Every few days, the question arises whether there is still enough vitality in the blawgosphere to keep it pumping.  The early days were heady, as the terrain was wide open.  Every subject under the sun was fair game and novel. 

Over time, ennui sets in.  Subjects have been covered, and covered again. Fights have already been fought. Only the self-promoters have no qualm about repeating themselves, lest any potential client not know how deeply they care.  Despite this, the criminal law blawgosphere has defied the trend, and the nominations this year show how intelligence and dedication have prevailed, despite the flooding of the blawgosphere by words and ideas sacrificed to self-aggrandizement.  Having been around here for a while now, few things make me prouder to be a blawger.

The 2011 nominees, as with their predecessors, were a diverse group, but showed how criminal law blawgers are taking the medium in new directions.  In what I’ve already noted as perhaps the  most significant work done by a blawger this year,  Nathan(s) Burney’s tumblr,  The Criminal Lawyer’s Guide to Criminal Law, is a foundational work that I fully expect to see bound and distributed to every student in America. While certainly worthy, this award is for a blawg post, and Nathan(s) work is on to bigger, better things.

In a three–part  series of posts, almost-lawyer Radley Balko did an exceptional job of debunking common, and self-defeating myths about criminal law.  To appreciate the importance of these posts, it is impossible to go to most non-lawyer blogs or boards where, to this moment, you won’t see these myths resurrected and spread like a thought-cancer.  But the best, and worst, aspect of Radley’s series is that it ran in Huffington Post, where Radley is the agitator in residence.  It’s thus seen by a far broader and larger audience than one finds in the blawgosphere, but Huff Post will never be mistaken for a blawg.

Finding humor in criminal law is easy, particularly of the gallows sort.  But putting it in writing, and doing it over and over, is brutally difficult.  It’s been tried by others as to the law in general, and tends to burn brightly until it flames out.  This year, anon PD  Appellate Squawk has taken no prisoners while allowing us to laugh at the nightmares we experience every day. Given the pervasive pain and suffering that comes of criminal law on its best day, we most assuredly need Squawk to keep up the effort to give us a laugh where we would otherwise cry.

One of the more obscure posts that was nominated was the exceptional and honest recap of young lawyer Marcus Schantz, detailing the travails of his defense of a cop shooting, ending in an acquittal.  It’s not merely an incredibly moving account of his experience, but one in which no criminal defense lawyer can’t share the feelings along the way.  This post was clearly a contender by content, but sadly was the last post of his nominal blawg, which has gone silent since September.  Hopefully, 2012 will see Marcus take up keyboard and resurrect his blawg.

There were two incredibly moving posts, one by  Mirriam Seddiq and another by Mr. Emotional, Brian Tannebaum, that brought poignancy to the year’s travails, forcing us to confront our inability to make meaningful headway in efforts to end the violence and harm done in the name of Order.  Eric Mayer wrote his letter to the police, one that most of us wish one of our brothers in blue would read.  But they won’t.

This year also saw a first, the nomination of one of  GW Lawprof Orin Kerr’s posts about computer crime. No lawprof post has ever been nominated before, and that’s a shame.  Even though they tend not to follow the sensibilities of criminal defense lawyers, Orin’s work is both excellent and incredibly informative, if occasionally infuriating. We need to remind ourselves not to stay in the echo chamber, read and consider only those writings that confirm our ideas. Without question, Orin provides some of the most well considered and fascinating writing on cutting-edge criminal law issues in the blawgosphere, and should not be missed.

It likely comes as no surprise that some of the hardest hitting work was done by Ken at Popehat, who not only deconstructed a scam investigation, but took on a great many unpleasant battles this year, including the  violation of Amy Alkon at the hand of TSA Agent Thedala McGee.  But as Turk noted in the nominations, the raw emotion of  Amy’s own post spoke for itself.

As the nominations showed, the scope, breadth and depth of the content of the criminal law blawgosphere reflected its vitality and commitment to making people smarter, better, for having spent some time here.  Not every blog can say that, and some, particularly in other areas of practice, are consumed with smarmy self-promotion or mind-numbingly stupid content that assure that readers will leave worse than they arrived.  Somehow, the criminal law blawgosphere remains blessed, refusing to succumb to the worst nature of the internet.

