According to Raymond Wiss, the attorney for the Bogota, New Jersey Police Department, the only reason for seeking the discharge of Officer Regina Tasca was her “bizarre and outlandish” conduct.  While it’s not clear why he chose the word “outlandish,” her conduct most certainly was bizarre.

Plenty of cop “beat downs” can be found online, but how often does the officer who stops others from handing out the beating get fired for it? That’s exactly what’s happening to Officer Regina Tasca in the Bogota Police Department.

Tasca’s dashboard camera captured her as she attempted to stop two officers from beating an emotionally disturbed young man. Just days after the incident, she was told she was being suspended with pay. A year later, her trial is about to begin as the Bogota PD seeks to fire her.

Tasca described what we see on the videotape: “The Ridgefield Park officer automatically charges and takes him down to the ground. I was quite shocked. As he’s doing that, another Ridgefield Park officer flies to the scene in his car, jumps out and starts punching him in the head.”

On the tape you can hear Tara, the mother, and Kyle, her son, screaming, “Why are you punching him?” and “Stop punching me!”

The two Ridgefield Park Sergeants are never heard refuting the claims that they punched the 22 year-old man as he was waiting for an ambulance.

Even worse, Kyle was never charged, nor arrested, for any offense. Tasca says it’s because he never threatened, did not have a weapon, and indeed never resisted and was not violent. Eventually Tasca was able to pry the punching Ridgefield Park officer off Kyle…

It isn’t just that cops don’t rat out other cops, it’s that those who do obviously have psychological problems. It’s a chilling thought. It also sends a pretty clear message to other well-meaning cops. Cross the blue line, and you may not only lose your job, we’ll also publicly question your sanity.

If the New York City police department is a festering cesspool of racism, why is it that African American police officers (of which there are many) don’t stand up and say something?  Well, this time they are.  From the Daily News :

There was outrage across twittersphere the other day, when news broke that @Sir_Olly_C was convicted in the Motherland for using a nasty word.

I’ll repeat that shall I … if only to try and convince myself that I’m not dreaming … calling someone the C word is a terrible crime that will see you in court, prosecuted, found guilty and facing a custodial sentence. That’s official because the blogger and tweeter, Olly Cromwell, has today been found guilty under Section 127 of the Telecommunications Act 2003 of making a grossly offensive and menacing comment on Twitter.

Apparently, Olly called a Bexleyheath councillor a cunt, on Twitter, and a District Judge has now referred Olly To Bromley Court for sentencing. The prosecution are asking for a custodial sentence equal to 45 days for each letter.

This, of course, didn’t happen in the land of the free, but where Anglo-Saxon reigns. Aside from thinking ill of George Washington, the Brits have no cherished First Amendment, their freedom of expression stemming from noblesse oblige rather than than any inalienable right.

And yet, as nasty language on the internet crosses borders, some of which may include the use of words for which more delicate souls feel compelled to substitute asterisks for letters lest eyes pop out and heads explode, what happened to Olly Cromwell under whatever passes for law in England is a matter of concern to all.

The word at issue is a particularly unpleasant one. I don’t care for it, personally. I wouldn’t use it in my writing under most circumstances. But because it’s at issue here, it needs to be done: cunt. No asterisks, as if that somehow permits sensitive teacups to pretend their eyes haven’t truly happened upon this word.  It’s a collection of four letters. It’s a word like all the others we use. For whatever reason, it sounds foul to most of us. But it’s still just a word.  Have we learned nothing from Lenny Bruce?

As it turns out, this story, like most, is somewhat more (and less) involved than first appears.  At Beneath the Wig, Brit blogger Wiggy (who goes by the twitter handle @_MillyMoo. I suspect she has a real name, but I can’t find any indication of it at her blog and it says only “Milly B” on twitter) offers the substance of the charge.

 Has there been an assault on freedom of speech? Is a man about to go to jail for swearing on Twitter? Should indeed the Bexley one, John Graham Kerlen*, who tweets under the name @Sir_Olly_C, be freed, although he has not yet been sentenced? Is this a ‘bad law’ story demonstrating that the law is, as it sometimes can be, an ass, or is the story more complicated than may at first appear?

John Graham Kerlan was found guilty on Friday 13th April of an offence contrary to s127 Communications Act 2003…

Notably, Milly has outed the foul-mouthed perpetrator, though his name plays no particular role in what happened.  This wouldn’t be worth noting, except that Milly B, or Millymoo, or Wiggy, or whoever, writes under a pseudonym.  If names are going to be named, start with yourself.

