When Associate Justice Antonin Scalia  asked the question at oral argument, hearts filled with hope. Well, mine anyway.

Why is unreliable eyewitness identification any different from unreliable anything else?

                — Associate Justice Antonin Scalia, at oral argument in Perry v. New Hampshire,

Yet again, Justice Scalia says what needs to be said, clearly and decisively.  Why indeed?  Of the many burdens placed on judges in their role as gatekeeper of evidence at trial, one of the most critical is the preclusion of unreliable testimony.  And of all unreliable evidence, none is more dangerous than eyewitness testimony.

This Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury,and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial.

Our cases thus establish a clear rule: The admission at trial of out-of-court eyewitness identifications derived from impermissibly suggestive circumstances that pose a very substantial likelihood of misidentification violates due process.

The Court today announces that that rule does not even “com[e] into play” unless the suggestive circumstances are improperly “police-arranged.” It’s different. 

In the early days of my career as a lawyer, I spent a lot of time in the 34 Precinct.  The cops had a curious relationship with the residents, where everyone was a perp. Eventually.  Things have quieted down quite a bit since then, after the crack days of cold bodies appearing in the park every morning, but it apparently hasn’t done much to change the attitude.

Via  Jim Dwyer at the Times, a Christmas tourist, Aaron Vansintjan, from Belgium by way of McGill University in Montreal, wanted only to meet his friends at the Cloisters, a museum of medieval art in Fort Tryon Park, at 190th Street.  Silly tourists.

The day being fine, he decided to scramble up. He carried a Macy’s shopping bag with two white shirts he had just bought, and two books from his school’s library. He was also listening to music. Near the street, he reached a terraced area, and paused.

“I was catching my breath for about 15 seconds,” he said. “Someone ran at me with a gun drawn, screamed at me to get down to the ground, pushed me onto my knees, and then put my face in the ground.”

He was led up the stairs in handcuffs by a plainclothes police officer and others in uniform. “I was under the impression that it was very illegal to walk up the hill,” Mr. Vansintjan said.

That’s the funny thing about not having the slightest clue why a guy is pointing a gun at you. The cops start with the assumption that you’re guilty, and therefore know exactly why they nabbed you. This bit of confusion can, and often does, lead to a problematic reaction.  Would the New York City police actually shoot to kill a Belgian tourist for climbing on rocks if he’s not compliant?  You never know.

As he was being held on the street, he said, “they told me someone had reported the theft of a Macy’s bag.” He protested that he had been shopping and that he was on his way to the Cloisters. Moreover, he said, his hands were turning purple from the tight squeeze of the handcuffs. They were loosened slightly. The officers suggested that Mr. Vansintjan, who is 5 feet 10 and weighs 130 pounds, had resisted arrest, he said.

The friends waiting for him were astonished to see Mr. Vansintjan surrounded by eight police officers. “They came over and the police told them to get back,” he said. “I said, ‘Those are my friends.’ An officer asked me, ‘Oh, are they your accomplices?’ I said, ‘No, we were going to the museum.’ 

Just another day in the 34, where friends become accomplices and shopping at Macy’s carries risks.

The man who reported the break-in was driven past Mr. Vansintjan and identified him as a burglar. At the station house, Mr. Vansintjan was unshackled and taken to an interrogation room. “A detective asked me to tell my side of things, and said, ‘If you are honest, we will be easier on you’,” Mr. Vansintjan said. He said he was not told of his right to a lawyer, or to remain silent.

The criminal apprehended and the case almost solved. The only left to do was get the confession. Of course, at the Huntley hearing, the detective would pull out his Miranda card and explain calmly how he read the tourist his rights, one at a time, after which the tourist acknowledged he understood them and confessed voluntarily. Because that’s what they do in the 34.

“After I told him what had happened, the detective said, ‘You know, what the other guy is saying doesn’t match up with your story,’ ” Mr. Vansintjan said, an old ruse used to trick people into admissions. “I said, ‘I don’t know what you’re talking about.’ ”

The poor tourist, however, couldn’t confess because he didn’t have the slightest clue what they were talking about. He didn’t know of the alleged break-in, or the show-up identification. He didn’t know of any crime aside from climbing rocks.  The old ruse doesn’t work when the perp has no clue what it’s all about.

