purports to protect the rights of individuals from the power of government.  Step back a moment.

The Moreno case reflected a fact pattern that was relatively limited, where the police, without a warrant, tried to enter a person’s home.

On the morning of the incident, Officer Troy DeWys and Officer Matthew Hamberg were searching for Shane Adams. Adams had several outstanding warrants.  Defendant’s house was in the immediate vicinity of where Adams’s vehicle was parked, so the officers knocked on defendant’s front and back doors to inquire about Adams. While outside the house, Officer DeWys heard voices and people running inside the house. He identified himself as a police officer and stated that he wanted to ascertain the identities of the people inside the house. Officer Hamberg looked through a basement window and could see empty bottles of alcohol and people trying to hide.

Approximately 15 minutes after the officers had knocked on the doors, Mandy McCarry opened the front door. Officer DeWys smelled “intoxicants and burnt marijuana.” McCarry admitted that underage persons were consuming alcohol inside the house, but Officer DeWys told her that he was not interested in writing “a bunch of minor in possession tickets.” Officer DeWys told McCarry that he just wanted to identify who was inside the house. Officer DeWys asked McCarry if she knew the owner of the vehicle parked in the street. McCarry asked the officers if they were looking for Adams and stated that he was not inside the house. McCarry told the officers that they could not come inside the house without a warrant.

Officer DeWys then informed McCarry that the officers were entering the house to “secure it” while they waited for a warrant. At that time, defendant came to the front door and demanded that the officers obtain a warrant before entering his house. Defendant then attempted to close the door, but Officer Hamberg put his shoulder against the door to prevent defendant from closing it. A struggle ensued between defendant and the officers. Ultimately, the officers pulled defendant from his doorway, physically subdued him, and arrested him. Officer DeWys suffered a torn hamstring and bruised elbow in the struggle.

It never ceases to amaze me how a cop always ends up the one with an on-the-job injury that allows him to receive salary without having to work. But I digress.

There are two distinct approaches, and relative problems, with the right to resist unlawful police conduct.  First, there is likely no right more fundamental to “life, liberty and the pursuit of happiness” than the right not to be subject to the command of, and the force of, those people to whom the government gives shields and guns, together with the authority to use them against their own people.

Second, there is no surer way to end up in prison, maimed or dead. 

A basic tenet of law is that there is no right without a remedy.  A more pragmatic truism is comply now, grieve later.  Being legally right and dead has its downside.  What is rather remarkable about the facts in Moreno is that when Moreno tried to stop the officers from entering his home, they didn’t pull out a gun and blow his head off.  To their credit, Moreno was alive to fight the case, and ultimately prevail, because the police struggled but did not shoot.

The legally right person cannot count on this happening. 

The asessment of who is in the legal right is extremely difficult to make after the fact, and essentially impossible to know at the moment a decision must be made to resist with force the conduct of the police.  If some judge years later decides that the civilian was correct, that the conduct of the police officers was unlawful, then the decision to resist is vindicated.  In the meantime, of course, the civilian gets to enjoy the ride, even though he eventually beats the rap.

Mind you, the eventual argument over whether a civilian’s self-diagnosis of the lawfulness of police conduct is subject to the cops analysis to the contrary.  Whether it’s a matter of testilying or differing perceptions of what occurred, there is a strong likelihood that the police will have a story that makes their conduct appear abundantly lawful, and that the judge will embrace their recitation of facts regardless of what the civilian and his 27 witnesses (three of whom are nuns) has to say.

It’s one thing if resistance is necessary in a life or death situation.  Another old adage is that it’s better to be judged by 12 than carried by six.  Or when a police officer engages in flagrantly criminal conduct, such as raping a woman.  But these are outlier situations, rather than the more typical general unlawful stop and seizure, or (as in Moreno) blatant violation of the 4th Amendment by the forcible entry into a home without a warrant.

While the Moreno decision dealt with the vitality of the common law right to resist in the face of a statute that could be interpreted to have eliminated the right, the existence and recognition of the right of a person to be free of unlawful police conduct, to fight it, to resist the violation of his right and person, raises some of the most difficult issues conceivable. 

That the right exists is, theoretically, a fundamental requisite of a free society.  But until someone comes up with a viable way to restore life to a legally correct person with a bullet in his head, it lacks an adequate remedy to make it a good idea.  Resistance may not be futile, but it comes at enormous risk.

