Since the opinions were released yesterday morning, the blawgosphere has cranked out a ton of posts about what the  Jones v. United States decision means. The majority decision was written by Scalia, with concurrences by Alito and Sotomayor. While it was 9-0 on outcome, it was anything but on rationale.

The shorthand reaction broke it down this way:

The Scalia opinion had the support of Chief Justice John G. Roberts, Jr., and Justices Anthony M. Kennedy and Clarence Thomas, in addition to Sotomayor’s notation that she joined it.  It thus did represent a majority declaration.  No other Justice joined the Sotomayor concurrence.  The Alito concurrence was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Elena Kagan.

Orin Kerr, whose article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004), was cited by both the majority and the concurrence, wrote a bevy of posts about it, trying to make sense of it.  Others, who didn’t want to think so hard, wrote simply that the Supreme Court held that the use of GPS tracking device requires a warrant, a view that shows why internet pundits can’t necessarily be trusted.

The best analysis of the varying positions on the court was written by Tom Goldstein at SCOTUSBlog :

Here is the upshot.  Five Justices join the holding of the “majority” opinion (per Scalia) that by attaching and monitoring a GPS device the police conduct a “search”; four Justices (those in the Alito concurrence) reject that view.  Five Justices join or express their agreement with the portion of the “Alito” opinion concluding that the long-term monitoring of a GPS device violates a reasonable expectation of privacy; four Justices (those in the majority, minus Sotomayor) leave that question open.

Goldstein correctly notes that this raises some significant questions:

First, does the “search” caused by installing a GPS device require a warrant?  The answer may be no, given that no member of the Court squarely concludes it does and four members of the Court (those who join the Alito concurrence) do not believe it constitutes a search at all.

Second, assuming no warrant is required for installation, is a warrant required for short-term monitoring of the GPS device?  Again, the answer may be no, as the majority conspicuously avoids addressing this issue and four members of the Court (again, those who join the Alito concurrence) squarely say that the answer is “no” (Alito op. at 13).  Justice Sotomayor alone says that this scenario “will require particular attention.”

Neither the Scalia majority nor the Alito concurrence provides much of vision of the future.  This clash between the two sums up the problem :

The Scalia and Alito opinions clashed, almost comically, over whether there was a 1791 equivalent of the kind of privacy invasion that GPS devices might threaten under a theory that they involved a “trespass” on private property.   Back then, Scalia suggested, “a constable” might conceal himself “in the target’s coach in order to track its movements.”   Alito countered that “this would have required either a gigantic coach, a very tiny constable, or both — not to mention a constable with incredible fortitude and patience” — a reference to the fact that, in the case before the Court, the monitoring went on 24 hours a day for 28 days.

It might be comical, except that these are our Supreme Court justices squabbling over the future of our privacy and personal sanctity while making jokes about tiny constables.  I was beginning to think that Orin Kerr was right  when he came up with his Equilibrium-Adjustment Theory, that legal doctrine is mere nonsense set out for public consumption to make us think there’s some actual rule of law involved, when this is all really about the justices playing “rough justice” with our rights and using any excuse they think they can get away with.

But if that was the case, nobody invited Sonia Sotomayor to the party.  In her separate concurrence, Justice Sotomayor  seems to recognize that neither drawing analogies to 1791 nor leaving the scope of our rights to the legislative process cuts it. 

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.

But she’s one of nine, and this quote barely scratches the surface of the problems raised by technology, the third-party doctrine, Katz’s reasonable expectation of privacy test and precedent.

In my  earlier post about  Jones, I saw this case as being a litmus test for the Court’s recognition of the problems technology presented to the future of Fourth Amendment jurisprudence.

The question of whether the Supreme Court has both the depth of understanding of the nightmare potential technology brings to the Fourth Amendment, as well as the long-sightedness to realize that it’s decision will be extrapolated to all manner of technology that we have yet to conceive of, is about as scary as it comes.

That one justice of nine seems to have some appreciation of the danger ahead, how poorly law developed to deal with normal-sized coaches and full-height constables applies in the digital age, is better than nothing.  But given how the Court broke down here, it’s clearly not good enough. 

Does the plant of a GPS device on a car require a warrant? Under the particular facts of Jones, yes. (Addendum: this is the net result, not the holding of the case, which skirted the issue entirely.) Under other facts, who knows. And how does that translate to the next shiny device? Only lone Justice Sotomayor even cares, while the rest seem determined to ignore the digital age at all costs. 