While this was going on, the man who reported the burglary told the police that there had been no break-in, and that people were out to get him, according to [police spokesman, Paul J.] Browne. He was taken to a psychiatric hospital, Mr. Browne said.

Oops. There was no crime. Just another psycho in the 34.

Just before he was released the evening of Dec. 22, Mr. Vansintjan said, a sergeant told him that an antique pocketknife he had been carrying “was a problem.”

“I knew it was legal,” the student said.

“He said they were going to give me a break, so it wouldn’t go on my record, and let me go.”

And that’s life in the 34.  They seized a tourist who did nothing wrong (provided you forgive him climbing on rocks) for a crime that never happened.  And being good guys, the cops gave him a break and let him go.  No harm, no foul. No record.

And there’s a cop walking around the 34 carrying a cool antique pocketknife he took off a perp.

It’s been almost 30 years since the first time I walked around the 34 Precinct, and it’s comforting to know that nothing has changed.  Not even for the tourists.

It was discovered purely by chance.  There was a note in the Rakofsky court file  rejecting his attempt to get an Order to Show Cause signed, with the lone remark, “papers are incomprehensible.”  Not exactly a good thing for a person fighting allegations of incompetence.

And then, quietly nestled in the file, was another paper, entitled stipulation, between Joseph Rakofsky and a defendant named Lori Palmieri from Tampa, Florida.  It had been in the file since last July, but no one noticed. No one knew who Lori Palmieri was, and her presence or absence didn’t make anyone’s radar.  But  there was the stip alerting all that she the action against her was discontinued pursuant to a “confidential agreement.”  She settled. 

What Lori Palmieri wrote about Joseph Rakofsky is lost to the ages.  No one seems to remember anything about it, or her, except Rakofsky, and now it’s gone. In its place is new post, clearly part of her settlement, in which she humiliates herself.  Worse still, as she exposed her shame to the public, no one noticed.  The post is dated July 1, 2011, and not until the stip was accidentally found in the file did anyone bother to look.  It’s like Lori Palmieri never existed.

The first inclination is to castigate Palmieri for her cowardice and ignorance.  She could have done nothing and won, since Rakofsky couldn’t get jurisdiction over her no matter what. But more importantly, there was no cause of action, no valid claim. She’s a lawyer, and there’s no excuse for her not knowing. And still she collapsed in a demonstration of spectacular cowardice and ignorance.

Last month, I posted about New Jersey lawyer, Joseph Rakofsky regarding his representation of a criminal client named Dontrell Deaner in a murder trial in Washington, DC after The Washington Post’s article. Mr. Rakofsky is unhappy about the content of the post and believed it defamed him. Thus, I am included in the Supreme Court of the State of New York civil action of Rakofsky v. The Washington Post Company, et al. As a fellow criminal defense practitioner, I regret this misfortune that has befallen Mr. Rakofsky. To the extent that I have in some way perpetuated others’ comments on his professionalism, I wish that had not occurred.

Palmieri “perpetuated” nothing, as no one knew she existed except Rakofsky. Until now, when the only thing known about her is that she is pathetic.

But after looking at Palmieri’s website, her disgrace begins to make sense.  It stinks of desperation, using every gimmick the marketers promote.  From the creepy video to the badges near her head.  She has a flawg attached to it, which includes insipid blurbs. She was no blawger. She couldn’t have cared less about free speech or, for that matter, what Joseph Rakofsky did to poor Dontrell Deaner.  She was the caboose, jumping on what she thought was a train that might gain her a fee after thinking people had done their work.  She tagged along, hoping someone would notice.  The only person who did was Rakofsky.

Standing up to Rakofsky wouldn’t get her a client or make her a dime, so why bother?  Cut your losses and run, get out of this. So the price was to humiliate herself publicly by writing such utter stupidity?  Who cares?  Not Lori Palmieri, who had no real horse in the race.