It was a severe struggle to come up with this year’s winner. Not only was the competition so fierce, but the nature of the content so diverse.  It’s like comparing apples and Fords.  And yet, one blawg post ultimately stood out for its overarching significance and profundity to the blawgosphere, to criminal law, and to lawyers. 

The greatest reluctance comes from the fact that this blawger is someone with whom I’ve gone for the ride over the past five years, and whose contributions to the blawgosphere are almost too large, too great, to capture in any particular post. it’s like telling Fred Astaire that he’s a pretty decent hoofer.  And yet, this year’s award for Best Criminal Law Blawg Post goes to Mark Bennett for his post:
 
Schadenfreude, Irony, and The Defense Function

Mark doesn’t need another award to recognize his exceptional quality and vast contribution to the blawgosphere, particularly from the likes of me, but I hope he will accept this with my deep appreciation.

NOMINATIONS ARE NOW CLOSED

• Anybody can “nominate” a post for the honor, including their own.  SJ posts are off limits.  You can nominate them anonymously, with great fanfare, just by name or with a detailed explanation of why you think a post is the best.  It can be a post from a criminal defense lawyer, a prosecutor or a non-lawyer, provided it’s subject is criminal law.  It can even be a post by a lawprof. You can nominate up to five posts.
  
• For this contest, and for this contest only, I will allow links to be included in comments to the posts (not just the blawgs, but the actual posts) nominated.  Spam links will be treated harshly.
  
• 
  

  This is a chance to think back over the year and give everyone some great posts to read, to ponder, to discuss and maybe even change some minds.

And just to be clear, it doesn’t matter if you’re brand-spanking new or an old hand, a dear friend or a complete unknown.  This is all about substance, not popularity, tribes, networking, branding or bonding.  If I smell anyone trying to use this as a marketing opportunity, they’re out of here.  Spam = banned.  If I smell anyone trying to use this for inappropriate purposes, it will end up backfiring. Trust me.

I invite anyone and everyone to offer the best the blawgosphere has in criminal law.  Spread the word, and let others know that this is their opportunity to show their stuff, get a backlink, and let the rest of the blawgosphere know what they’re doing.  

To avoid a problem that arose with last year’s nominations, I’m putting a limit on nominations of five posts, so no laundry lists this year.  This is about quality, not quantity. Put some effort into coming up with posts you think are best.  Yes, it’s hard work. Tough it out.

Nothing here at Simple Justice is eligible, so don’t waste a brain cell thinking about it. 

The winner will be announced on New Years Day.

Judging will be entirely on my shoulders, and I will be as arbitrary and capricious as I please, so there’s no complaining about the choice.  That said, I will do my best to select the blawg post that best reflects our finest work, our highest tradition, our deepest thoughts and our best purpose in putting words on a computer screen.  For anyone who doesn’t trust me to be fair, find a better offer elsewhere. 

Best of luck and I look forward to seeing some great stuff.

Clarification: First, all nominations must be in the comment to this post. DO NOT SEND ME EMAILS. You can comment anonymously if you want, but you have to do it yourself.  For the purpose of his post, I will not do the dirty work for you.

Second, this is for best blawg POST.  This means a specific post, not a blawg (or blog) in general.  You like X Blog? Groovy, but irrelevant for this purpose.

It’s not easy to appear dignified as you strut down the boulevard in hot pants and eight-inch spikes, yet that’s what’s demanded of candidates for judicial office.  Try running in eight-inch spiked heels. The reality is that candidates are constrained to use the limited fodder available to them, make it comprehensible to a broad array of voters who are unlikely to share the cloistered sensibilities of their overseers, and win their vote, if not their hearts and minds.

It Ain’t Pretty and We Should Not Pretend That It Is.

In Ohio, Mark Davis was sanctioned by a  public reprimand for “falsely stating his academic credentials,” and, outrageously, defiantly arguing his cause rather than cowering on the floor in remorse.

The record reveals the respondent equated the major and minor courses of study in his undergraduate education to additional degrees earned at Miami University and the Ohio State University Moritz College of Law. In addition, he designated a certificate earned during law school as an additional degree to his juris doctorate degree. The designation of major or minor courses of study and a certificate at institutions of higher education as separate degrees is not an accurate representation of the actual degrees awarded by each institution. Only two degrees were earned by the respondent, not six separate degrees in a seven year period.