To the extent this case presented an opportunity for the Supreme Court to move into the digital age, to acknowledge that technology has changed the fundamental equations and demands attention, the Jones decision shows a Court mired in the past and ignorant of the future.  Or maybe a Court making up doctrinal excuses and divvying up rights as they, in their nine-headed “wisdom,” think we deserve them. 

What this is not is a decision that offers any comfort that the Supreme Court is coming to grips with the impact of technological change and our personal freedoms.  One out of nine isn’t good enough.

Kim Schmitz, at 37, who changed his name to Kim Dotcom, was enjoying life. He had a ton of toys and lived large.  Why shouldn’t he? He had the money to pay for this life, and it’s no crime. Unless the source of the money came from crime, in which case it’s a different story altogether.

The indictment, a tedious document replete with the typical surplusage that makes his every utterance sound ominously nefarious, may be half (or more) fluff, but if only a tiny fraction is accurate, will be sufficient to lock him away forever. 

Still, it sends the message. No matter where you are, or how big you get, the United States of America will get you, because it owns the internet.

He held German and Finnish passports, but lived in a mansion in Auckland, New Zealand.  Sure, there were 525 servers used by MegaUpload in Virginia, but then there were 630 servers in the Netherlands. The corporation was based on Hong Kong.  No matter. We have laws and the clout to make them apply to anyone, anywhere.  Even to Kim Dotcom, who  had the audacity to own cool cars with naughty license plates.

The indictment goes after six individuals, who between them owned 14 Mercedes-Benz automobiles with license plates such as “POLICE,” “MAFIA,” “V,” “STONED,” “CEO,” “HACKER, ” GOOD,” “EVIL,” and—perhaps presciently—”GUILTY.” The group also had a 2010 Maserati, a 2008 Rolls-Royce, and a 1989 Lamborghini. They had not one but three Samsung 83″ TVs, and two Sharp 108″ TVs. Someone owned a “Predator statue.” Motor bikes, jet skis, artwork, and even 60 Dell servers could all be forfeit to the government if it can prove its case against the members of the “Mega Conspiracy.”

It’s not the number of Mercedes owned is a significant criteria under the sentencing guidelines per se, but anybody who has more toys than the rest of us must have done something criminal.  And we just hate them anyway for living a funner life than us.

As Ken at  Popehat noted, the indictment and takedown came on the heels of the SOPA blackout, but couldn’t possibly have been related given the time and effort required for the investigation.  Heck, they couldn’t have typed the indictment fast enough to make the timing work.  Coincidence aside, it’s still part of the same problem, in that the government’s efforts to make its mark, to tell the world that it’s subject to the might of the United States even when it exists only in the cloud, was clear.  The laws being considered by Congress, and for which Congress got smacked by an unforgiving internet, was a tentacle of the government’s effort to rule the world we know as the internet.  So was this indictment.

There is a lesson in this indictment, fortuitously coming immediately after the blackout, that anyone who thinks the internet is the wild west, where there is no law other than survival of the fittest, is wrong.  No matter where you are, no matter how much money you make, no matter what, the United States of America has taken jurisdiction over you and, well, will bring you down if it so chooses.

One of the underpinnings of the need for SOPA/PIPA, for law to address the devil of the web, was the inability of copyright holders to reach beyond the jurisdictional limits that comprised the foundation of our legal system.  We could sue, and perhaps even get a judgment assuming we could meet the procedural requisites to appear to obtain jurisdiction under the old way of thinking about things, but it seemed like a pointless effort.  All that time and money spent trying to grab hold of a world that existed in binary code. Why spend good money on a worthless judgment? The internet laughed at our legal system.

Thus comes the Mega Indictment, a very deliberate decision to use scarce prosecutorial resources to make a critical point in the maturation of the internet.  Having already established through the peculiar jurisprudence of terrorism that everywhere is America for the purposes of jurisdiction, requiring little more than some facile rhetoric and a decent understanding of Chaos Theory to connect the dots and present a cogent argument about how everything that happens affects us, no matter where or when, jurisdiction over the Mega defendants was a no-brainer.

For the powers that favor an orderly and controlled internet, this indictment was absolutely critical, a means of telling every would-be internet pirate/entrepreneur that the rules apply or they will be crushed.  That the internet is everywhere, and anywhere, would present no obstacle to the most powerful nation on Earth.

In a way, this was necessary.  The internet defies arcane concepts of jurisdiction.  Sure, a guy in his basement in Des Moines was easy enough to nail, but what of Dotcom in Auckland? Or Germany, or the Netherlands?  What about Fujian or Bangalore?  It no longer matters where you are. Physical presence has been rendered meaningless, and if the government of China or India isn’t interested in squelching piracy by someone on its soil, does that leave the rest of the world powerless to do anything? 