It is easy to pick up these articles and run with them because it makes for interesting posts. Nevertheless, we should all endeavor to look beyond the content that newspapers print to the people behind them. There is a great deal more to know about Mr. Rakofsky than what was written in my blog. No doubt, his course of conduct going forward will give better insight into the kind of man and lawyer he is. I, and perhaps many of the other bloggers who cited to the Washington Post’s article, did not have the benefit of the entire story. We should have done better.

Palmieri speaks for no one but herself.  Others knew exactly what they were writing and why.  Others were disinclined to disgrace themselves by saying whatever it took to beg out of the case.  Others did better. Palmieri did not.

There are a few messages here, but the one that stands out after the amazement at Palmieri’s cowardice and ignorance is the abject failure of the all the marketing gimmicks, scams and schemes, to make anyone notice Palmieri existed.  Here she was, humiliated in all her glory, and no one noticed. No one cared. She did everything the marketers said a lawyer should do to become a thought leader, a game changer, a player on the internet. And she was still a nobody.  The only thing her shamelessness brought her was a lawsuit, and subsequent humiliation.  It doesn’t get more pathetic.

When this first became known, announced by  Eric Turkewitz after he obtained the judge’s terse reaction to Rakofsky’s latest papers, rejected as “incomprehensible,” it was astounding that someone who claimed to be a criminal defense lawyer would be so weak, so ignorant, such a coward.  But after reflection, the anger and amazement wore off.  Lori Palmieri may be all those things, but what she mostly reflects is a sad, pathetic lawyer who was so desperate for a case that public humiliation meant nothing to her.

And if Turk hadn’t accidentally stumbled across the stipulation, the monument to Palmieri’s disgrace, no one would have ever known she existed.  No string of marketers’ adjectives can cover the stench of this massive failure.  It’s not just the odor of cowardice and ignorance, but the stink of pathetic humiliation.

Update:  After writing this post, I happened upon a comment left by “Lori D. Palmieri, Tampa Criminal Attorney,” dated May 25th, left at a post by  Jeff Gamso on Rakofsky.

It just goes to show you how important it is to do your research when hiring a criminal defense attorney! In light of being sued by Rakofsky for an earlier blog post on this same topic, I decided to follow up with another addressing the lessons learned – mainly focusing on asking questions about experience, certifications, reputation etc. Rakofsky shouldn’t have accepted this case, but to eliminate this from ever happening to you – we should all do our homework!

The funny thing about irony is how often it bites one in the butt.

There’s a good reason for the maxim, stercus accidit.  Despite best efforts, careful preparation and thoughtfulness, sometimes something undesired, unanticipated occurs.  And the honorable thing to do is to come clean, acknowledge that it happened and follow the rules.  And for being honorable, for having no improper intent, for doing absolutely, positively nothing wrong, yet honoring he compact, you will be thanked, appreciated and, in a perfect world, get a balloon or some similar reward, right?

Not in Buford, Georgia.  Via  11 Alive (not the dead one, but the living one):

Thirteen-year-old Jack Persyn was at chess club before the start of classes at Lanier Middle School in Gwinnett County when he discovered an inch-and-a-half long knife in a bag he brought to school. The military style bag was given to him as a Christmas gift from his aunt, who bought it at a yard sale.

The disciplinary report written by administrators at Lanier Middle states that the 8th grader “accidentally” brought the knife to school and that he “immediately self-reported” the weapon to his teacher.

Still, Jack was punished with four days of in-school suspension.

It’s always the quiet ones in the chess club.  But it’s not like Jack wasn’t “rewarded” for his honesty, coming forward to tell his teacher that he found a tiny pen knife in the bag he was given for Christmas.

Several years ago, the Gwinnett School System altered its policy to allow consideration of self-reporting. Prior to that, cases such as this one would result in a minimum 10-day out-of-school suspension.

That’s six days saved by self-reporting. Kinda warms your heart to know how much the school appreciates its students doing the right thing. 

So is this yet another example of the mindlessness of schools adopting a “zero tolerance” policy toward weapons, the sort of policy designed to thrill grocery clerks at the expense of anything remotely resembling reason?  Absolutely not, the school proudly proclaims.

The Gwinnett School System insists their policy on weapons in school is not zero tolerance, yet a school spokesperson said any student found to have a weapon at school will face punishment even when a student self-reports accidently having that weapon.