Davis, as characterized by the court that ruled against him, argued that his majors and minors, as well as his certificate, were the functional equivalent of degrees, which was roundly rejected.  Between the lines, however, Davis’ point is not only clear, but quite understandable. He was trying to communicate educational accomplishments in a short yet understandable fashion to voters who may not share the court’s nuanced grasp of high education. 

It’s a clash of the technical against the practical, but as a candidate running for office, Davis was caught in a Catch-22.  He needed to get his point across to a group of voters who had neither the patience nor interest in a lengthy, detailed explanation that would likely be subject to misunderstanding anyway.  So he tried to cut it into a bite-sized nugget, for which he was publicly smacked.

Shari Michels found her eight-inch spiked heels similarly uncomfortable running for civil court judge in Manhattan, earning her  an admonition from the Commission on Judicial Conduct.

Judicial candidates are held to higher standards of conduct than candidates for non-judicial office, and the campaign activities of judicial candidates are significantly circumscribed in order to maintain public confidence in the integrity and impartiality of the judicial system.

Don’t wobble in those heels, ya know.

Respondent’s campaign literature, which was widely disseminated and which respondent herself had reviewed prior to its distribution, was inconsistent with the ethical standards. Viewed in its totality, the literature was misleading in that it juxtaposed respondent’s photograph with that of another candidate, Rita Mella – who had not given permission for her likeness to be used by respondent’s campaign – and positioned the language “Endorsed by the New York Times” in such a way that it could be construed as referring to both candidates, when in fact respondent did not have the Times‘ endorsement.

Except the palm card was produced by the political clubs who nominated Michels, as well as Mella, for the post.  As for the Times‘ endorsement, only two facts make the conclusion hard to swallow. First, there’s no finding (nor could there be) that it was misleading, but merely that it “could be construed” that way. That’s an awfully wiggly line to hang a candidate.

But the more significant issue comes from the card itself.  There just isn’t anything misleading about it.  It’s about as clear as one can get on a palm card that the Times’ endorsement refers to Mella rather than Michels. This was the conclusion of the hearing examiner, rejected by the majority, and called out in the Commission’s dissent, which reminds the prigs of the Supreme Court’s 2002 decision in Republican Party of Minnesota v. White, holding that even judicial candidates have First Amendment rights.

Of course, we all would prefer judicial campaigns to be elevated, substantive and non-political. However, we cannot characterize as prohibited political activity any conduct which is part and parcel of the very democratic process by which we elect most of our judges. The Supreme Court in White said it this way: “If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process… the First Amendment rights that attach to their role”

Rights? Make them walk the street and then give them rights? What’s next?

As a Commission, our duty is to respect both the First Amendment and the quandary this system imposes upon judicial candidates. It ain’t pretty and we should not pretend that it is. Therefore, we should give every judicial candidate the benefit of the doubt when there is any margin to do so. That’s the least the First Amendment demands and the least we can do to be fair to the judges who face this unenviable process which is necessary to ply their idealistic, supremely difficult trade.

No one suggests that judicial candidates should be slinging mud, or wrestling in it for that matter, since it’s nearly impossible to get the mud stains out of the hot pants.  But when you demand that they run in contested elections, run on party lines, run at the behest of political clubs who control their concerted campaigns for office, when the hell do you expect?

As the dissent states, judicial election campaigns create a quandary, a conflicting demand that reduces this futile exercise in Jacksonian populism to either a beauty pageant or a party line vote. Either way, it’s a big, old joke, except to the people who are constrained to shake hands, kiss babies, and hand out ugly palm cards because nobody has a clue whether they would make a good judge or not.

So the prigs will smack them for wiggling the hips seductively as they walk down the boulevard?  It’s the system you demand of them, and “it ain’t pretty.”  Either accept it and give the candidates reasonable and fair latitude to do as you demand, or get rid of it if it’s too ugly and adopt a system of appointments,  But don’t blame the candidates for failing to meet your smarmy notions of dignity.  There’s no dignity involved in running for judicial office.

H/T  Eugene Volokh and Steve Magas

When he took on Dick Heller’s case, it likely seemed like a lost cause. A good cause, perhaps, but an uphill fight the whole way. Up the steepest hill you can find. The steepest hill that never ends. Yet Alan Gura took it on, and because he did, the Supreme Court reversed its view of the Second Amendment to the Constitution, restoring it to a fundamental right, in  District of Columbia v. Heller.