We may not be particularly sympathetic to the MPAA or the RIAA because of their outrageously heavy-handed tactics, there are aggrieved parties who still need a means of redress short of putting together armed forces to invade foreign nations.  On the other hand, the United States has taken it upon itself to declare sovereignty over the internet, to proclaim that no matter where it happens, it’s subject to our laws.

Thus far, it appears that law enforcement in New Zealand is on board with the United States ownership of the internet, and their cooperation in executing warrants and seizing cool cars with funky license plates smooths what might otherwise be a sticky situation.  Whether the New Zealand courts will be as cooperative has yet to be seen.

While us little people were spending out time bemoaning SOPA/PIPA, the might of the United States was being applied to far bigger, far more important issues.  But it’s all part of the same message.  There will be law on the internet, and that law will be dictated by the United States of America.  If we can take down MegaUpload, we can take down you. And me. And anyone.  Now you know. 

Mentoring has become one of those buzz words in social media that is used to make stupid people stupider.  Wrap up interaction in the mentoring box, tie a pretty ribbon on it, and pretend that the desperate search for validation on the internet is a substitute.

A while back, Venkat Balasubramani noted the “Cult of Positivity” on twitter, where being nice to people you don’t know was repaid by their being nice in return.

Positivity certainly reigns supreme in the corner of the Twittersphere that I frequent, and my impression is that there are other pockets of it that are overwhelmingly positive as well. Twitter is all about highlighting positive things and people.  The virtual high five or pat on the back is currency on Twitter.  Indeed, research is passed around which shows that “negative remarks lead to fewer followers.”  In my (admittedly anecdotal experience), while there are a few people who call it like they see it, most legal birds are effusive in their praise and quick to withhold criticism.  And this extends to points of view taken, articles passed around, etc.  It’s almost as if it’s socially unacceptable to say that something sucks. 

This led Venkat to wonder whether all the positivity led to a negative impact, with people so concerned about positivity that no one wanted to be critical where criticism was warranted.  Where never was heard, a discouraging word…

Not only is the cult of positivity rewarded, but it’s not necessarily honest.  Seth Godin notes how those seeking validation are easily taken in by those who applaud with an ulterior purpose.

Humans have a natural openness to reciprocity. It’s a time-honored survival technique, one that allowed us to live together in villages for millenia. Someone who doesn’t reciprocate is less likely to be protected by his peers, right? Not only have we been taught reciprocation since birth, but it feels right. It’s baked in.

The problem occurs when the trading of favors become mercenary, when alert individuals start manipulating the system for personal gain. Suddenly, every favor is suspect, measured and not at all generous. Suddenly all the likes and links and blurbs become nothing but currency, not the honest appraisals of people we can trust. It means that bystanders have trouble telling the difference between honest approval and the mere mutual shilling of traded favors.

You think your twitter buddies are being supportive, while they play you so that you will be there when they need the favor repaid.  Yet, you’re sufficiently appreciative of their warm embrace that you are an easy mark, and are only too happy to return the favor of positivity and support to your sweet mentors.

Except mentoring requires not only the support of the good, but the criticism of the bad. Mirriam Seddiq made this point in an homage to her mentor, Terry Kindlon:

Mentorship is not about telling you you’re a superstar.  It’s about helping you get it right, or at least getting you closer to right than you were before you asked for help.  It’s also not about being nice. I published a letter from Terry to me wherein he basically tells me to go fuck myself and my hurt feewings.  I know at the time I probably cried when I read it.  It’s not nice.  It’s the opposite of nice.  But in that same letter he tells me to suck it up because I’ve got what it takes.  That, my friends, is high praise from the likes of him.  Good lawyers are made, not born.  But like any other creation, it’s not a simple process.  It is painstaking and methodical and requires a great deal of effort.  It also requires an incredibly thick skin. 

While empty validation is readily available online, and particularly on twitter, it bears no resemblance to mentoring.  Words of empty support, at 140 characters a shot, don’t make you any better. They just make you feel better.

For this reason, Kevin O’Keefe’s post, asserting “Twitter enables lawyers to improve their craft,” at  Real Lawyers Have Blogs, demanded attention.

The Washington Post’s Emma Brown (@emmersbrown), reports this morning that Twitter enables teachers to improve their craft. Twitter’s become a community of mentors offering inspiration, commiseration and classroom-tested lesson plans.