“We can’t ignore the fact that there is a weapon on campus somewhere that someone can use,” said system spokesperson Jorge Quintana. “This is obviously to keep the safety of our students in our schools.”

“Obviously,” a student who accidentally brings a tiny pen knife to school, through no fault of his own, and immediately gives it up, tells his teacher, must be punished for the safety of the students.  Obviously.

Of course, schools are all about teaching children important lessons, and what happened here most assuredly taught Jack some big ones.  Never, but never, trust your teacher or school officials. Never give yourself up.  Never admit to anything, even if you’ve done nothing wrong. Never expect life to be fair or to be rewarded for honesty.

The only surprise here is that the school administrators haven’t applauded their diligence and efficacy for finally teaching a student critical life lessons, that they aren’t to be trusted with the care of students.  If they had given this greater thought, and figured out how to turn this absurdity around and take credit for teaching Jack a thing or two about how to deal with grocery clerks and school administrators, they could throw a party and give themselves balloons for a job well done.

H/T Radley Balko

They went in for battle in Ogden, Utah, and that’s what they got.  Radley Balko gives the TL;dr version:

But the gist is that a veteran who apparently grew marijuana to self-medicate for anxiety and depression apparently shot and killed one cop and wounded several others during a nighttime raid on his home. This is the same narcotics task force, by the way, that shot and killed a man wielding a golf club five seconds after breaking down his door during a botched meth raid last year. That cop was forgiven for his mistake. Heat of battle, volatile situation, mistakes were made—you know the drill.

“It’s not a legalization issue, it’s not an immigration issue, it’s a public safety issue. If someone is willing to shoot it out with police, who is self-medicating on marijuana, what’s to say he’s not willing to walk out his house and start shooting his neighbors?” Smith says.

“This is a very significant event, something that I don’t know that the state has ever experienced something of this magnitude,” Smith told reporters. “There’s a lot of lives affected, a lot of families affected.”

Stewart will be charged with capital murder, which could lead to a sentence of death following a conviction, the prosecutor said.

He will also face eight counts of attempted aggravated murder and a charge of cultivation of marijuana, after he is released from hospital and booked into jail, Smith said.

Investigators have confirmed explosive materials were found inside the home of Matthew Stewart over the weekend.

On Saturday, investigators came across some sort of bomb while searching Stewart’s home. The materials could not be removed, so officers detonated the materials Saturday evening.

“It was a really big boom,” said neighbor Kevin Wood. “I definitely heard it, and you knew it was something more than just the backfire of a car, or something falling over.”

Bombs = terrorist.  Terrorist is the most evil thing the government can call someone, and shuts down all reason immediately. Perfect. They don’t even have to call Stewart anything, because everybody knows that normal people don’t have bombs.  Except:

An ATF spokesman out of Denver told Fox 13 the materials found would not be classified as a bomb.

And yet the lede is that it’s a bomb.  One that made a really big boom, likely from the explosives used to blow up the “bomb” that wasn’t a bomb. 

What’s remarkable is that for all the damage, for all the harm, for all the blood spilled, we know almost no facts about why this happened, what happened, and what any of it means.  The little we do know is Matthew Stewart was growing pot in his him and otherwise minding his own business.  We know that latter because if he wasn’t, it would be a headline. If he posed any actual threat to anyone, the government would be screaming it from the rooftops. They aren’t. He didn’t.

Instead, we have the government dancing as fast as it can to justify the fact that there is a dead agent and four wounded agents all to shut down a guy growing marijuana for his own use.  And, of course, it’s all that bombing shooter Stewart’s fault.

A number of individuals were wounded as they were giving aid and trying to remove fallen officers from the scene,” Smith said during a news conference.

Despite rumors, he said he has seen no evidence to suggest any of the six officers were wounded by “friendly fire” or by fellow officers.

At least the widow of the fallen agent can take comfort that her husband was a hero.  And the public can sleep soundly at night knowing that they’ve been protected from the likes of Matthew Stewart.

Update:  And the plot thickens, as photos emerge of Stewart dressed like a terrorist!