Via Radley Balko, the Sacramento Sheriff’s Department collected DNA from middle-schoolers in an effort to  identify the killer of 13-year-old Jessica Funk-Haslam.

Jessica Funk-Haslam was found in the dugout of a baseball field at Rosemont Park on March 5. Investigators say the girl had argued with her mother and left home the night before. She boarded a nearby light-rail train, transferred to a bus and got off near the park.

It’s a horrible crime, and certainly one that compels investigation.  But when police decided to focus on students at Albert Einstein Middle School, their conduct raised serious issues.

Samples of DNA were collected without parental consent from students at a Sacramento, Calif., middle school in connection with the murder of an 8 th grade student who was found stabbed, strangled and beaten to death near the dugout of a local park.

The Sacramento Sheriff’s Department, which has been spearheading the investigation into the murder of Jessica Funk-Haslam, 13, said parental consent was not required in the DNA collection and interview of minors, several of whom were taken out of class during the day last week at Albert Einstein Middle School.

“These are interviews, not interrogations,” Sheriff’s Deputy Jason Ramos told ABCNews.com. “They are all consensual. Once it’s done, there is a mechanism in place for school administrators to notify parents.”

Consensual?  Because tweens knowingly, intelligently and voluntarily agreed to allow sheriff’s deputies to swab their DNA, fully aware of their right to refuse?  That a mechanism may exist to notify parents after the damage is done is not merely irrelevant, but outrageous.  Children are sent to school to be educated, not subject to the whims of police.  Calling it an interview doesn’t alter the fact that this was without question an interrogation, a submission of young children to authority, both school and law enforcement, and it’s insulting to suggest otherwise.

One might expect the reaction to this overreaching intrusion to be swift and brutal, particularly by academics who should be peculiarly sensitive to the abuse of the tendency of children to submit to authority.  One might be wrong.

There is nothing under California law that prohibits DNA collection of consenting minors, said John Myers, a professor at the McGeorge School of Law in Sacramento.

“I think the answer is, kids can consent, and if they consented and it was knowing and intelligent, [law enforcement] can do the search,” he told the Sacramento Bee.

Myers isn’t some kid-supplicant to the ways of police, but lauded on the McGeorge website as:

a Distinguished Professor and Scholar. He is one of the country’s foremost authorities on child abuse. He has traveled throughout the United States and abroad, making more than 400 presentations to judges, attorneys, police, doctors, and mental health professionals. Professor Myers is the author or editor of eight books and more than a hundred articles on child abuse. His writing has been cited by more than 150 courts, including the United States Supreme Court and the California Supreme Court.

If a “foremost authority” has no issues with the cops collecting DNA from “consenting children” in a schools without parental knowledge and consent, who am I to question it? 

Of course, would it have undermined the need to collect evidence had the school refused the police unfettered access to the children until they notified and obtained authorization by the parents? 

“The parents have been completely supportive of it, in fact advocating our detectives do that for the benefit of excluding their children,” Ramos said. “We’ve gotten a lot of positive feedback.”

But one parent who said her son was interviewed wasn’t happy with the process.

“My child’s in a room with two detectives being questioned and grilled and I’m sure he was quite frightened, which is very upsetting,” Michaela Brown told the Los Angeles Times.

Under the circumstances, the death of a young girl in the balance, most parents would have little issue with the police, or more likely someone more benign like a school nurse, taking a cheek swab.  Had the police obtained the consent of the parents of these children, there would be no issue here,  To suggest, as Deputy Ramos does, that they’ve gotten “positive feedback” strikes me as absurd. Did the parents urge the cops to do DNA tests more often, just for fun?  While some might be willing to endure the interrogation and testing of their child, there is nothing about this that strikes me as being positive.

The comment by parent Michaela Brown, on the other hand, seems far more likely, and rational.  There is no child in a room with two detectives who isn’t frightened, who doesn’t feel coerced into complying.  Most adults would feel that way, and it would take an enormously tough kid to not feel coerced to submit to the shield.

And what does the  school have to say about their decision to provide police with unfettered access to the students without parental consent?

Administrators at Albert Einstein said they met their legal obligations by calling the parents and telling them what was happening, though in at least one case a voicemail message was left for a parent.