I’ve been on Twitter long enough to see the same camaraderie, collaboration, and learning taking place among attorneys using Twitter.

Classifying Twitter as solely a social media tool for marketing is shortsighted. Twitter immediately connects you to relevant information and people. That’s a coup for lawyers looking to become better lawyers.

Twitter is awash in “camaraderie,”  It stinks of it.  Insipid twits aplenty, offering virtual belly rubs for the asking.  There are the occasional witty twits, but they’re rare. There are even more rare informative twits, but there isn’t much of any worth that fits in 140 characters.  If that’s as deep as someone is capable of thinking, then perhaps it seems informative.  More likely, it’s just the positivity, since the need for validation seems to drive people to engage in blind twitting with people about whom they nothing filled to warm words and the appearance of empathy. 

Does it make you happy?  That’s nice.  Enjoy it, if that’s what you’re looking for on the internet.  But this has absolutely nothing to do with mentoring.  No one “improves their craft” via twitter. 

There’s harm being done here, and that’s why it’s necessary to point this out.  The lawyer who has tried ten cases is being “mentored” by the twitter lawyer who has never tried a case.  The lawyer who has tried 100 cases, but poorly, is a twitter rock star.  The twitter lawyer isn’t a lawyer at all, but someone “passionate” about something he knows nothing about.  You have no clue who you’re twitting with, and your twitter support group becomes the ultimate measure of the virtual “risky shift” phenomenon.  With support, the worst ideas begin to sound reasonable. 

Mentoring is crucial for lawyers, particularly the young and new ones who tend to look to the internet for comfort.  It’s not about camaraderie, or support, or high-fives or even getting your tummy rubbed.  It’s about being told when you’re wrong, before you do something foolish and damaging. It’s about a deeper understanding of what we do than appears in 140 characters. It’s about real people talking about real things with other real people, who we know and trust.  It’s about having a better reason to seek the advice of someone than the expectation that they will tell you how wonderful you are and give you a balloon.

Social media can be a fun way to kill some time, and twitter can be a wonderful substitute for real friends for those who feel isolated and alone.  It’s not without its virtues.  But mentoring is not one of them, and blind validation is the antithesis of mentoring.  If you’re seeking a pat on the back, knock yourself out on twitter. If you want to “improve your craft,” don’t delude yourself by thinking that your twitter pals are the answer.

Get real.  Find a real mentor. Engage in real discussion.  And leave the cult of positivity on twitter, where you can kill some time after you’ve done something meaningful.

As a kid, I remember the advertisements at the back of comic books, right next to the sea monkeys, for x-ray glasses.  If you believed the picture, they would allow you to oogle a young woman’s underwear right through her dress!!!  Back then, seeing women’s undergarments was enough to thrill a young boy.  We were so naive.

And half a century later, the New York Police Department is nearly there, making the dream come true.

Speaking at a State of the NYPD breakfast this morning, [NYPD Police Commissioner Ray] Kelly announced that the NYPD is developing a kind of infrared technology that will enable police officers to detect whether individuals are carrying guns under their clothing. Sure, it’s not as badass as shooting down a plane, but at least cops will finally be able to see what’s under our clothes without having to get out of their cars.

The mechanism, which the NYPD is developing with help from the U.S. Department of Defense, currently only works at a short range of three or four feet. But Kelly thinks they can improve it to scan citizens from a distance of up to 25 meters away. He announced this morning that the gadget will be mounted on NYPD vans with “the infrared rays shooting up the street at the person,” as the Post puts it.

No reasonable expectation of privacy here. While much of the focus on the 4th Amendment implications of technology remains on computers and shiny objects, this bit of science fantasy implicates a wide range of issue, ranging from the physiological impact of shooting “a kind of infrared technology” down city streets to cops ooglng women’s undergarments.

Interestingly, the  Gothamist obtained the reaction of NYCLU Executive Director Donna Lieberman:

Like all New Yorkers, we are eager for solutions to the intractable problem of gun violence. We find this proposal both intriguing and worrisome. On the one hand, if technology like this worked as it was billed, New York City should see it’s stop-and-frisk rate drop by a half-million people a year. On the other hand, the ability to walk down the street free from a virtual police pat-down is a matter of privacy. We have no idea how this technology works, if it is effective, and what it’s error rate is. If the NYPD is moving forward with this, the public needs more information about this technology, how it works and the dangers it presents.

Not exactly a clear picture of where she stands on the future of x-ray glasses.  On the bright side, we can anticipate a huge increase in applications to become New York City police officers, from all those men who still believe that sea monkeys are real and haven’t yet figured out that they can get the Victoria’s Secret catalogue in the mail.