So what heinous conduct was committed by Kerlan in violation of British law?

The conviction relates apparently to two tweets, posted by Mr Kerlan. The first was a picture of a house belonging to a Bexley councilor, saying:

Which c*** lives in a house like this. Answers on a postcard to #bexleycouncil.

The second said:

‘It’s silly posting a picture of a house on Twitter without an address, that will come later. Please feel free to post actual shit.’

Also worthy of note is that Wiggy/Milly replaced three letters in the first twit with asterisks, though it’s unclear whether this was in deference to the delicate sensibilities of her readers or a reflection of her own hatred of letters.

The test of whether these twits break the law is, per Wiggy/Milly, the “reasonable man” test, apparently because they have no reasonable persons in Britain.  Attributing reasonableness to herself (particularly troubling when the self-ascribed reasonable man is pseudonymous), Milly/Wiggy concludes:

The test for ‘grossly offensive’ is whether the message would cause gross offence to those to whom it relates, regardless of whether they were the recipient.  Would the reasonable man, looking at that, be able to say that the person to whom those tweets relate, would find them grossly offensive? I’d say so.

Are they menacing? Would the reasonable man, looking at those tweets, consider that the person to whom then related would find them menacing? Again, I’d say so – I certainly would.

Guilty!  Not, as the Philistines on twitter cry, because Kerlan uttered the c-word, but because the word “cunt” struck Milly/Wiggy as “grossly offensive.”  While she posits that the test is the reasonable man, what she argues is that the test is “whatever I personally find grossly offensive.”  And as the use of asterisks suggests, Wiggy/Milly’s threshold is fairly low.

But what of freedom of speech, you ask? 

Finally, turning to the cries of assaults upon freedom of expression, it has to be remembered freedom of expression is a qualified right. The higher courts have already considered the balancing of freedom of expression with section 127, and came to this conclusion:

‘Section 127(1)(a) does of course interfere with a person’s right to freedom of expression. But it is a restriction clearly prescribed by statute. It is directed to a legitimate objective, preventing the use of a public electronic communications network for attacking the reputations and rights of others. It goes no further than is necessary in a democratic society to achieve that end.’

Lord Bingham, DPP v Collins ( here ).

This is where we come to an appreciation, however small, of our founder’s inclusion of freedom of speech in the Bill of Rights, a fundamental distinction that we may not sufficiently appreciate in the absence of such a stark contrast as that quoted by Milly/Wiggy.

The Brits adore free speech, until it rankles someone, at which point it’s a crime. The restraint is “directed to a legitimate objective” of not attacking the reputations and rights of others. And if your purpose is to attack the reputation of others because they deserve to have their reputations attacked?  Crime.  And what rights of others are at stake, the right not to be called a nasty name?  Is any of this sounding familiar?

In summary, swearing on Twitter is not a crime. Frankly, only a silly c*nt would think so. But being menacing, or being grossly offensive? That is.

Before you laugh at this gaping intellectual void, consider that this is precisely what  legislature after legislature is trying to do across the country.  And just like Wiggy/Milly, they attribute reasonableness to themselves as well, at the expense of a firm grasp of what constitutes free speech.

*  It’s unclear whether the name is Kerlen and Kerlan, as Milly/Wiggy uses both spellings.

Update: Ask and you get answers.  It appears that Wiggy/Milly is Amanda Bancroft, who writes on this subject at The Guardian.  Her bio there says:

Amanda Bancroft is a former practising barrister who has a keen interest in legal issues. She blogs at Beneath the Wig and is putting together the 58% Campaign, aiming to educate on the whole picture of rape.

Perhaps this has a little something to do with her finding a word “grossly offensive?”

Update 2:  On twitter, Amanda asserted that this post was “a somewhat unfair representation” of her argument, so I  invited her to correct me:



I include an image lest I be accused of further misrepresentation. I hate to misrepresent. It speaks poorly of me.

Sadly, after announcing that I had misrepresented her and that she would correct me, there was nothing forthcoming.  I expressed my disappointment to my pal Antonin Pribetic, the Trial Warrior.



And why bother, you wonder, to update this post to include this exercise in passive-aggressive denial? Amanda, the former practicing barrister, has chosen to play legal pundit on the internet, a fine endeavor in itself but one that subjects her views (and particularly her self-described reasonableness in contrast to all who disagree, who are by definition unreasonable) to scrutiny.