“Any time authorities come to our school and want to talk to our students, our first priority is to make sure we let parents know immediately,” said Gabe Ross of the Sacramento City Unified School District.

Apparently, the word “immediately” in Sacramento means after the cops are done interrogating and collecting DNA from a child.  But since all the “experts” agree, why should parents (or old lawyers) take issue with the government doing as it pleases with children.

Adding the word “virtual” before an otherwise neutral noun makes it not only sound hipper and cooler, but allows us to pretend that none of the aspects of responsibility that tether us to unpleasant reality apply.  With law, but with interactions as well.  MIT professor  Sherry Turkle explains in the New York Times :

We’ve become accustomed to a new way of being “alone together.” Technology-enabled, we are able to be with one another, and also elsewhere, connected to wherever we want to be. We want to customize our lives. We want to move in and out of where we are because the thing we value most is control over where we focus our attention. We have gotten used to the idea of being in a tribe of one, loyal to our own party.

In the silence of connection, people are comforted by being in touch with a lot of people — carefully kept at bay. We can’t get enough of one another if we can use technology to keep one another at distances we can control: not too close, not too far, just right. I think of it as a Goldilocks effect.

The perfect way to foster and grow a virtual world around us, with exactly as much (or little) interaction as we desire, and offering only the succor and comfort we seek. It’s a wonderful, addictive experience, but for one problem. It’s a virtual lie.

We are tempted to think that our little “sips” of online connection add up to a big gulp of real conversation. But they don’t. E-mail, Twitter, Facebook, all of these have their places — in politics, commerce, romance and friendship. But no matter how valuable, they do not substitute for conversation.

Lawyers are no less engaged in living this lie than anyone else, but unlike those who merely delude themselves into believing they are surrounded by supportive friends, many lawyers use it in lieu of professional growth and the often harder, and harsher, process of learning that a lawyers’ life isn’t easy, pleasant and fuzzy. 

Connecting in sips may work for gathering discrete bits of information or for saying, “I am thinking about you.” Or even for saying, “I love you.” But connecting in sips doesn’t work as well when it comes to understanding and knowing one another. In conversation we tend to one another. (The word itself is kinetic; it’s derived from words that mean to move, together.) We can attend to tone and nuance. In conversation, we are called upon to see things from another’s point of view.

At a time when the economy and job market suck, when the once-rosy prospects of a future as wealthy, or at least financially stable professional, lawyer seem at best a fond memory of a past age, technology swoops in to make young lawyers feel better about themselves, or at the very least provide company in their misery.  As they search for answers, they find the answers they want to find, “sips” from people who they have never met, know nothing about, with only avatar pictures to ground them, but who say the words you want to hear.

Take a look at the people with whom you twit, who you follow and engage.  Are they people who will tell you when you are about to do something questionable, or will pat you on the back and tell you how much they care about you?  Does it make you feel important and worthwhile to be acknowledged by someone you think is more worldly and well-regarded than you?  And if they say a kind word to you, do you take that as approval?

The cult of positivity online has already been discussed at some length, reflecting everyone’s desire to establish themselves as a virtual force in their virtual world.  When the cold, hard real world doesn’t provide you with the ease and comfort of the digital one, do you log out of life and wrap yourself with Facebook friends?

And we use conversation with others to learn to converse with ourselves. So our flight from conversation can mean diminished chances to learn skills of self-reflection. These days, social media continually asks us what’s “on our mind,” but we have little motivation to say something truly self-reflective. Self-reflection in conversation requires trust. It’s hard to do anything with 3,000 Facebook friends except connect.

It’s long been my suspicion that many young lawyers know that they’re skirting the fundamental rules they learned in kindergarten, about competence and ethics, about obligation and responsibility.  They know that there is no magic bullet that will transform their misery to fabulous wealth and success overnight, if only they fabricate an internet existence that stands in stark contrast to reality.  But they can avoid self-reflection by immersing themselves in a world that will never say anything meaningful, but will always tell us what we want to hear. 