For his efforts, District Court Judge Emmet Sullivan smacked him.  From the Blog of Legal Times :

It took six years for the attorneys for Dick Heller to win the D.C. resident, and all Washington residents, the right to possess handguns in their homes. The U.S. Supreme Court made its landmark decision in District of Columbia v. Heller in 2008.

It’s taken another three years for those attorneys, after a lengthy court fight with the District of Columbia, to be awarded their attorney fees.

In a ruling released Friday, U.S. District Judge Emmet Sullivan in Washington awarded Heller’s attorneys, led by Alan Gura of Alexandria, Va.’s Gura & Possessky, just over $1.1 million, about one-third of what they had requested.

To the uninitiated, a fee award of $1.1 million may seem like winning the lottery.  That’s because law is easy and it’s all wrapped up in an hour, like a television show.  They neither see nor grasp the reality, that Gura has dedicated nine years of his life to this case, without any assurance of either winning the point or being awarded a dime.  Regardless of whether you love or hate the fundamental personal right to keep and bear arms, you can’t ignore the accomplishment.

D.C.’s argument against Gura’s fee request in Heller was a diabolically curious one:

Sullivan noted in his 65-page ruling that lawyers for the city had claimed Gura’s team shouldn’t be allowed to “enrich themselves at the expense of the taxpayers” in a time of financial crisis. The judge made it known that he, too, was cognizant of the issue.

“Sensitive to the fact that the fees in this case will be paid by the taxpayers, this Court is left with the difficult task of closely scrutinizing plaintiff’s fee petition to determine what is fair, reasonable, and just compensation for the legal services of plaintiff’s attorneys,” Sullivan wrote.

The lawyers representing the District are paid from the taxpayer’s fisc, but lost no sleep at night. So is Judge Sullivan.  Gura, they argued, was trying to “enrich” himself, that greedy fellow.  Given that the Supremes concluded that Dick Heller was right about the Second Amendment, the government’s use of the rhetoric of evil to characterize the lawyer who fulfilled his oath the protect and defend the Constitution is worse than disingenuous.  If they were concerned for the taxpayer in a time of financial crisis, they should have given back their salaries, as no government lawyer should be paid to argue against the Constitution.

The Heller legal team claimed 3,270 hours of work went into the case. It was cut down by Judge Sullivan based on sloppy timekeeping by three attorneys who came from nonprofits, Clark Neily III of the Institute for Justice, and Robert Levy and Gene Healy with the Cato Institute. No doubt they reconstructed their hours after they won, being neither used to keeping time nor winning and being required to provide a bill for a fee award.

But Gura’s hours, more than 1500, could not be questioned.  What could, however, was their value.

Both sides argued to Sullivan that various matrixes and formulas should be used to determine the correct hourly rate. The plaintiffs’ team concluded that the rates should be $589 per hour for all of the attorneys except Huff, who had less experience. They argued Huff should be compensated at a rate of $361 per hour.

Sullivan called those rates “extraordinary” and not appropriate for this case. “[T]he Court is unwilling to award the high rates requested by plaintiff absent specific evidence that those rates are, indeed, the prevailing market rates for attorneys engaged in complex federal litigation outside of the District of Columbia’s largest law firms,” Sullivan wrote.

Gura’s rate was cut to $420, producing an award of about $662,000 for the six compensable years (but nine total years) he fought for Dick Heller.  That Judge Sullivan called the higher rate “extraordinary” has first year biglaw associates rolling on the floor laughing.  Their paralegals get nearly that much an hour for fetching them coffee. Plus a bonus this time of year.

The matrix employed to determine what, in Judge Sullivan’s words, is “fair, reasonable, and just compensation,” bears no relation to the real world.  From this fee comes the expenses of the case, from copy paper to rent to dial tone.  As this had to be paid all along, since lawyers aren’t given free rent until their ship comes in, Gura financed the defense of our constitutional rights. 

And most importantly, he did so with no assurance that he would win, and ever be compensated for his work.  Not impressed? Well, Gura’s family probably likes to eat every day, just like yours, and the supermarkets don’t let Gura walk out without paying any more than they do you.  Get the picture?

Regardless of whether you think the Heller decision was the greatest defense of the Constitution in a generation, or the worst thing to happen to society since the invention of the Taser, is irrelevant.  The message here is that an outsider fighting the status quo in the defense of constitutional rights not only does so on his own dime, but does so without much expectation of compensation even if he prevails.  This is an incentive to lawyers to stay clear of big cases, hard arguments, the overarching constitutional issues that need a champion.  What Judge Sullivan tacitly told Gura is champions go hungry.