We are awash in the blawgosphere and the media with punditry, much bordering on horribly bad and some the absurdly, dangerously ignorant.  If someone thinks their opinion worthy of publication, so valuable that others should read it and heed it, then they can’t whine about it being subject to criticism.  And it’s fine to disagree with the criticism, but then you have to actually say something.

The blawgosphere is getting increasingly inundated with bad advice, flawed reasoning, and in some instances, utter lies and deceptions.  It makes people stupider. Amanda didn’t help, either herself or anyone else. 

You don’t remember Hawley? He was the head of the Transportation Security Administration way back in 2005.  And now he’s talking.  From the Wall Street Journal :

Airport security in America is broken. I should know. For 3½ years—from my confirmation in July 2005 to President Barack Obama’s inauguration in January 2009—I served as the head of the Transportation Security Administration.

You know the TSA. We’re the ones who make you take off your shoes before padding through a metal detector in your socks (hopefully without holes in them). We’re the ones who make you throw out your water bottles. We’re the ones who end up on the evening news when someone’s grandma gets patted down or a child’s toy gets confiscated as a security risk. If you’re a frequent traveler, you probably hate us.

Or if you’re a child, or disabled or a parent. Or if you’re elderly or prefer not to have strangers’ fingers touching your breasts or your vagina. Or if you breath.

Hawley goes on to explain why, as pretty much everyone not receiving a government paycheck already knows, airport security is a game played for the benefit of grocery clerks and blue-shirts, with the very best of bureaucratic intentions, all at the expense of the flying public.

More than a decade after 9/11, it is a national embarrassment that our airport security system remains so hopelessly bureaucratic and disconnected from the people whom it is meant to protect. Preventing terrorist attacks on air travel demands flexibility and the constant reassessment of threats. It also demands strong public support, which the current system has plainly failed to achieve.

The crux of the problem, as I learned in my years at the helm, is our wrongheaded approach to risk. In attempting to eliminate all risk from flying, we have made air travel an unending nightmare for U.S. passengers and visitors from overseas, while at the same time creating a security system that is brittle where it needs to be supple.

In 2012, Hawley offers insights. In 2012, of course, Hawley has no control over much of anything.  Two questions emerge:  Why is Hawley so much smarter now than he was from 2005 to 2009, when he was in charge of the TSA?  Why did it take Hawley so long to grow a pair and show the guts to speak up?

Hawley goes on to explain how we arrived at such a sorry state of affairs, a crisis bred fear. Fear bred a knee-jerk demand for safety, but there was nothing in place to accomplish the security sought. So the government largely made it up, doing what seemed like a good idea at the moment.  Today, we attribute the birth and growth of TSA screening methods to venal motives.  According to Hawley, it was just plain, old stupidity. They had a problem and no real clue how to solve it. So they just made stuff up that seemed, to a bunch of people who had no real clue, like it ought to work.

The procedures then became part of the bureaucratic myth, the internal inertia that once done cannot be undone.  It became what they do, and they did it, and we suffered for it.

Most fascinating is that the concern wasn’t to seek the input and methodology of security experts, but rather management consultants to speed up the lines.  Rather than ask the question, why are we doing this, the primary focus was how can we make people hate us less.

The airport checkpoint as we know it today sprang into existence in spring 2002, over a month and a half at Baltimore/Washington International airport. New demands on the system after 9/11, like an exhaustive manual check of all carry-on bags, had left checkpoints overwhelmed by long lines and backlogs. A team of management consultants from Accenture delved into the minutiae of checkpoint activity at BWI: How long did it take to pass from one point to another? How did the behavior of travelers affect line speed? How were people interacting with the equipment?

After all, if they could move people quickly, the initial complaints about long lines and delays would make the larger issues disappear.

Clearly, things needed to change. By the time of my arrival, the agency was focused almost entirely on finding prohibited items. Constant positive reinforcement on finding items like lighters had turned our checkpoint operations into an Easter-egg hunt. When we ran a test, putting dummy bomb components near lighters in bags at checkpoints, officers caught the lighters, not the bomb parts.

I wanted to reduce the amount of time that officers spent searching for low-risk objects, but politics intervened at every turn. Lighters were untouchable, having been banned by an act of Congress. And despite the radically reduced risk that knives and box cutters presented in the post-9/11 world, allowing them back on board was considered too emotionally charged for the American public.