While Turkle suggests that connection and trust are unrelated, thus inhibiting true self-reflection, she ignores the cult of positivity aspect of the internet.  Your 3,000 Facebook friends will tell you the dress doesn’t make your butt look fat, just because no one wants to be mean.  Of course, that doesn’t help alter the fact that your butt looks fat, and diminishes trust because no half-wit thinks they can trust the always-positive, never-mean friends to tell the truth.  Or, if you want to wear the dress, then it merely confirms what you want to hear and you walk away wearing the dress you want with your fat butt behind you.

WE expect more from technology and less from one another and seem increasingly drawn to technologies that provide the illusion of companionship without the demands of relationship. Always-on/always-on-you devices provide three powerful fantasies: that we will always be heard; that we can put our attention wherever we want it to be; and that we never have to be alone. Indeed our new devices have turned being alone into a problem that can be solved.

With this brave new world of the internet, we can find someone to tell us whatever we want to hear, to comfort us when we’re down and rub our tummies when they need a sweet rub. But it’s a self-indulgent fantasy.  The real world, like real communication, isn’t always easy or happy, comforting and comfortable.  And what we do as lawyers is as real world as it gets.  Enjoy the toys, but never forget what’s real. Your clients won’t.

I was sitting on a bench in Cambridge on a fabulously sunny April day, watching awkward but happy kids rush by with important things to do.  In my hand was a bottle of spring water, handed out to old folks like me to give us the impression that someone cared deeply about us without adding too much to the cost of the weekend. The industry of Cambridge, Massachusetts is education.

After attending a handful of lectures and panel discussions, where serious but empathetic people used every Latin variation of supporting and nurturing in each sentence, I had wandered around until I heard a young man ask for a second copy of the weekend’s itinerary. His was gone, whether lost or swiped, and he had no idea what to do.

In a voice dripping with empathy, an official woman explained that they only had one copy of the booklet per student, and couldn’t possibly provide him with another. With puppy dog eyes and a tone usually reserved to gush at ugly babies, she told him how deeply sorry she was, and suggested that he retrieve the itinerary via a smart phone.  He didn’t have a smart phone. His parents failed him by not earning enough money to arm him with a technological alternative. 

Hearing this, and being the sort of guy who can’t keep his nose out of other people’s business, I asked the official woman whether the young man was supposed to wander aimlessly for the next few days, and didn’t they anticipate that a few young people, through no fault of their own, would end up without the vital itinerary?

She explained to me, in the patient voice one uses when speaking with someone intellectually challenged, that they simply didn’t have enough to hand out seconds.  I explained that when his parents got their tuition bill, the last concern they would have was the school’s poor planning and its consequent refusal to provide any help to a lost kid.  I also gave her the evil eye.  She gave the young man a second itinerary.  Apparently, they had a few extras.

I sat on the northerly side of the bench, when a woman with eyeglasses and two young children in tow sat down next to me, exhausted.  We started chatting, because that’s what parents do at these things. She told me her daughter was the first of four to leave the nest. She had 17 more years of college to pay for. I softly mentioned something about weddings, but decided not to talk about ice sculptures. It would have been cruel.

After exchanging vital statistics, the woman asked me if we had heard yet from financial aid. She told me she was asking everyone, as it was killing her and her husband.  They got squat.

“They say that they offer very generous financial aid. What a load of crap.”  This was clearly weighing heavily on her, which is understandable as I watched her two young’uns run around.  She explained that she and her husband both worked, decent jobs but not quite hedge fund managers. Realizing that they had children from the constant demand for food, they scrimped and saved. She had no smart phone either, like the young man who lost his booklet. She chose to clip coupons so that she wouldn’t have to fear a bad day at work leaving her children hungry.  This was they way she lived her life.

Other people don’t worry as much. They have more fashionable clothes and shinier toys. We see all the people who have stuff. I often wonder how they afford it, but others wonder where they got it so they can get it too. 

The worried woman next to me explained that because she had saved her pennies by depriving (though she would never describe it as deprivation) herself of this things that others had, she found herself in an awkward position.  Her family earned no more than others, but because they didn’t squander their earnings, received essentially no financial aid. They had to pay full freight, though it would be impossible on their income and would require them to use their life savings. 

By the time the tuition for their first child was paid, they would be destitute. The years of savings, of self-denial, leading to this point would be disappear with a poof.  It would disappear just as surely as if they had bought new cars every three years. Expensive, cool new cars. The good news was once they were rendered indigent, their remaining children would be given a need-based free ride.  The joys of poverty. It was all she could see in her future.