For all the zealots who find it simple to spill a few thousand words on how clear and easy it is the scream about constitutional rights, somebody, some lawyer, has to be the grunt who actually makes it happen.  The risk he takes to secure your rights is enormous, enough to crush a person in spirit as well as financially.  You make silly noise about it.  The lawyer puts in the hard work, long hours, personal risk, that actually accomplishes something. 

Yet Alan Gura, for better or worse, accepted the responsibility of defending your rights.  For his efforts, he was taught an expensive lesson by Judge Sullivan.  For those of you who delight at his accomplishment, rather than send him a love note and your undying appreciation, send him a check, and send another one to the nonprofits who stood beside him.  This may be your entitlement, but its Gura’s work.  If you love your constitutional rights, show it by your willingness to pay the people who defended them for you.

Unlike the doll my sister left naked on the floor, this Ken has balls. Big, bright, shiny brass ones.  When  Marco Randazza described them the other day, he cautioned not to stare, as “we would be blinded by the reflection from their shiny brass surface.” 

His background isn’t quite what one would expect.  Stanford undergrad. Harvard law. Judicial clerkship leading to Assistant United States Attorney.  Smart, for sure, but more natural that he travels the path to big money at Biglaw, or embraces the sanitized world of government service, where his soft, clean hands would never have to touch the dirty hands of those accused of evil.

Ken remained hidden from view for quite a while, allowing him to straddle the world of political opinion without consequence while doing the work asked of him when he made the decision to walk away from the safe hallways of the government;’s wing of the courthouse.  Unlike others who hid because they lacked the guts to own up to their opinions, Ken hid to avoid the appearance of using his opinions to curry favor or seek business.  It gave him the freedom to be critical without suffering the idiots’ reaction that it was a ploy for self-aggrandizement. 

He has since chosen to out himself, meaning I’m now free to write about him.  He deserves it.

The blawgosphere is filled with people who talk tough.  Talking tough is easy, especially when its the sort of thing readers like to hear, beating up on the expected enemies, placing blame on the people we love to hate.  Even the insipid and self-promoting inhabitants of the Happysphere beat up on those listed in the approved enemies list.  But here’s the shocker:  Few, when push comes to shove, have the guts to be the tough guy in real life that they play on the internet.

There are only a handful of bloggers I would want behind me in a knife fight.  Ken White is one.  He’s the real thing.  When someone was needed to stand up, pro bono, for the cause he believes in, Ken was there.  When it was impractical because of distance, Ken was still there.

He may not wear his superhero cape out in public, nor have a pony tail to prove he’s special.  But if the measure of a man is his actions, then Ken White is one damn fine looking fellow.  Robert Redford, eat your heart out.

The end of the year is a wonderful time to look back and give some thought to things that stood out over the past year, perhaps in the hope that it will provide some inspiration to others to follow the path that’s more difficult, more demanding, and serves a greater good than collecting twitter followers and authentically engaging with self-proclaimed thought leaders who might toss you a case.  Ironically, Ken White is as much a thought leader as you will ever find in the blogosphere, though his thoughts aren’t likely to spur any celebrations from social media experts.  The end of the year is a good time to think about Ken White.

There are some very real, very bold, people to be found among the tepid and insipid who feign worthiness in both the courtroom and the internet.  You ought to know who they are.  If you need someone who lives the words he taps on the glowing screen, then look to Ken White.  He’s easy enough to find.  Just send out the Popehat signal.

Ken White stands for something.  He’s someone who matters.  Is anyone blinded by the reflection off your shiny brass balls? 

Addendum: An orthogonal point, as my pal J-Dog used to say.  In an otherwise interesting post, Heather Morse wrote:

How will ANYONE know what great work you are doing if you won’t promote it?

Perhaps this post answers the question.  Be worthy of recognition, do great work, and others will sing your praises.  If no one else does, perhaps that’s an accurate reflection of your work. If you’re left to promote yourself, chances are exceptionally good that you do nothing worthy of promotion. Sorry if this hurts your feelings, but you are not Ken White.

Thirty years ago, would a young and less mealy-mouthed Joe Lieberman, the disgrace of Connecticut, propose criminalizing BIC pens, or maybe IBM Selectrics, for facilitating communication by terrorists?  Ridiculous as that sounds, it’s hardly impossible.