Missing from Hawley’s epiphany is that he was made the head of the TSA, a position where he could have come forward to announce to the world, as he does here, that we’ve created a system that serves little purpose while simultaneously making the lives of millions miserable.  He whines about the bureaucracy, the politics, the hard work of being a TSA screener, but he does it now, three years after he’s left office.

Airport security has to change. The relationship between the public and the TSA has become too poisonous to be sustained. And the way that we use TSA officers—as little more than human versions of our scanners—is a tremendous waste of well-trained, engaged brains that could be evaluating risk rather than looking for violations of the Standard Operating Procedure.

So Hawley concedes that he presided over a bureaucracy that institutionalized failure at the expense of Americans, yet never uttered a negative word.  Of course, in 2012, he’s got plenty to say.  It’s just that he’s got neither power nor authority to do a damn thing. 

For those of you who were subjected to the humiliation, degradation, and perhaps even prosecution for not showing the TSA the respect and admiration the blue-shirts demanded, no doubt you feel vindicated by Hawley’s revelations.  And you can feel that way until your sentence is completed or the psychological trauma subsides.  Meet Kip Hawley, another American hero who comes clean just a bit too late.

H/T Amy Alkon, The Advice Goddess

The maxim says it all, you can beat the rap but you can’t beat the ride. (Source? I think it was a line from the TV show Baretta, but I can’t find any authoritative source for a line that’s become fundamental to criminal law.)

In a fascinating article at HuffPost, Radley Balko raises some tough questions. Despite the trendy hook relying on the Z-word to capture your interest, it goes on to raise more serious questions about the interrelationship between the moment you find yourself on the wrong side of a cop and the life-altering reality of becoming embroiled in the criminal justice system.

The power prosecutors have to charge people with crimes is often overlooked. While probable cause is the minimum standard police officers need to make an arrest and the minimum standard to convict is beyond a reasonable doubt, the question is where the power to charge should be between those two extremes.

*  *  *

Currently, the accepted standard to bring a charge against anyone is probable cause, the same minimal standard needed to make an arrest. That standard remains the same from the time the charge is brought until the time the judge turns the case over to the jury to reach a verdict.

This reflects a somewhat skewed understanding of how the system is meant to work.  While the standard required of a police officer for an arrest is probable cause, the fact that a cop has arrested someone isn’t (or more accurately, shouldn’t be taken as) a conclusive demonstration that PC exists.  Between the moment of arrest and the initiation of the prosecution, there are three independent steps.

First, the cop decides for himself that he has probable cause to believe a person has committed a crime.

Second, the cop brings his belief to a prosecutor, who then drafts the accusatory instrument. The prosecutor, whose duty is to “do justice” rather than acquiesce to the cop’s determination, then vets the cop’s allegations to decide whether, and to what extent, a crime has been committed.

Third, the prosecutor presents the accusatory instrument to a neutral magistrate at arraignment, The neutral magistrate, as part of the process of arraignment, must determine whether the accusatory instrument is facially sufficient to proceed with the prosecution.

If the system worked as conceived, probable cause would be considered three times before the initiation of a prosecution.  Of course, the system rarely works as conceived.  Initially, there is a problem with the very words, probable cause. Like  most language used to express an idea, we think we know what it means because we say the words often enough, but we’ve merely become desensitized to them.

Despite the somewhat obvious meaning of the word “probable,” meaning more likely than not, probable cause was mucked up by the Supreme Court in Texas v. Brown, as  Jeff Gamso likes to remind me.

Except, of course, that the Supremes have said (Texas v. Brown, plurality opinion that everyone quotes favorably) that probable cause, whatever it actually means, means something less than “probably.”

“As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ Carroll v. United States, 267 U. S. 132, 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U. S. 160, 176 (1949).”

This raises some hugely disturbing problems, in that the standard is so utterly fuzzy, so worthlessly subjective, as to cover all but the most flagrantly baseless accusations.  It need not be “probable,” as the word is normally defines, nor even likely true.  As is typically the case, the language used, “a flexible, common-sense standard,” provides essentially no guidance. 

That the cop has decided he has probable cause to arrest is a given, since the decision not to arrest would be the end of the discussion as there would be no prosecution.  While we don’t hear about non-events, it happens that a police officer decides to exercise his discretionary authority to not pursue an arrest.  How often is impossible to say, but it happens.