She explained that they had lived their lives according to core values of never spending more than they could afford, saving for a rainy day, being self-sufficient and living within their means.  She told me that she never went on fancy vacations or wore the latest fashions.  And yet, they would be as broke as the family that pissed away every dime they had, and then some, when the tuition bills came due. Other people, the ones with nice cars, cool clothing, smart phones, would receive substantial financial aid to make college affordable.  She had to pay until there wasn’t a dime left.

She asked me if I understood.  I told her I did.

Her youngest was tugging at her sleeve, asking if she could get something to eat.  She said it was nice talking, and wished me the best of luck.  I wished her the same, knowing that luck had nothing to do with it. As she walked away, I sucked down the last of my free bottled water, and watched the young people going by, so wonderfully happy, carefree and filled with the promise of their future.

You probably wonder what exactly are the criteria for having a great future in forensics.  Years of college and post graduate studies? Years of experience in the trenches?  Brilliant articles published in respected scientific journals?

How about the ability to draw a picture on the back of a match book? Not even that much.

Via Keith Lee, Leah Bartos reveals the deal at ProPublica :

This is how I — a journalism graduate student with no background in forensics — became certified as a “Forensic Consultant” by one of the field’s largest professional groups.

One afternoon early last year, I punched in my credit card information, paid $495 to the American College of Forensic Examiners International Inc. and registered for an online course.

After about 90 minutes of video instruction, I took an exam on the institute’s web site, answering 100multiple choice questions, aided by several ACFEI study packets.

As soon as I finished the test, a screen popped up saying that I had passed, earning me an impressive-sounding credential that could help establish my qualifications to be an expert witness in criminal and civil trials.

For another $50, ACFEI mailed me a white lab coat after sending my certificate.

How cool is that! And now you can take the witness stand, make up crap and put people in prison for life. Or longer!

Whether hair, fiber, fingerprints, ballistics and, if they get their way, soon to be duct tape, experts take to the stand and opine in such a way as to reach conclusions that jurors are incapable of reaching on their own.  The idea was that jurors lacked the education and experience, when it may mean nothing more than jurors never put their $495 on the table.

Over the last two decades, ACFEI has emerged as one of the largest forensic credentialing organizations in the country.

That’s right, it’s take seriously.  Deadly seriously. It doesn’t mean that some people who are putatively competent to serve as “experts” aren’t worthy of credentals, but rather than ACFEI is a mill, and anybody, competent or otherwise, can be an expert if they have a spare hour and a half of their life.

Anybody?  Yes, anybody:

But ACFEI also has given its stamp of approval to far less celebrated characters. It welcomed Seymour Schlager, whose credentials were mailed to the prison where he was incarcerated for attempted murder. Zoe D. Katz [5] – the name of a house cat enrolled by her owner in 2002 to show how easy it was to become certified by ACFEI — was issued credentials, too. More recently, Dr. Steven Hayne [6], a Mississippi pathologist whose testimony helped to convict two innocent men of murder, has used his ACFEI credential to bolster his status as an expert witness.

Not only is the credentialling available from ACFEI nonsense, but the very efficacy of soft forensic sciences is a product of wholesale fabrication, which used enough in court creates a veneer of reality that eventually is believed by judges, juries and the publc.  Want to become a duct tape expert? Just create the American Society of Duct Tape Examiners, and put out the Duct Tape Science Review every quarter.  In no time, it will be real and you will be the foremost duct tape expert in the country.

When somebody is found with duct tape on their nasty dead body, you will be the first person GMA calls for comment. Make sure you have a clean suit available.  And this really cool certificate.

The word “sorry,” in all its varied permutations, raises all sorts of problems when there’s  war going on.  If the words are said, it blunts the anger. It makes the speaker appear kinder, and forces the hearer to temper anger with grace or look lose the moral high ground.

Of course, it’s also an admission, if not handled gingerly.

Mark O’Mara handled it with skill. He put Zimmerman on the stand in a bail hearing to speak the word. From the New York Times :

“I wanted to say I am sorry for the loss of your son,” Mr. Zimmerman, 28, said in a soft voice from the stand, dressed in a dark suit, with his hands locked in cuffs, and shackles at his feet and waist. “I did not know how old he was. I thought he was a little bit younger than I am. And I did not know if he was armed or not.”