Via Kevin O’Keefe at  Real Lawyers Have Blogs (yes, that Kevin O’Keefe),

Now Shurat HaDin, an Israeli law center, is threatening to sue Twitter unless the social network cuts off access to terrorist groups, including Hezbollah.

Msnbc’s Suzanne Choney, reports the center’s attorney and executive director, Nitsana Darshan-Leitner, wrote Twitter:

…[I]t has come to our attention that Twitter, Inc. provides social media and associated services to such groups as Hezbollah and the Al-Qaeda-affiliated Al-Shabaab — labeled as “foreign terrorist organizations” (or FTOs) by the United States.

Please be advised that providing social media and other associated services to terrorist groups is illegal and will expose Twitter, Inc. and its officers to both criminal prosecution and civil liability to American citizens and others victimized by terrorisms carried out by Hezbollah, Al-Shabaab or other FTOs.

This comes on the heels of some other developments at the forefront of blaming the tools of communications as the culprit in the spread of ideas some prefer not to hear, even despise. 

• A week ago, Sen. Joe Lieberman began an effort in Congress requiring Twitter to block pro-Taliban accounts.


• Earlier today, a Boston Court refused to a quash a subpoena demanding account information of a Twitter user involved in Occupy Boston.


• Earlier this month, three WikiLeaks associates filed an appeal of a court order that would force Twitter to hand over information from their accounts without a search warrant.

You had to know that Joe Lieberman would manage to stick his smarmy nose in the middle of anything remotely stinking of censorship and prior restraint. 

To the extent there is a culprit in this effort to silence the sounds that offend official ears, it certainly isn’t twitter. Or Google, Facebook, LinkedIn or any other medium, any more than one can blame a BIC pen for writing words we don’t like.  They’re just the tools by which things get passed around, in this case those “tubes” that comprise the “internets” that Washington leaders have heard so much about.

So why Twitter?  Because they can. They know where to find it. They know how to threaten it. They know that it is run by real people, identifiable and locatable, who they believe can be made to cower and cringe. 

And the funny thing is (using “funny” in an ironic, awful way), the Joe Lieberman’s of the Senate, the judiciary, the government, are likely right.  The laws are already in place, and continuing to be developed, for the purpose of criminalizing the medium by which communications used by our “enemies” are transmitted.  It would feel better if these were happening in far off backwater nations, but they’re championed by our very own “leaders,” who do so in the name of protecting good from evil at any cost.

Every day, tens of thousands of new twitter accounts are opened, the only criteria being possession of a keyboard and internet access.  Any fool can open a twitter account, and they do.  So too can a terrorist, a criminal, and a philosopher.  And it’s killing our martinets that they can’t reach into their computers and grab by the scruff of the neck every voice they find despicable.  They are outraged that our fabulous American technologies are being subverted for use by our enemies, and fully expect true patriots to throw upon their doors upon demand so they can root out these evil doers on their networks.

And what’s wrong with ridding society of those who would harm us?  Why should businesses be immune from challenge, above participation in cleansing of evil from out midst?

Had the target been telcos, they would have not only bent over backwards to offer up any information sought by law enforcement, but served coffee and donuts to the hard-working men and women sifting through records.  Of course, their kindness would be repaid by  retroactive immunity for violations of old laws never intended to criminalize cooperation with the government.  How could cooperation with the government be wrong?

The new “tubes” that make up the interwebz haven’t been nearly as compliant.  Whether they aren’t as inclined to bend over at the first sight of a federal agent, or believe that the moment they become willing supplicants to governmental involvement, the integrity of their glorious experiment is lost. 

Twitter, in particular, has  demonstrated it’s fortitude in refusing to yield to the demands and threats.  Given it’s position at the crossroad of technology and communication, it seems nearly impossible that twitter’s intransigence won’t make Lieberman’s blood boil and launch a thousand new regulations designed to make its officers shake in their boots.

Of course, there will come to a point where the volume of subpoenas, lawsuits, prosecutions, laws, regulations, investigations, indictments, perhaps some new Writs the Lieberman’s of government will dream up, will suffocate a new and thriving medium until it chokes.  Or there will be final showdown where our elected officials, and their appointed minions, come to grips with the fact that their compulsion to blame the messenger, the medium, because they are legitimate and findable and real, will be a death blow to invention and progress.