When the cop brings the case to the assistant, usually a new attorney who is cutting their teeth at arraignments and is often somewhat awed by the veteran cop who “knows stuff” that the prosecutor doesn’t, it’s left to this rookie to write up the charges.  Often, the charge for which the arrest was made isn’t the same as the charge(s) that appear in the accusatory instrument.  The prosecutor converts the cop’s factual allegations into legal ones, noting what elements of crimes are met and then charging accordingly.

The prosecutor has the authority to toss a case, to decide that the cop’s claims fail to make out a crime, or that the evidence is so bad that the case is going nowhere.  This happens sometimes, and the putative defendant is told, usually without explanation, that he’s free to go. 

During this phase of vetting, the prosecutor’s job isn’t so much to second-guess the cop, but rather to consider the facts in light of the elements of a crime and substantial evidentiary rules.  Of course, if he has reason to believe the cop is lying, that too would be a pretty good reason to toss a case. At this stage, the prosecutor is a theoretical neutral in the process, deciding whether to use the awesome power of his office if it serves the greater interest of justice.

Finally, the accusatory instrument is presented to the court, where a judge is supposed to serve as the ultimate gatekeeper of the courthouse.  The judge is expected to be a true neutral, with no allegiance to either side and no interest in seeing a prosecution proceed or not, other than as the law requires.  Upon reading the accusatory instrument and considering whether the allegations of fact are sufficient to give rise to probable cause to believe that each element of the offense, the judge can stop a prosecution dead in its tracks at that moment. Indeed, the judge is the stop-gap, the fail-safe, for the person who is about the enter one of the worst times of his life. 

The problem with this very nice, very sanitary discussion is that the process doesn’t necessarily happen this way.  Radley attributes this to a need for a higher burden before subjecting a person to the rest of the ride (since courts have refused to do much of anything to eliminate the first 24 hours or so of hell, from arrest to arraignment).  I have little faith in amorphous legal standards to begin with, and am firmly of the view that all the players in the system can ignore a higher standard just as easily as they ignore a lower one.

Not that I have anything against a higher burden before subjecting a person to the nightmare of prosecution, but the fundamental problem with the system as it currently works is that it relies on each of the players faithfully performing the duties of their office.  Until that happens, and happens in every case, the system fails. No standard, no matter how clear or vague, high or low, is going to make a system work when those charged with protecting people from baseless prosecution close their eyes and pass their responsibility down the line.

For a while, the big question was whether it was appropriate for someone to write a comment when they were too frightened to put their name to it.  Ah, the good old days.  Then it was a question of the government gaining access to whatever it is you said, whether for its own account or on behalf of the person whose tush was hurting a bit.  Good times.

Quietly, however, we are doing to ourselves what no person, no government, could do to us.  Because of my lack of computer savvy, it took me a while to realize what was happening.  For those who know less about how this works than I, blogs (including blawgs) exist on a platform, a program created by someone else that makes the stuff we write show up looking cool (or not) on the internet. 

These programs include the part that allows a reader to comment, with whatever requirements the programmer decides ought to be included in there. Some programs allow the blogger to control the requirements, adding or deleting the information and/or verification needed of a commenter, or adding in some outside gizmo in place of whatever the program uses as its default.

As a reader of a few blawgs, I occasionally feel inclined to add a comment or two to what someone else has written.  In the old days, I could use my commenter name of choice, which has been my initials “shg” since pretty much the beginning, plus email and this URL. Sometimes there was a “captcha” requirement to keep bots away and limit spam, a problem far more troubling than most readers know.  You didn’t have to hear me curse as I deleted thousands of spam comments every morning.

Recently, this has started changing, with blogs refusing to allow me to comment unless I signed in through a service, such as a Facebook, Twitter or WordPress account.  The happy idea was that I could then broadcast the fact that I commented (Hey, everybody, look at me and my comment!!! How cool am I!!! Add me to your social network and follow me!!!  K+ me and I’ll K+ you back!!!) across my “social network.” 

This meant a few things, that my “name” as a commenter would be whatever name I used on the social platform on which I signed in, that my comments were aggregated via the social platform and that there was no easy way to be anonymous, if that was my intent.  But at least I realized that something stunk when I had to “sign in” to comment.  Signing in is a dead giveaway.

There was a more nefarious scheme afoot, however.   Kevin O’Keefe exalts its virtues.

Disqus is a commenting service for blogs, news sites, and online communities. Founded in 2007 by Daniel Ha (@danielha) and Jason Yan (@jasonyan), the platform includes various features, such as social integration, social networking, user profiles, spam and moderation tools, analytics, email notifications, and mobile commenting.