The implications of this technology under the 4th Amendment (or Article 1, Section 12 for you New York sticklers) is a more difficult question.  While it would appear that the tech  runs afoul of the Supreme Court precedent, the argument that there is a right to privacy attached to walking the streets with an illegal handgun is a tough one to sell, particularly if 4th Amendment jurisprudence is really  no more doctrinal than keeping the playing field tilted toward law enforcement.

As Justice Scalia noted in Kyllo,

“it would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”

And this was, and remains, an astute observation.

To be sure, the three police officers represented by Ted Buck are scum.  Their conduct can be swiftly summed up :

–tasing a pregnant woman three times in about 42 seconds after she refused to sign a speeding ticket and get out of her car–

But in a 2-1 ruling [March 26, 2010], a panel of the 9th U.S. Circuit Court of Appeals disagreed. Judges Cynthia Holcomb Hall and Diarmuid F. O’Scannlain held that the officers were justified in making an arrest because Brooks was obstructing them and resisting arrest.

The use of force was also justified because of the threat Brooks posed, Hall wrote: “It seems clear that Brooks was not going to be able to harm anyone with her car at a moment’s notice. Nonetheless, some threat she might retrieve the keys and drive off erratically remained, particularly given her refusal to leave the car and her state of agitation.”

They also noted that the force used wasn’t that serious because the Taser was in “touch” mode rather than “dart” mode, which hurts more. They reversed the lower court’s opinion and held that the officers were entitled to immunity from the lawsuit.

Ignoring Seattle Police Chief John Diaz, a private attorney hired by the city to defend three officers who were sued after they repeatedly tased a pregnant woman during a 2004 traffic stop has asked the U.S. Supreme Court to hear the case.

In an extraordinary response, the city has informed the attorney, Ted Buck, that he was not authorized to ask the high court to take the case on appeal, and that the city won’t pay the costs of pursuing it.

“You undermined the City’s position with the officers and then chose to push forward with the petition ostensibly on their behalf,” City Attorney Pete Holmes wrote in a pointed letter to Buck on Wednesday.

“In addition, we believe you have compromised your ethical obligations,” Holmes wrote.

As much as these three hero cops deserve everything the system can dump on them, Ted Buck is doing what he is required, both ethically and legally, to do.  And the City of Seattle is absolutely, totally, completely, wrong.

That Seattle is paying the freight for the representation of the three heroes confers no control whatsoever over the representation.  Buck represents the mutts, and his loyalty and duty is to them alone.  The guy signing the checks doesn’t get to call the shots, and Buck owes the City nothing.  Seems wrong?  Seems like whoever pays gets to make the decisions?  Not when it comes to legal representation, where the duty to zealously defend is owed to the defendant, regardless of whether the City indemnifies their legal fees or not.

This is a relatively constant issue arising in law, where the representation is funded by a third party, and the third party wants at least a voice, if not control, over the decision making.  The normal practice is to thank the party handing over the fee, but stating with crystal clarity that while their help is appreciated, all decisions remain those of the individual(s) being represented and being the funding source provides them with neither access to confidential information nor a vote in any choices to be made.  If they don’t want to pay under the circumstances, that’s fine.  But they still get no say.

As for Buck, his decision to pursue cert may be just about the best thing going for our deep concern about the welfare of the three heroes.

The City Attorney’s Office determined a Supreme Court appeal was unwise. In a Dec. 19 meeting between the office and Buck’s law partner, Diaz agreed, joined by Mayor Mike McGinn’s legal counsel.

As outlined in the letter to Buck, the city determined the facts — tasing a pregnant woman three times in about 42 seconds after she refused to sign a speeding ticket and get out of her car — “unduly risk creating unhelpful Supreme Court precedent on taser use.”

Indeed, this atrocious case (to everyone other than the original 9th Circuit panel and those for whom the police can do no wrong) seems destined to produce some interesting precedent, given the egregious and inexcusable conduct of our three heroes.  A perfect case for review by the Supremes, to finally put a lid on the use of tasers whenever it’s convenient and without regard to need or justification for the use of force.

And if the City of Seattle doesn’t like pissing away it’s money on out of control cops, and the lawyer who loves them, then it might want to consider doing whatever it can to protect its residents from the physical and civil rights abuses perpetrated by members of its police force before they tase a pregnant woman three times in 42 seconds because she refused to sign a speeding ticket.