Let twitter stand firm in its refusal to capitulate to Joe Leiberman and his ilk.  Let them pass law after law criminalizing any enterprise that spells out the name or our sworn enemies, Al-Qaeda, Hezbollah or Taliban, Occupy Somewhere, Anonymous or Wikileaks.  And the prosecute them. Along with the roads they drive on, and the BIC pen in their pocket, and the light bulb makers that illuminate their evil caves at night. 

These sputtering saviors of American order can rationalize how they do all this to save us from evil and protect us from our enemies. That’s always been a favored excuse, so no person is ever hurt again.  When they come for Twitter, I hope Alexander Macgillivray gives me a call.  If Twitter is up for the fight, so am I.

My pal Dan Hull of  What About Clients/Paris? fame, gets around more than I do, spending a lot of time jetting between his various offices.  This means he gets to overhear what people on airplanes say.  Like, “can I get an extra bag of peanuts?”  Or “the guy’s fat is spilling over the armrest and onto my seat and giving me the willies.”

Every once in a while, Dan hears something profound, like this on Delta Flight 1537, departing Cincinnati for San Diego,

No one wants to be alone. So what does the Net offer non-business humans? Only this: the illusion of companionship and support without the demands and responsibilities of friendship.

–A passenger.

Know anybody who thinks their twitter followers really care deeply about them?  You know, the sort of person who rushes through dinner with the spouse and kids to share his pain online?  Or has to get back to the internet because someone has written something about her and she has to respond or their feelings will be hurt?

You are all, no doubt, very wonderful people, but we don’t really know one another. There are real people, however, who do know you.  Some will like you and others won’t, but they’re real.  You can shake their hand, touch them, ask them for a favor and get turned down. 

Maybe you have 10,000 friends on Facebook.  Maybe you have 50,000 twitter followers.  Maybe you have 100,000 blog readers.  How many will drive you to the office if your car breaks down?

There is nothing wrong with enjoying the digital world, feeling the glow of a community that doesn’t exist in real life, yet surrounds you with approval that no flesh and blood person ever did.  But do they disappear when you turn off your computer?

Don’t let the shiny toys distract you from what’s real.

Over at Volokh Conspiracy, Orin Kerr raises an interesting question:

What limits, if any, does the Fourth Amendment place on the use of a trained drug-sniffing dog to approach the front door of a home? The police might do this to see if the dog will alert for the presence of narcotics in the home, which might then be used to help show probable cause and obtain a warrant to search it. Under Illinois v. Caballes, the use of the dog around a car is not a “search” and therefore outside the Fourth Amendment. The question is, does the Caballes rule apply when the dog is brought to the front door of a home rather than a car? A divided Florida Supreme Court ruled in Jardines v. State that Caballes does not apply and that probable cause is required to bring the dog up to the home for a sniff.

There are hundreds of different investigatory practices that the police might use to collect evidence, and there is no single guide for how to classify particular practices as a “technique.” At the same time, the law interpreting the Fourth Amendment has to end up classifying each use of each practice somehow. This creates lots of line-drawing and classification problems that come up in Fourth Amendment law all the time. In my view, the earlier case of a dog sniff around a car was tricky because the use of sense-enhancing devices often raise hard problems: Everyone agrees that use of human senses can’t themselves violate the Fourth Amendment (eyesight, hearing, smelling, etc.), and the Court has held that the use of some sense-enhancing devices is okay (such as flashlights) while the use of other sense-enhancing devices crosses the line and becomes a search (such as the use of thermal imaging devices on a home).

Putting aside that hearsay is admissible in suppression hearings, is a “woof!” admitted for the truth of the matter asserted?

While it’s never supposed to be uttered, judges sitting in criminal courtrooms presume the defendants who come before them to be guilty.  It’s just a matter of probability, knowing full well that the vast majority will plead guilty and, indeed, are guilty.  The question isn’t whether they deserve to be hauled into the dock, but how bad they are.  That’s the range of thought.

What one never quite sees when looking down from a criminal court bench are the ones who never made it to court. Little thought is given to the more than half a million people in New York City who are subjected to stop and frisk every year, then go about their day because the cops found nothing.  The connection between how the system treats those in custody from those who were rousted and cut loose is tenuous.  They weren’t arrested; isn’t that enough?