The lawyers for the Martin family immediately attacked Zimmerman’s apology,

Describing Mr. Zimmerman’s apology from the stand as “self-serving,” Mr. Crump said he considered it a ploy to help win his release from jail and curry favor with the court and the public through the news media.

This may well be true, but it was a damn fine ploy.  And a ploy that the Martins handed Zimmerman, and O’Mara, on a platter.

Mark M. O’Mara, Mr. Zimmerman’s lawyer, said he had asked that Mr. Zimmerman be allowed to apologize privately to the parents, but the request was rebuffed. He said Mr. Zimmerman wanted to answer the three questions that he had heard Mr. Martin’s mother raise during a television interview.

“He answered very specifically the three questions posed by the mother: Why haven’t you apologized? Did you know he was a teenager? And did you know he was unarmed?” Mr. O’Mara said.

The Martins teed up the ball, and Zimmerman hit it out of the park, whether you buy the apology or not.  After news broke of the hearing, my old pal Dan Abrams was on TV non-stop talking about how shocking this was, that Zimmerman said he was sorry.  Danny said that in his experience, such a thing had never happened before.  This was curious, given that his experience was limited to sitting in a TV studio with a camera aimed at his head.

It seems too obvious for words that this is not your garden variety criminal case.  While no case is garden variety, but just treated that way by lawyers and judge, this one really stands apart for the curious facts and overkill attention.  As much as this type of attention will wreak havoc with the system, it similarly offers certain opportunities for an adept lawyer to use it to his advantage. O’Mara did so deftly. 

Unlike Dan Abrams, O’Mara saw beyond the routine and came up with a way to seize the opportunity to make one of the most hated men in America a kinder, gentler guy.  It was a brilliant move.

Was Zimmerman’s apology sincere? Who knows. There’s no way to know what he feels.  Some of you will be so ridiculously arrogant as to argue one way or the other. You don’t know. I don’t know.  He may well have gained a benefit from sitting on the stand and saying sorry, but that doesn’t mean it wasn’t real.  Don’t try to guess, It only makes you look foolish.

What you should appreciate is how Zimmerman’s lawyer seized the opportunity to use the “sorry” card to his advantage, regardless of whether it was sincere.  When a defendant doesn’t say sorry, it’s the first thing thrown in his face by the family of the victim. They hold the natural high ground, having suffered grievous loss without any possibility of fault.  They almost can’t say the wrong thing.  Almost.

A huge problem that arises when they complain about the lack of apology, then refuse to let the defendant apologize. It’s the one thing a victim/family can’t do, be disingenuous.  The Martins’ lawyer, Benjamin Crump, is busy screaming about Zimmerman putting on a show for the media and the judge, which may indeed be true, but he made the show not only possible, but a sure-fire hit.

As cases receiving exorbitant media attention are frequently a great place to learn what not to do, this one stands in stark contrast at the moment.  As much as the media can be a nightmare, it can also offer opportunity for the lawyer who keeps his eyes open and sees the chance to exploit a weakness in the news cycle.  If you look at it like Dan Abrams, devoid of thought, understanding or originality, you will never see these opportunities.

Mark O’Mara saw it and seized it.  No one can ever take Zimmerman’s apology away from him. It’s been said, and it’s now a permanent part of the narrative. Well done.

Three days ago, Julian Heicklen advised SDNY Judge Kimba Wood  Judge Wood agreed.

Not so much with Heicklen’s letter, which wasn’t worded in such a way as to ingratiate him with the court, but that the charge must be dismissed.

But the judge, Kimba M. Wood of Federal District Court, wrote that a person violated the jury tampering statute only when he or she knowingly tried to influence a juror’s decision through a written communication “made in relation to a specific case pending before that juror.”

Judge Wood added that she would not “stretch the interpretation” of the statute to cover speech that was “not meant to influence” a juror’s actions in a specific case.

This was a difficult case.  Not necessarily because it raised such difficult issues of law, which makes one wonder what the heck U.S. Attorney Preet Bharara was thinking when he authorized this insanely foolish prosecution that couldn’t possibly end well for him.  That didn’t necessarily mean it would end well for Julian either.