We’re using Disqus on all LexBlog blogs which have upgraded to WordPress, mine included. One, because it works pretty well (with some WordPress integration bugs) and two, because of our building an online network of lawyers from around the world (LXBN), which could be done in part through tracking comments and profiles through Disqus.

What he’s saying is that for those of you trying to create a unified marketing presence on the internet, where your every happy word and smiling face is available at a click for anyone to find, Disqus magically makes it happen.  After all, why comment in the blawgosphere, or really anywhere on the internet, if not for the purpose of adding to your carefully crafted internet persona so that other people can find you and love you?

Here’s my profile on Disqus. You’ll reach the profile when you click on my mug next to any comment I’ve left on LexBlog blogs which have been upgraded to WordPress as well on other blogs and news sites around the net.

So you can not only see what Kevin had to say on his own blog (RLHB), but all the other blogs that use Disqus as well.  One stop shopping for every comment you’ve written, regardless of whether you used your real name to comment or called yourself something else, like, say, Publius, Anon or Guest.

Not only are you unable to hide your identity on a comment, but you have provided carte blanche to every other blog at which you’ve commented and every word you’ve ever typed into the square comment block.  And you’ve given it away to everyone on the interwebz.

For some, with varied interests that bring them to different websites or blogs that have nothing to do with one another, and whose participants really have no reason to know about your various distinct interests, you now have no secrets.  Say you comment on legal blogs and happen to be a fan of My Little Pony (a/k/a a brony).  Perhaps you would prefer other lawyers and judges not being aware of your brony side, or any other peccadilloes that don’t involve them.  Tough.

For others, the idea that comments taken out of context (since clicking on our smiling face shows only our comments, not the post to which they’re directed or the other comments to provide context) could produce some unpleasant assumptions about us by those who may disagree with our comments or hate our guts.  Worse still, should we become the object of a nutjob, they could be copied and plastered across the internet with images of naked people. Never underestimate the damage a true nutjob can cause.

Whether you like it or not, you are now social, part of the grand and happy social network that promoters of the internet for purpose of marketing and selling believe will launch a billion businesses. In their eyes, this should make you happy, and happy people whose existence in the social sphere makes them want everyone to know and appreciate their internet existence and their every happy utterance, will love the new reality that anyone can find out anything they want about you because you have chosen to let a program like Disqus put it all in one place and make it all accessible to the world.

No government could compel you to give it up so readily, and yet we do so willingly because it’s the only way to get our little sliver of brilliance into the comment section of a blog.  If I don’t comment at your blog anymore, it may not be because your post wasn’t thoughtful and interesting. I just don’t plan to leave tracks everywhere I go.

For those who use words like “justice” and “righteousness” without contemplating their relativity, anticipate the non-stop flogging of the prosecution of George Zimmerman as if it’s this generation’s O.J.  As  Charles Blow (who I just learned is a fencing parent) writes:

Americans saw the anguish of the boy’s father and the tears of his mother. America saw a child who was its own. America saw its concept of basic fairness sinking in to the marsh of miscarried justice.

So America rose up. Thousands marched in the streets. Millions signed petitions online. Hearts poured out for justice to rain down.

This is a moment when America should be proud. The wheels of justice are finally turning. The State of Florida has taken up the cause of the dead boy. His life is no more, but his legacy will live forever.

The second degree murder charge of George Zimmerman has received widespread approval. I am in Fort Worth to speak to the Fort Worth Lecture Foundation this afternoon. However, I am receiving a lot of calls on the basis for the charge. I must confess that I am not optimistic on the chances of a conviction unless the special prosecutor has undisclosed evidence to meet the high standard under the state law.  As I discussed on BBC last night, there are substantial challenges to make such a charge stick in this case.

I’m in a rush, but I can’t avoid commenting on the affidavit of probable cause submitted in the matter of George Zimmerman’s shooting of Trayvon Martin.

It’s a piece of crap…

This is not the worst affidavit I’ve ever seen — but it’s damn close, and the decision to proceed based on it in such a high-profile case is stunning.

On Thursday, Zimmerman appeared in a Florida courtroom, and Corey released a simple but chilling affidavit for probable cause that painted a disturbing portrait of Zimmerman as a man who “profiled,” “followed” and “confronted” the boy.

At a time when some prosecutors not only fight to the death for their right to conceal exculpatory evidence, but deny it for as long as humanly possible despite the fact that a man sits in prison who, but for impropriety, shouldn’t be there, Oklahoma County District Attorney David Prater demonstrates the meaning of honor and integrity.