An underlying ethical theme for all lawyers is that our conduct shouldn’t bring the legal profession into disrepute.  For reasons unknown (well, not really unknown, but rarely spoken), this concern disappears when someone decides it’s necessary to get someone at all costs. Corey Hipscher found that out the hard way.

Via the Fort Lauderdale Sun-Sentinel, Hipscher was accused of fondling young girls.

Hipscher was accused in July 2009 of fondling a 10-year-old Boca Raton girl while helping her onto a boat at Quiet Waters Park. After those accusations became public, two more girls accused Hipscher of doing the same thing to them. The girls, visiting South Florida from the Dominican Republic, were ages 7 and 8.

Hipscher had taken the girls on boat rides, pulling them behind him on a flotation device, the girls and other witnesses testified during trials in August and November 2011. Hipscher’s lawyers argued that the girls misinterpreted innocent contact.

Two trials.  Two acquittals.  For those who may not appreciate it, obtaining an acquittal against accusations of this nature are notoriously difficult, as the natural inclination to believe and protect children tends to overcome all other evidence.  To prevail twice in such cases is, well, quite extraordinary. 

Case closed? Not by a long shot.

[Broward Circuit Judge Martin] Bidwill was unimpressed, finding that Hipscher committed a new crime while on probation for an old one. And while he legally could not impose the life sentence Hipscher would have received had he been convicted of child molestion, Bidwill gave the defendant the stiffest sentence he could.

For violating his probation, Hipscher was sentenced to 15 years imprisonment, based solely on the same evidence for which had been acquitted.  Neat trick, right?  Hipscher was on probation for a 2002 conviction, having nothing to do with children.

In the 2002 case, Hipscher was accused of sexual battery on his then-girlfriend. In court Thursday, he told Bidwill the whole case was a lover’s quarrel, and he accused his girlfriend of filing charges against him so she could qualify as a victim for a program that would pay for her relocation to Illinois.

Nonetheless, this conviction put him on the sex offender registry, which included a condition that he stay away from children.  Worse still, he had two prior “technical” violations, neither involving the commission of a new crime, for which he had served under a year each.  But this time was different. 

This time, prosecutors turned to the probation violation after losing both criminal cases.

“We pursued all avenues to get prison time for this defendant,” said Broward prosecutor Maryanne Braun. “We absolutely believe those girls who said he molested them, and the court believed them as well.”

The only people who didn’t buy guilt were the people sitting on the jury.  And who cares what they think where the prosecution and court face a defendant who they’ve decided needs to go down.  If not in the first trial, or even the second trial, there’s always the backdoor of probation, where proof beyond a reasonable doubt isn’t required, leaving the judge to do as he pleases without any “technicalities” to stay his heavy hand.

Cases like Hipscher’s make complete sense to the lawyer mind, to the extent that we understand and appreciate the differences in burden of proof and the inability of the prosecution to obtain a conviction, not once but twice, has no technical bearing on the judge’s determination that he violated probation based upon the reduced burden.  But cases like Hipscher’s offend us, because we similarly realize that guilty or innocent, he never had a chance.  The only question was how he would be burned, not whether. His fate was sealed.

To the public, however, the technical aspects of burden of proof mean nothing. It’s of no importance whether Hipscher’s sentence is tied to a probation violation or having brown hair.  He was acquitted of the crime. Then he was acquitted again.  That, to any reasonable person, is where the legal system has to let go.  The prosecution tried, and no one faults them for trying assuming they had sufficient evidence to go to trial, and lost.  Thanks for playing. Better luck next time.

When the acquitted defendant gets 15 years for the crime, we lose faith.  We lose hope. We see a system that cannot be trusted, a judge and prosecutor who have spit at the jury, telling them they couldn’t care less that he was acquitted.  Bidwill maxed out the defendant because he could, because he, despite the jury verdict, decided he was a bad dude who deserved to be sentenced to 15 years.

There was no way Corey Hipscher was going to walk, even though he had no history of sexually abusing children and, in this case, overcame the unspoken presumption of guilt.  It couldn’t stink worse.

No doubt the prosecution was sure of Hipscher’s guilt, but then, so what?  There is almost always a cavalier certainty by prosecutors that they somehow know deeper truths than ordinary people.  But there is a judge to temper their zeal, and to stand between the failed prosecution and the retribution they demand for a crime unproven.  More importantly, there is a judge whose job it is to prevent the system from falling into clutches of the prosecution and being reduced to no more than a tool to convict.