Julian Heicklen did every thing in his power to lose this case.  He did things others wouldn’t even dream of to antagonize everyone involved, from the judge to the lawyers who served his interests, despite his refusal to cooperate and seizing every opportunity to make their job impossible. Talk about a difficult client.

Given the circus-like atmosphere of this case, and Julian’s conduct throughout, it either tested Judge Wood’s patience or gave her chambers some great laughs.  I suspect the latter.  It’s hard to stay angry at a fellow who opens his letters, “Dishonorable Judge Wood ” and closes them, “Yours in disgust and hatred.”  Come on, this is good stuff.

Despite all the shenanigans, the legal team never stopped doing its job, and Judge Wood made the right and reasonable decision.  Julian Heicklen will be in front of 500 Pearl Street come next Monday handing out jury nullification leaflets.

A bit after mid-day, he will break for a victory luncheon in honor of the lawyers he discharged three days ago, He’s inviting restaurant suggestions and his fellow “tyranny fighters” to join him.  Bring money to pay for lunch.

As for the significance of this decision, Julian Heicklen said it best in his email to his tyranny-fighting friends:

One small step for a shabby old man, but a giant leap for justice and our country.

Whether this is true has yet to be seen, but you gotta admire Julian’s sense of humor. I wonder if everyone else involved in this case will agree.

Kids are cute. So are puppies. Stories about kids and puppies warm our hearts. Except when the stories are about  kids arrested or puppies killed.

There is a constant struggle in writing about the never-ending stream of seemingly inexplicable things that happen in the law. Should the story be funny or absurd? Should it be outrageous and angry? Many in the blawgosphere have chosen to write short blurbs rather than analysis, both because it’s a lot easier than the unnecessary effort of thinking and people enjoy reading short blurbs more than lengthier posts.  Bites of information are enough. Small bites are even better.

There are times when the posts here leave me feeling rather morose.  That a kid was arrested or a puppy killed almost always carries a message or lesson, and the failure to discuss it reduces a writing to an amusement.  I’m not here for your amusement.  There are plenty of others who can entertain you, appeal to your bias, feed your insanity or provide easily digestible bits of information without requiring you to expend any effort in thinking. Not me. Not here.

But then, humor and brevity are virtues as well.  Many points are best made using humor, and the point, well, is to make the point.  If humor is the most effective delivery method, why not?

And what purpose is served by boring a reader with labored rhetoric when ten words will do?  If the point can be made in fewer words, then only a crappy writer would use more.

These are issues I’ve been struggling with lately. A lot of blogs have strayed from thoughtfulness into the easy realm of aggregator, listing a string of stories of interest with no value added.  Others relate stories that are funny or ironic, though the subject isn’t always well-suited to humor.  Some have become soapboxes of self-indulgence, intellectually dishonest in their analysis and serving only to promote the writer’s point of view to those stupid enough to blindly accept it.  And others are just crap.

When  Kevin Underhill wrote about a 6 year old Georgia girl who was taken from school in handcuffs, he found the humor in the fact that this was how the cops dealt with a little girl. 

• Police in Milledgeville, Georgia, said they don’t discriminate when it comes to detainees, all of whom get handcuffed and taken to the station in the back of a squad car. That includes “age discrimination,” the chief said, explaining why his officers  cuffed a six-year-old girl who was throwing a tantrum in her kindergarten class. The girl was charged with assault and damage to property, “but will not have to go to court because of her age.” That’s because SHE IS SIX.

Does it really require any more analysis? Apparently it does, as Kevin felt compelled to update his post:

• Update: Some think cuffing the six-year-old might have been a reasonable response under the circumstances, and I guess I should defer to those who have children or have been attacked by some. It isn’t the cuffing that really bothers me, to be honest — personally, I think children should be kept in a pit until they turn 18 — but rather what seems (at least at first glance) like an overreaction by police and administrators. But maybe in this case there was truly no other choice. Well, there’s always the pit, or a quick tranquilizer dart and then the pit, but maybe no other reasonable choice.

It kinda sucks some of the fun out of the post, and as soon as that happens, the message sent via humor is not merely lost, but subsumed by the mirthless.

In his ongoing series on Puppycide, Radley Balko does the dirty deed of not letting the needless shooting of a puppy go unnotice.  At first, there was some discussion of how and why this happens.  Now, that it happens is enough, with barely a dozen words needed to amplify the message.