“They also found a picture of the suspect dressed as a terrorist,” he said. “He was posing in a suicide bomber’s vest.”

Ha!  But,

But Stewart’s father said the photo actually shows his son in a Halloween costume that he wore three or four years ago.

“He was going to the party as Osama bin Laden,” the father explained.

If only Stewart had dressed as a gay Osama.  The possibilities are endless.

I was talking to a cop.  Yes, I talk to cops. In fact, I know quite a few, and have some I count as friends. This will not only come as a shock to some, but will repulse a few.  They’re the enemy. They’re evil.  Maybe not as people, out of uniform and playing ball with their kids, but strap on a gun and shield and they’re the personification of a blue monster that subjugates ordinary Americans.

By reducing police to caricatures, we diminish ourselves and our ability to make any headway on changing a troubling situation.  Back in the 50’s and early 60’s, the public saw cops as Andy Griffith and Barney Fife. Sheriff Andy was wise and caring, invariably honest and trustworthy.  Deputy Barney was a lovable imbecile with a heart of gold.  Then came the protests of Vietnam, the Yippies, and cops earned a new name: Pigs. 

Neither was quite true, yet neither was entirely false either. Like judges, like lawyers, like everyone, cops are people. Some are quite smart and caring. Many aren’t the sharpest knives on the Sam Browne. But what distinguishes them is that they embrace a culture that includes one certainty, that no one understands the job of a cop except another cop. 

As I spoke with this cop, someone I had known for many years and with whom I shared some yucks in the past, the subject turned slightly unpleasant.  It was about expectations, whether he had done his job well enough.  I suggested he hadn’t. This made him angry.  I apologized for “hurting his feelings,” which he vehemently denied.  “You can’t hurt my feelings,” he responded.  Of course, I did, but by denying it, he could avoid dealing with the issue.

We talked about good cops and bad cops, and about good cops who close their eyes when other cops do bad things.  We talked about how a good cop does something bad.  We talked about how hard it is to get rid of bad cops. We talked about responsibility to the public.  He explained to me how nothing is as simple as non-cops thought it was. To hear him, the police were as close to sainthood any anyone with a gun could be. “Not perfect,” he conceded, but as nearly perfect as any human beings could be by his characterization.

I challenged this assessment.

After going around the block a few times, and accomplishing nothing, he finally told me that I was just a cop hater.  A cop hater?  By saying that, an ad hominem in the logical fallacy sense, he was able to dismiss anything I said, any argument I made.  The discussion was at its end.

Not long ago,  Brian Tannebaum called for a national conversation on law enforcement.   Mirriam Seddiq demonstrated how the situation has gone on for too long, without improvement.  In my little way, I tried to have this chat with one cop, and it didn’t go well.  Rather than discuss the good and the bad, I ran head first into the wall of “cop hater.” 

Many have given up hope of change, screaming at every opportunity about how cops are evil.  What would they do?  We need police. There are bad people out there and, most of the time, the police serve to protect us from them.  They do so at personal risk, even though we can excuse that as being part of their job.  Would the screamers get rid of cops?  That won’t work out well.  The police exist for a purpose, and that purpose has to be served.  We need police.

Just as people see only the cop who beats the guy for nothing, or arrests someone for  standing too close to a subway door, they are blind to the cop who helps someone, or who protects the person in need.  What haters refuse to see is that it’s the same cop, the same person.  One day, you thank him. The next day, you curse him. And when you scream your hatred, he only hears the shriek of a cop hater. 

What was clear is that the cop wasn’t going to accept me as a voice worthy of questioning him.  I wasn’t a cop. I didn’t get it. I could never get it in his mind.  So anything I said, no matter how reasonable or true, could be dismissed as the words of a cop hater.  He was happy to listen to me compliment him, thank him, but there was no way he was going to accept my criticism or question. 

It occurred to me that the only way any conversation could be had was one cop to another.  Only then could the facile ad hominem be refused.  A cop can tell me I don’t get it, but he can’t say that to another cop.  Or a former cop, though I’m not entirely clear that cops accept the idea that a former cop, the minute he puts in his papers, loses all memory of the job and all credibility.  There may be a precipitous drop as soon as a cop hangs up his shield, where he goes from “us” to “them” in a flash.