When trials and acquittals mean nothing, the legal system is turned into a farce.  Respect for the system disintegrates.  Whether Corey Hipscher was such a bad dude as to give rise to the need for such extreme punishment is hardly clear, but what is absolutely clear is that no one is so bad that putting him in prison is worth bringing the legal system into abject disrepute. 

But then, why worry about it when you have a man who needs prison, no matter what the harm to the integrity of the legal system.  The prosecution and judge demanded that Corey Hipscher go to prison, and that’s what happened.  They can worry about the system some other day.

Much as I seek police officers willing to take a stand and engage with the ignorant masses about why they refuse to challenge their brethren when misconduct or abuse happens before them, I applaud those officers and agents who acknowledge that the War on Drugs is one of the most destructive and counterproductive initiatives our government has devised.  And that’s why I  find this post at LEAP, Law Enforcement Against Prohibition, troubling.

As an active duty veteran police officer, I would love to publicly join Law Enforcement Against Prohibition and freely speak out against the drug war.  However, I am scared, yes scared, to join LEAP publicly. Although many active duty law enforcers are already speaking out publicly with LEAP and maintaining their careers (more on them later), I believe I would be punished by my department for my advocacy or perhaps even fired.

We are scared that in “rocking the boat” and speaking out:

1)    We will be terminated and lose everything.

2)    We will get passed over for promotion, lose the position that we currently hold, or fail to be transferred to more desirable assignments within our agency.

3)    Fellow officers and supervisors will blacklist us for appearing “weak” or “soft on crime”.

These are the everyday real-life reasons why I have not gone public, and why I believe active duty members of law enforcement usually remain silent about the 800 lb. “drug war” gorilla in the room.

There are also underlying psychological and personality reasons that make cops reluctant to speak out: 

1.        Ego

2.        Ignorance

3.        Denial

4.        Fear

5.        Lack of shame of #1-#4

I will be the first to assert the primary reason for my silence, and the silence of most cops, is an economic one (the fear of losing my job).  But after 40 years of an insane drug war, is economics the only reason cops have generally remained silent?  Honestly? Give me a break. This is not just about fear of losing one’s job—this is also about the character and spirit of the person wearing the uniform.  Ignorance, for many cops, listed above, is a self-imposed ignorance of “not wanting” to know.

When Mark Herrmann posts at Above the Law, I read. No, not because it’s necessarily something entirely novel and deep, though his posts usually contain at least one piece that strikes at a level that few of us think about.  No, it’s because Mark’s posts simply and elegantly state fundamentals about the practice of law about which we need constant reminders.  He’s done it again.

It’s very hard to take personal responsibility for everything that you touch. But it’s the only way to build credibility and a reputation. If it comes across your desk, then it’s yours. You have to make it right: “that is all Ye know on earth, and all ye need to know.”

While Mark talks about it in the context of in-house counsel, it’s true of everything a lawyer does.  Whether you create something, a motion, memorandum or brief, or whether something comes across your desk (or even your table at Starbucks), once it’s touched your hands or passed before your eyes, it has your seal of approval.

If you send it to me, then it meets with your approval. You vouch for it. Period.

It’s a burden.  No one suggested that it was easy being a lawyer, responsible for the fortunes of others.  No one said you could shrug and disclaim responsibility.  Mind you, it doesn’t necessarily require you to do everything yourself.  One answer, and sometimes the appropriate answer, is to send a turd back its source and tell its creator that the work is unacceptable.  What you cannot do, however, is close your eyes, hold your nose and pass it along.  Then it’s your turd.

And what’s this got to do with you? We’re criminal defense lawyers. We don’t pass memos around to corporate clients, or their in-house counsel, for review. Our clients don’t tend to be the best educated, and they’re easily impressed by seeing their name on the front page of a bunch of papers filled with lawyer mumbo-jumbo that means nothing to them. They won’t know whether our work is great or awful, original or spit out of the computer with only a name change. Why bother?  Glad you asked.

In criminal defense, one of the worst violations of this concept can be found in pro forma motion practice, both by the defense and prosecution.  Change the names and send it off, under the assumption that no one will read it anyway and that, while it’s obligatory to submit motions, they are an official waste of time and energy.  Why spend an hour, many hours, researching and writing, only to have a prosecutor submit wholly non-responsive, non-informative papers, and a judge who spends all of seven seconds skimming the first paragraph before ruling? 

The reason is one of understanding cause and effect.  I’m not merely offended, but outraged, by the cavalier attitude of judges who can’t be bothered to read moving papers, or ignore non-responsive papers from the prosecutor and rule as if criminal prosecutions are a huge joke with a foregone conclusion.  If they really believe it’s that easy, that unworthy of their effort, they have no business on the bench. None.