From his press release :

On March 15, 2012, an Oklahoma County jury convicted Billy Thompson of 1st Degree Murder at the conclusion of a trial held before the Honorable Donald Deason. The next day, I discovered that a potentially exculpatory statement made to Assistant District Attorneys Pam Kimbrough and Stephanie Miller by a witness to the original crime was not disclosed to defense counsel.

Within minutes of learning of the nondisclosure, I contacted Chief Public Defender, Robert Ravitz to notify him of the allegations. To ensure the integrity of our investigation into the alleged ethical violations of the ADAs, I invited Mr. Ravitz to jointly investigate the allegations. He accepted.

This may be the most remarkable initiative to come from the office of a prosecutor I’ve ever seen. Not only does Prater, without anyone outside his office having the slightest clue that Brady was withheld, come forward “within minutes,” but he names the individual prosecutors involved and includes the Chief Public Defender to participate in the investigation. 

In his press release, Prater includes the sort of language typically used to describe the distinct nature of the prosecutorial function:

Prosecutors must be different than any other type of attorney. We are not simply advocates, but are charged with a ministerial duty within the criminal justice system. We are duty-bound to seek justice, period. That duty includes protecting the constitutional and substantive rights of criminal suspects and criminal defendants. We must never abrogate that duty to the justice system we are privileged to serve.

The difference here, and it’s a difference with a huge distinction, is that this isn’t used in the typical prophylactic manner, making the right noises before heading off in the other direction as quickly as possible. Rather, David Prater means what he says.

To protect the integrity of this office, its dedicated employees and most importantly, our justice system, I have taken swift and definitive action. Pam Kimbrough and Stephanie Miller were terminated last Thursday. Though I am heart-broken over their loss to this office, my decision to terminate them was an easy decision to make. The gravity of their alleged ethical violation is so great that only one punishment equals their transgression. Additionally, I am forwarding our investigation to the Oklahoma Bar Association and the Oklahoma Attorney General’s office to assign a special prosecutor to evaluate the investigation for possible criminal violations.

Perhaps it would have been better had there been a culture in place that would have caused the assistants proactively to disclose Brady, despite the potential loss at trial.  But compare this to the reaction in New Orleans, where the argument coming from Harry Connick’s office, and affirmed by the Supreme Court in Connick v. Thompson, was that they were sufficiently brilliant to get convictions but so utterly ignorant as to have no clue that they were obliged under Brady to disclose exculpatory information.

Pam Kimbrough was no rookie, no throwaway who was easily jettisoned in order to create the appearance of integrity.  Via NewsOK :

Kimbrough was a veteran prosecutor who was team leader of the county’s domestic violence division. She was hired by Prater when he was elected to office.

There’s little doubt that it was indeed painful for Prater to fire her, but he did, and he did without hesitation.  It’s easy to say that unethical behavior won’t be tolerated. It’s a lot harder to do what needs to be done to make it real.

As reactions to impropriety go, District Attorney David Prater’s reflects a dedication to integrity that has never, to my knowledge, been seen before.  I will not diminish his actions by further commentary, but rather thank him for taking immediate and unambiguous steps to vindicate the violation of the defendant’s constitutional rights.

This is what it means to be an honest prosecutor.

H/T William Spielder

On the one hand, New York City Criminal Court Judge Matthew Sciarinno did what all judges do, and what all lawyers do as well.  He took the fuzzy rhetoric of precedent and held that the charges against Ronnie Nunez, arrested in Zuccotti Park as part of the Occupy Wall Street movement, were facially sufficient. 

The big constitutional issues, for example, were disposed of easily:

The defendant claims that he and others were exercising their first amendment right by setting up the tents and tarps. This argument is without merit. “The First Amendment does not offer absolute protection to all speech under all circumstances and in all places.” (Clark v. Community for Creative Non-Violence, 468 US 288, 293 [1984]). Even in public forums, reasonable restrictions on the time, place or manner of protected speech may be imposed, provided that the restrictions are content neutral, are narrowly tailored to serve a significant government interest, and leave open sufficient alternative channels for communication of that information. (Id. at 294; Thomas v.Chicago Park Dist. , 534 US 316, 323 n.3 [2002]). In Waller v. City of New York , the court found that Brookfield Properties has “the right to adopt reasonable rules that permit it to maintain a clean, safe, publicly accessible space consonant with the responsibility it assumed to provide public access according to law.” (Supra at 375). The court held that the petitioners had failed to demonstrate that the rules of conduct were not reasonable time, place and manner restrictions permitted under the First Amendment. On the contrary, the court reasoned that the rules appeared to be “reasonable to permit the owner to maintain its space in a hygienic, safe and lawful condition,” to forestall liability for torts or violations of law, and to permit public access to the park by those who live and work in the area. Id. This court agrees.