I know there are cops who see the problems, who feel the pain people suffer at the hands of their brethren.  You join LEAP.  You have blogs. You speak out here from time to time.  Cops won’t listen to me. The screamers make the situation significantly worse, adding to the polarization of the respective interests.  But you, officer and detective, you can speak out.

They can’t say you don’t get it.  They can’t call you a cop hater.  If you believe we have a problem that needs to be addressed, then it’s time for you to say something.  Maybe they won’t listen to you either, but you need to try because they will never listen to us “cop haters.”

In the New York Times, Lakhdar Boumediene tells of the seven years he lost in Guantánamo for nothing.

In a decision that bears my name, the Supreme Court declared that “the laws and Constitution are designed to survive, and remain in force, in extraordinary times.” It ruled that prisoners like me, no matter how serious the accusations, have a right to a day in court. The Supreme Court recognized a basic truth: the government makes mistakes. And the court said that because “the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore.”

Yes, the government makes mistakes. And now, the  NDAA institutionalizes the government’s authority to be wrong, without anyone to question or challenge.

The reaction to a headline of police killing a middle school students is visceral. No reasonable person reacts well to a child being shot dead. But it isn’t always that simple.

In Brownsville, Texas, police  shot and killed Jaime Gonzalez.

Police shot and killed an eighth-grader in the hallway of his middle school Wednesday after the boy brandished what looked like a handgun and pointed it at officers. It turned out to be a pellet gun that closely resembled the real thing.

Fifteen-year-old Jaime Gonzalez “had plenty of opportunities to lower the gun and listen to the officers’ orders, and he didn’t want to,” Interim Police Chief Orlando Rodriguez said.

Shortly before the confrontation, the boy had walked into a classroom and punched a random boy in the nose for no apparent reason, police said. Investigators did not know why he pulled out the weapon.

Since this news broke, it’s been suggested that the reason Jaime brought a pellet gun to school was that he was being bullied.  What this means isn’t clear. Whether it’s true isn’t clear. Regardless, bringing a gun to school, even a pellet gun, is not the way to deal with bullying.

The reaction to this tragedy, and it is always a tragedy when a child is killed, is mixed.  At This Can’t Be Happening, Dave Lindorff writes:

Let me say unequivocally from the outset that, yes, whatever police authorities may say about “justified use of force,” the cops in this instance used excessive force (American cops these days are in military mode, and justify just about any firing of an officer’s weapon). Unless there were other children who were being held hostage by Gonzalez (there were not), or who were near him and being threatened (there were not), the police had no reason to kill him. For one thing, a pellet gun has such a tiny muzzle opening it would be pretty hard to mistake it for the muzzle of a Glock, as police are claiming, unless Brownsville police have very low vision standards. Furthermore, there is the question of why three shots were fired, why they were fired at the chest of a child with clear intent to kill, and of course, there’s that shot to the back of the head, which is simply unjustifiable under any circumstances.

I want to agree with him. I can’t. While the desire that police perform with the scripted precision of an action movie is understandable, there is a line, bound by realistic human limitations, beyond which no one can be held. Not even cops. 

Jaime Gonzalez was terribly wrong and foolish to bring a gun to school, and yet, no matter how wrong he was, it’s not something for which we can ignore the tragedy of his death.  He was terribly wrong not to drop the gun upon command of the police, and there is no question in this instance based on witnesses that he was told to drop the gun.  He didn’t.  Even more foolishness. He might have frozen, unable to process the words or the situation. Stuck, gun in hand, trying to figure out what was happening around him.  Maybe a few more seconds and it would have clicked. The gun would have fallen from his hands, and no child would have died.

These are the sorts of things we think about in trying to make sense of tragedy, excuses and rationalizations of what might have given rise to it.  The next thing that kicks in is how it could have ended differently.  The cops could have shot the gun out of his hand, like they do in Westerns.  They could have gone for a non-lethal, shot, his legs perhaps.  If they had just winged him, then he would have been hurt but still alive.