At the same time, it’s become a self-fulfilling prophesy, with defense motions typically unworthy of the time it would take to read them, thus justifying the judge’s quick skim and knee-jerk ruling.  Garbage in, garbage out.  When defense lawyers submit crap motions, they have no cause to complain about crap responses and crap rulings.  While many will argue that it’s not worth the time to write substantive motions that no one will read or seriously consider, the failure to submit motions worth reading are sufficient to justify the court’s refusal to bother.

If it’s ever going to change, it has to start somewhere.  Let it start with us, the lawyers, since we have no control over the judges or prosecutors.  Write well.  Put in the effort in every paper that comes from your hand so that you could show it to anyone with pride.  Let it reflect the best, most thoughtful work you’ve ever done, every single time.  And having done so, make a stink about it.

When the prosecutor’s response is a change-the-name-form, argue the point to the court.  Argue that the defendant is due better than this, a meaningful response with the level of accuracy and detail to which he is statutorily and constitutionally entitled.  You may lose the argument, but no one will fall asleep while you’re talking.  And if enough lawyers do this, and do it every time, the judges will grow annoyed with their naps being disrupted and start demanding the prosecutors actually demonstrate minimal competence.

And one day, one judge may just take you seriously and read your papers.  And may find that your motions are well-conceived, fully researched and (oh my!) meritorious.  One day, a judge may utter a word other than denied.  One day, you may win the point.  This can’t happen if no one bothers to read your papers.  And that won’t happen until your papers are worth reading.

Too busy?  High volume and no time to spend writing sui generis motions?  It’s just another “garden variety” buy and bust?  This isn’t an excuse. No one made you take on more work than you can competently handle.  You didn’t tell the defendant that you charge low fees, but can’t be bothered to give him the time of day. And don’t think no one notices; your client may not be aware of the fact that you’ve whispered sweet words in his ears to get his pittance of a fee, but will do as little work as possible, produce ten pages of motions that have nothing to do with his case and plead him out at the first opportunity.  When you made the choice of taking on more work than you can competently do, and assuming your sales pitch isn’t “low price, low quality,” then you are the at the heart of why judges and prosecutors don’t take the defense seriously.

Own it. Own every thing you do, from your emails to your motions.  They reflect who you are. You think you’re a great lawyer, but just don’t have the time, interest or energy to produce excellent work?  Then you are deluding yourself.  We are no more than the work we produce.  Anything that leaves your desk, leaves your hand, is yours.  If it’s not excellent, then you’re not. Period.

My plan was to repost this as soon as I saw that former disco diva (and the guy who brought Roller Derby to Pittsburgh) Dan Hull posted it at What About Paris?  I swear.  And then the sun got in my eyes, there was a hole in my racket, I’m just big boned.

Then Judge Carton posted it at Legal Blog Watch, which is about as humiliating as it gets.  The only positive was that it came after some pointlessly negative nonsense from a few curmudgeons who never seem to have anything nice to say, sufficiently putting off most readers who are seeking a joyful experience rather than a stroll down memory lane to the days of having to walk to the telly to change the channel or adjust vertical hold.

Aside: Does anyone under 45 have a clue what this refers to? Show of hands.  That’s what I thought.

Even my close, personal pal Dan Markel at  PrawfBlawg had the good sense to notice it, though the risk of actually embedding it might have subjected him to painful shunning at the Feminist Law Prof mud wrestling and monster truck rally.

And here I was, absolutely planning to post it as soon as possible, only to find myself in the unenviable position of caboose.  But I’m tough.  I can take your harsh, unrelenting criticism of my delay, my worthless procrastination, my being the last in a long line of thought leaders.  Go ahead. Ridicule me. Abuse me. I deserve it. 

Yes, I stand here humiliated before you.  But posting this makes me happy.  And really, isn’t that what it’s all about?

There was no question, none, where the good went bad.  Sullivan & Cromwell took on Cory Maples’ appeal as a gesture of noblesse oblige, and handed it to their younguns for practice.  Lives are for only good for practice, before letting baby biglawyers work on important cases for corporations.  It didn’t go well.

When an Alabama court sent two copies of a ruling in Mr. Maples’s case to the New York offices of the law firm, Sullivan & Cromwell, its mailroom sent them back unopened and marked “Return to Sender.” A court clerk in Alabama filed the returned envelopes and did nothing more.

Mr. Maples’s deadline to appeal the ruling came and went, and so far every court to hear his case has said, in effect, tough luck.