In audio captured on Officer Griffin’s dashboard camera, you can hear the officer give Paxton commands to put his hands up and to control his dog. Austin police removed a few seconds of the tape where Griffin fatally shoots the dog.

“Why didn’t you get your dog when I told you to get your dog?” questioned Officer Griffin.

Is it really necessary to parse the details so that readers understand that the guy can either put up his hands or control his dog, but not both?  The dog was doomed, and Paxton couldn’t be sure he wasn’t next.

On the bright side, the issue of how to present stories that need airing, issues that people ought to think about, can at least be considered because guys like Kevin and Radley do the cooking so you can easily digest their feast. 

So many others are feeding you spam, hoping you’re too stupid to realize that it tastes awful. The blawgosphere is becoming a fast food strip mall, and that seems to be good enough for most people.  If so, what’s the point of serving up anything that takes some effort to digest?

The saga of Queens Supreme Court Justice Joel Blumenfeld’s attempt to do his job in the face of District Attorney Richard Brown’s attempt to stop him has taken some  odd twists and turns along the way, but finally resulted in a decision. 

Brown’s writ of prohibition was denied last October, in a curiously cautious decision, freeing Justice Blumenfeld to rule on the propriety of the scam used to get defendants to give up their constitutional right to remain silent. Via  Dan Wise at the New York Law Journal, the decision is in :

Acting Supreme Court Justice Joel Blumenfeld (See Profile) ruled on April 16 that the Queens district attorney’s program of interviewing suspects while they are awaiting arraignment is “misleading and deceptive,” and violates New York State’s Rules of Professional Conduct.

Blumenfeld found the interview process deceptive because it “misleads the defendant into believing that the prosecutor is there to help him out” by suggesting that the prosecution will investigate “his side of the story.”

But, the Queens judge said, “none of that occurred here.”

Of course “none of that occurred here.” It was a lie. A scam. A ruse to get the defendant to make a statement by deceiving him into believing that the prosecutors were just a bunch of nice guys trying to help the defendant out by, you know, being fair and all. Because, well, that’s just the type of guys they are. Sweet.

Rather than suppress the statements obtained by deceiving the defendant, Justice Blumenfeld imposed the remedy of “preclusion,” meaning that the statements couldn’t be used by the prosecution in their case in chief.  And this is exactly what Brown feared.  With good reason.

In a statement issued after the ruling, Brown laced into Blumenfeld for inventing “a remedy of his own creation to ‘preclude’ the introduction of the statement that he could not legally ‘suppress’—a distinction without a difference but one that was selected in an apparent attempt to thwart any further appellate review.”

Brown continued, “His ruling is exactly as we had predicted in our prior Article 78 proceeding.” He called the decision “an attack on our office’s ethics done in a manner designed to prevent us from defending ourselves.”

Brown’s ire at this “attack” on his office’s ethics would resonate better but for the fact that the deception was outrageously unethical.  If there was any doubt, consider the statement by John Ryan, his chief assistant:

Chief Assistant District Attorney John Ryan vowed in an interview after the brief court session to pursue an appellate remedy and said the office had no intention of dismantling the interview program, which started in 2007. Since then, 9,744 suspects as of April 6 have been interviewed, of whom 63 percent either confessed or made a statement about the crime, according to statistics provided by the district attorney’s office.

The problem isn’t that the program has any ethical justification whatsoever, as it’s artfully designed to subvert the 5th Amendment rights of defendants and circumvent Miranda.  No, the problem is that the program is really effective, and they get a lot of confessions from it.  Of course, it would be really effective too if the cops could just break into houses at will to search for bad stuff inside.

Despite the length of time it’s taken for a judge to rule on the impropriety of this scheme (of which variations are still being employed elsewhere to get defendants to talk rather than exercise their right to remain silent), it’s still not over. What the Appellate Division, Second Department will do with it remains to be seen.

In the meantime, it’s important to note that this deceptive conduct, this scheme to screw with defendants by deceiving them into thinking that their statements could set them free, was ignored when challenged until Justice Blumenfeld showed the courage to do his job. 

This particular case has been going on since 2009. How many defendants have been deceived since then to get them to talk?  How many more will do so while this issue makes its way through the system?  And “Get Down” Brown is worried about his office looking bad?