In every potentially lethal confrontation, there are an array of variables that might have altered the outcome.  Because of our hope that no child dies this way, we painstakingly parse the details to try to find a way that it wouldn’t have happened because we dread it happening.  And yet, as tragic as Jaime’s death is, this time the police weren’t at fault.

The police were confronted with a person with a gun in a school.  It’s possible that they might have noticed it was a pellet gun rather than a Glock, but to expect that degree of nuance under the circumstances is too much.  As I’ve been told many times, very real guns come in all manner of sizes and shapes, and we cannot demand the police to wait until its bullet strikes someone to figure out how lethal it is.

The police commanded Jaime to drop the gun.  He didn’t, at least not quickly enough.  Perhaps, had they waited a bit longer, he would have. Or perhaps he would have fired while they were waiting. 

The police are trained that if they are authorized to use deadly force, they are to shoot to kill. This isn’t a movie. Few people are so skilled that they can shoot the gun from a hand, or wing a person sufficiently to end the threat.  And if the attempt to do so misses, the next shot may come from the other direction and hit its mark. If they shoot, the police shoot to kill.  If not, they shouldn’t shoot at all.  The notion that guns rightly fire but in less than lethal ways is a fantasy we harbor in the hope that the least possible harm can be accomplished.  But guns are real, and they are used in terribly real situations. 

The police are trained that once they start firing, they do not stop until the person at whom they’re shooting cannot do harm.  There was a bullet that struck Jaime in the back of the head, which Lindorff describes as “simply unjustifiable under any circumstances.  If the police stopped, walked over to a fallen boy and pumped a bullet in the back of his head, it would be an execution, But that’s not what happened.

Once the shooting begins, bodies move, sometimes voluntarily and sometimes not. Bullets end up in places that weren’t the target at the moment the trigger was pulled.  When a person spins, or falls, or twists, it could cause a properly aimed bullet to strike an inappropriate place.  It happens in the heat of the moment. It happens even though it shouldn’t.  It happens.

A hundred different things could have altered the outcome in the hallway of the Brownsville middle school, and Jaime Gonzalez might still be alive.  I wish they had.  I wish he was. 

But the police did not use excessive force.  The police did not engage in misconduct. Not this time. They did what we ask of them, and still a tragedy occurred.  Sometimes, tragedies happen at the hands of police, but there is no blame to be imposed.  This is one of those times.

It’s a big internet. Really big. Big enough to have room for pretty much anything and everything that wants to be here, and that means the good, the bad and the ugly all have their place.  It’s a feature, as well as a flaw. For those of us who spend a decent amount of time here, it presents a dilemma.

Yesterday, Ken at  Popehat wrote about the Ashton Lundeby lie, the one where a fairy tale was manufactured about how a kids was supposedly secretly detained under the USA Patriot Act, and used to demonstrate how sinister the government is. Except it didn’t happen.  Conspiracy theorists seize upon stories like this to prove the evils of the government. Their opponents seize upon the perpetuation of the lie as proof that there’s  nothing sinister about the USA Patriot Act.

Youtube is  replete with videos of isolated incidents of police misconduct, but the  government is busy trying to force Google to take them down, if they can’t  arrest the miscreants before they put them up. While studiously seek to be  above reproach in the accuracy of their posts, others couldn’t care less about truth when it comes to promoting their cause. Causes are big on the internet.

Dan Solove explained the impact of the internet on Individuals’ reputations in his book, The Future of Reputation. Since then, an  industry arose to “fix” people’s online reputations. For a fee, they claim to be able to make the lies disappear. Or a fiction grow. 

The most effective tool is for lawyers to establish their online reputations before they are attacked, Dozier said. His law firm, for instance, pre-emptively bought 3,000 domain names to prevent them from falling into the wrong hands. It also operates 100 Web sites and a dozen or so blogs, and participates in social networking sites. “All those give indexed results that are positive,” he said.

It’s ironic that Dozier is offered as a protector of reputation, when his own reputation, called “infamously thuggist,” has been called into question. With 100 websites and a dozen blogs, one would think he could manufacture any reputation he wants.