Then comes a guy like 54-year-old Tomas Torres, another “isolated incident” as Radley Balko sarcastically calls it.  So what if it happens regularly, as long as we can chalk it up to an anomaly that allows the rest of us to sleep well at night.  Torres’ home was the target of a search warrant, and the Connecticut State Police exploded in and did their job.  The job included beating Torres and ripping his home to shreds.



That’s what it looks like when you’re an isolated incident.  No drugs were found.

Judges can accept the violent nature of a search warrant, the boot firmly planted on a man’s face to make sure that no cop will be harmed, because they only look into the faces of the presumed guilty.  In the back of their heads, they hear a little voice that whispers, “he made the choice to be a criminal, and this is the consequence.”  There may be a pang of empathy, but it’s overcome with the righteousness of taking a criminal off the streets.

The problem is that Tomas Torres’ face won’t be seen by a criminal court judge.  The judge who signed the warrant, maybe even skimmed the warrant, won’t see the fruit of his labor.  The people who aren’t arrested disappear in the mist.

The judge who signs the warrant trusts that the police who seek it have done their homework, paid attention to details and have good reason to break down a person’s door.  There is no hearing to consider the evidence behind the warrant.  There is no deep deliberation that goes into the decision to authorize police to do what they did to Torres.  It’s quick and dirty.  It’s trust.  No contrary voice challenges it, reminds the judge that these cops are about to rip apart a life, to stomp on a person without a second thought, without the slightest concern for the pain he will feel or the scar he will carry.

And judges go along with the plan, because they see only the people who commit crimes.  No one walks Tomas Torres in for arraignment, to tell the judge how they beat him and destroyed his home, then came up empty.  No one explains to the judge how they could have been so wrong as to do this to a person who committed no crime, made it a thousand-fold worse by the utter disdain of the sole of their boot imprinted on his innocent face.  No judge has to stare into the eyes of the man whose life was affected by their signature.

There is no room in the system for anyone other than the parade of criminals to walk before a criminal court judge to remind them that not everyone is guilty.  To the extent innocence enters into the mix at all, it’s the outlier who beats the charges. No thought is given to the person you never see.

Of course, this criticism is unfair and naive.  The warrant was sufficient, saying all the words that were needed to authorize the raid.  You have two minutes to consider it in your busy day. The words blur, become pro forma. There’s no one to challenge the warrant, and most of the time they find what they’re looking for.  And if you were to raise a doubt, you would become a pariah in the courthouse. Or worse, the target would murder someone tomorrow and you would be on the front page of the New York Post as the worst judge ever. Go with the odds. Trust the cops. They’re right more often than their wrong.  Mistakes happen. Somebody has to take one for the team.



Explain that to Tomas Torres. I’m sure he’ll understand what a difficult job you have.  I’m sure he won’t mind being sacrificed to the odds.  After all, it’s not like you will have to look down from the bench and see his face before you.  In your world, they’re all bad guys.  They’re always bad guys.

Being very much a part of the Establishment, even though my role in it is to be the contrary voice to a society that adores order above all else, it scares me.  I’m no faux anarchist, imploring other poor schmucks to violence and mayhem while I sit in the comfort of an office, my biggest risk a paper cut.

At the same time, I’m well aware that the pen isn’t always mightier than the sword. Sometimes, I wonder whether the truly powerful would have invented the blawgosphere as a catharsis, a way for everyone from curmudgeons to the disaffected to get out all those nasty counterculture ideas without doing any actual harm. And the powerful continue with their daily routine, untouched by disagreeable thoughts.

That there exists a group, if it is indeed a group, who possess the technological skills to disrupt the best laid plans of the government and its quietly effective friends is both scary and, in a peculiar way, encouraging.  No entity, not even the ones that allow establishment types to enjoy the normalcy of their lives, should be above fear.  Power corrupts. Absolute power corrupts absolutely. No one should possess absolute power.



Anonymous, hackers possessed of the ability to make the steel walls of the internet seem like Swiss cheese (or at least that’s how it seems to tech-challenged me), hasn’t taken kindly to SOPA, the monumentally ill-conceived the Stop Online Piracy Act.  Neither has anyone else with even a rudimentary grasp of the the internet, except for those who will have a direct financial benefit from wreaking needless havoc as a weapon of financial control. 

While guys like me may rail against governmental actions, Anonymous plans to strike at the heart of the problem.