Persuasive? Eh. What it is not is clearly wrong (aside from his failure to use paragraph breaks), so that Judge Sciarinno is open to a smack down. It’s a safe, vague decision, hitting all the key words that keep it in the vast middle ground that prevent exposure to harsh criticism or reversal.

But Matthew Sciarinno, having ruled that the case against Nunez can proceed, added a tidbit on the back end that demands further attention.  He may have played it safe in the body of the decision, but the “rebel” within wouldn’t let him stop there.

While, this court recognizes that the intentions of numerous members of the OWS Movement are laudable, that does not arguably excuse one’s obligations to work within the lawful process allowed in our democratic society. The “99%” is clearly a majority and can make its voices heard in a legal, organized manner if that is its wish. No matter the alleged influence of the “1%” on the political process, at the end of the day it is the majority that determines those that have the privilege of governing this city, state and nation.

A very curious admonishment, utterly unnecessary to reach the decision that the show must go on, indeed.  A slight tip of the hat to the “intentions” of the movement, though one that he inherently qualifies by limiting it to “numerous members of the OWS Movement” rather than all involved or the movement itself.  A rather typical judge-like point about the “obligation to work within the lawful process,” which is always amusing given that our nation’s existence derived from revolution.

But the strongest piece of the lecture, and the one best grounded in reason, is that “99% is clearly a majority and cam make it’s voices heard . . . if that is its wish.”  It’s a damn good point.

While the disaffected usually assume the mantle of speaking for the downtrodden masses, the masses don’t always agree.  The disaffected explain this cognitive dissonance as ignorance or fear, and that if only the masses understood how they were speaking for them, doing what’s best for them, they would lock arms as well.  Yet it doesn’t seem to either work out that way, or that easily.

We’ve had some efforts to create grassroots movements, ranging from the Tea Party to OWS.  They each gain followers and momentum, but still they struggle to have a coherent message beyond the same platitudes that are chiseled into the lintels over government doorways.  “Justice is Good” type maxims.

Whether the problem is that a pluralistic society is no longer capable of reaching a consensus, given that it’s comprised of too many narrow interest groups whose belief, though occasionally overlapping, never seem to be coterminous, or that we just have different priorities, and are unwilling to give up what matters to us in order to form a more perfect union, isn’t clear.

What is clear is that OWS, like the Tea Party, had a chance to let the nation know what it stood for and to rally support to buck the existing power structure.  Both made a splash. Neither won the day. And as we run headlong into our next presidential election season, little has changed.

Even though I found the message of OWS lacking (which always compels someone to “explain” it to me, while pointing out that I’m thick as a brick for neither getting it nor embracing it with every ounce of my being), I respect, no, admire, the political fervor of its proponents.  It’s good that people care. It’s great that people are willing to sacrifice their comfort and convenience to take a stand.

Part of what the “members” of the movement sacrifice is the right to be free of the constraints of the legal system and those who enforce it.  In the ’60s, protestors were arrested. Some were shot. Some were killed. They gave their life for a cause in which they believed, no matter how silly it all seems more than 40 years later.

If the OWS movement represented the 99%, they wouldn’t have to take to sleeping bags in Zuccotti Park. They would rule this country.  That they don’t reflects the problem with having a great slogan without the backing to make it happen.  And so some will be prosecuted for what they believe in. That’s how protest works, fighting the powers that control the ground and suffering for your beliefs, even when the 99% doesn’t agree.

H/T Eugene Volokh

When  Radley Balko mentioned the video of Collinsville  Police Officer Michael Reichert conducting a manipulative baseless search of nerd Terrance Huff, it fit into a sort of funny, sadly mundane sort of paradigm. Another cop stopping a guy for nothing, playing the game, coming up empty other than to find his name smeared on the internet for reducing constitutional rights to a joke doing his job.

But the Collinsville Chief of Police, Scott Williams, was feeling a bit butthurt from the Radley’s HuffPo commentary, and did the one thing no top cop ought to do. He responded.