As new lawyers seek to enter the internet with running start, they hire businesses like  Yodle and  Findlaw to create their presence.  Failed lawyers recreate themselves as gurus to teach new lawyers how to create fake internet personas to turn them into experts in six months, while others proclaim the glories of marketing as the magic bullet to success.  Some  bolster the crap while others fight it.

The examples never stop, but I will.

The “solution” offered by many strikes me as facile, “the cream will always rise to the top.”  I sweet maxim, but hardly a guarantee.  There’s far more chafe than wheat, far more lies than truth, far more crap than substance.  Those of us who have spent a great deal of time on the internet believe we can distinguish the difference. I still find myself learning, often to my chagrin and embarrassment, that something I thought was accurate wasn’t, that someone I thought was legit isn’t. 

I would like to think I’m fairly skeptical and knowledgeable about how the internet, and more particularly, the blawgosphere, works, and yet I keep finding mistakes on my part.  If someone with my familiarity can’t manage to get it right, what is the likelihood that someone new to all this is going to be able to separate reality from fiction?

Aside from my persona as curmudgeon of the blawgosphere, having the willingness to write unpleasant things that others never would because it would interfere with their interest in being loved and adored, it’s been my purpose to be an  honest broker in the blawgosphere. The pitfall is being applauded when I’m critical of something they hate, yet castigated when I’m critical of something they love. We’re all geniuses or imbeciles, according to whether you meet with the approval of each individual with a keyboard.

It’s a big internet.  The place I occupy is minuscule, and in the scheme of an animal so huge, so varied, with so many heads and tentacles, I’m puny.  As a vehicle of commerce, its merit is proven and undeniable.  As a vehicle of thought and information, the jury is out. 

The more I read, the more I try to come up with an answer to how we can distinguish the good from the bad, the truthful from the false, the manipulations that alter reality and create a fiction that is presented so well that it’s more real than IRL.  I’ve come up empty.  I want to be sanguine about it, like many others in the blawgosphere whom I respect, but I just can’t muster the smile.

That it behooves us, lawyers, humans, to be honest, accurate, informative and bold on the internet strikes me as something too obvious for words.  And yet, I’ve come to realize this is a distinctly minority view.  No matter how much room there is on the internet, or how full it becomes, its value is only as great as the merit of its content.  If the content is crap, than it’s a monstrously huge pile of crap.

Postscript: Whenever I post something meta like this, someone speculates about my motivations. My motives aren’t particularly hard to figure out, at least this time. I awoke this morning to more than a thousand new emails. The majority were spam comments. Then there were the press releases, some from worthy causes, some from nutjob websites, some so unbelievably trivial as to make my head explode (The law firm of Schmuck, Douche and Dickwad announced that they’ve just rented 37 square feet in a tenement in Brooklyn!). There were the invitations to join “the most respected group” of lawyers on a website that’s been live for three hours, the requests to write guest posts for FREE!!!  Of course, I got the “Beloved” emails from Nigeria, and the girls of Kazakhstan who saw my bio on the internet and want to be “deep friends” with me.

I had a dozen emails about sales being run by businesses I’ve never heard of, who inform me that I opted into their advertising, and another dozen from businesses I’ve heard of and from whom I’ve unsubscribed.  There were the link exchange emails, the emails from people who read things I’ve written and want to tell me they love/hate what I wrote.  And a few friends who offered some links to interesting things they found on the internet that might interest me.

But what got to me this morning was an email from someone who found me on the internet, who had a very serious problem which he explained to me in inappropriate detail, and then proceeded to tell me how he’s tried desperately to figure out what to do, reading websites, blawgs, articles, everything he could find on the internet, only to realize that he’s now more confused, more lost than ever. “What should I do,” he asked.

In all the self-promotion, puffery, agendas, lies, scams, schemes and crap, very few seem to remember that there are real people who think they can find answers on the internet, and instead find the garbage lawyers float in its place.  We’re filling their heads with nonsense. We’re killing them with empty words. We swore to help them, and instead we’re killing them.  If we can’t manage to do better, then we don’t deserve the internet.  We’ve squandered this gift on crap, and it occurred to me that no matter what I do, what I say, it’s likely that it will continue and few of you will give a damn as long as you think there’s something in it for you.