Officer Jones: Which box should I check off, inventory search, search incident or because we could?

Officer Smith: It’s Tuesday. Tuesdays are always inventory search, kid.

Officer Jones: Sorry, I forgot.

At Concurring Opinions, Santa Clara Lawprof Kyle Graham bemoans his plan to engage in empirical analysis of the impact of the 2009 Supreme Court decision in Arizona v. Gant.

A little while back, I was considering whether to undertake an empirical study into whether law enforcement officers were relying on the inventory-search exception to the warrant requirement more often after the United States Supreme Court’s 2009 decision in Arizona v. Gant, which pared back the search-incident-to-arrest exception to the warrant requirement insofar as it applies to vehicle searches.

Some have suggested that, given the number of exceptions to the warrant requirement that exist, the diminution of one exception will simply lead to the expansion of another. I thought that the post-Gant scenario would provide as good a setting as any to test this hypothesis, especially since it’s been said that officers are relying on the inventory-search exception to the warrant requirement more often in the wake of the Gant decision.

Graham offers no hint who has been spreading these vicious rumors, but surely it would be useful to know whether the Supreme Court’s decision is having an impact on the manner in which cops conduct vehicle searches and seizures.  Unfortunately, this study was not to be.

I decided not to perform the study, however, after a casual conversation with a local police officer. After I described the proposed inquiry to him, he said, in essence, “Don’t bother.” When I asked why, he told me that the numbers would almost certainly be skewed by the fact that the post-Gant era has coincided with substantial layoffs at local law enforcement agencies, due to the recession.

As a scholar, it would seem that Graham would immediately respond that he can address this problem in about 30 seconds with some quick statistical fix to adjust for the reduced number of cops due to layoffs.  Well, maybe more precisely he can get a frosh taking Statistics 101 to handle it for him, without missing a single fraternity party.  But there was more bad news.

These layoffs would affect my results, the officer added, not only because they resulted in fewer officers, but also because (given last-hired, first-fired seniority rules) more recently hired officers were disproportionately affected by these cuts, and more recent additions to the force tend to be more eager than senior officers are to impound vehicles and perform inventory searches on them. And so, if the data reflected fewer inventory searches, or about the same number of searches, these totals might represent the recession-affected demographics of local police departments, as much as anything else.

This argument, unlike the raw numbers of cops being paid, is far more persuasive.  Rookies are enthusiastic.  Rookies get bored sitting around waiting for the donuts to come out of the oven.  Rookies want some action.  “Senior officers,” not so much.  They’ve been there, done that.  The thrill of catching some punk with a few marijuana seeds in the ash tray is gone.  Old guys watch the calendar to see when they can put in their papers and go full time on their bird house building business.

What raises this to a matter of interest, as opposed to an example of desperately seeking something to write about, is that the underlying question is whether Gant changed anything.  Gant? Seriously?

If you recall, Arizona v. Gant was an outlier of the worst order, where police were so utterly cavalier as to concede that they ignored every conceivable justification for a search incident, an inventory search, any of the vast multitude of automobile search exception rationales.  It was the automobile search taken to the extreme, with a boldness that smacked of cops being so utterly disdainful that they could actually admit to a sequence of events that rarely happens, and is never openly spoken.

And this is what is worthy of empirical analysis?  Because it’s likely to happen, maybe, twice?

More to the point, had Graham persisted in his study, adjusted for the fact that cops have been laid off, and older cops are too lazy to do the job for which they’re due a pension, the outcome would have provided a basis to show what? 

The tacit requirement for such a study is that cops honestly and accurately report the basis for their conduct.  There are forms (there are always forms) with boxes to check off, or fill in, or something, to “explain” how it came about that they conducted a search.  And the boxes offer the well-recognized, well-worn exceptions.  There is no box that says, “we searched because we wanted to, and it’s not like anybody can stop us.”

Does the lawprof suspect that the police are going to write a note saying that they engage in routine violations of the 4th Amendment?  Or perhaps that they will sit their in angst-ridden struggle with their consciences to make certain that they are brutally honest in specifying the reason why they tossed a car?

The stories in the trenches of why the cops searched a particular defendant, or his car, or his bag, or whatever they had to search to find whatever they had to find, tend to be long on routine and short on detail.  Whether it’s a furtive gesture, or the plain view observation of a gun sticking out from under a car seat, or undue nervousness when subject to routine questioning during a car stop (because so many of us aren’t nervous at all when stopped by the cops), the stories all blend. 

This isn’t an accident. Regardless of whether you think cops and brilliant or stupid, they are certainly smart enough to remember the handful of explanations that make a search pass muster.  But there was never a box to check that said “because we felt like it” that had to be removed after the Supremes decided Gant.  Did anybody think otherwise? 

Kyle Graham was dissuaded from his empirical study because of a concern that the numbers wouldn’t honestly and accurately reflect police reaction to Gant.  Empiricism isn’t all it’s cracked up to be.  Of course, this isn’t exactly an “unexpected impediment,” but rather an impediment that might not be noticed or appreciated by the naive in search of an empirical study.

It took the federal government three years to figure out what Maricopa County Sheriff Joe Arpaio had been telling everyone all along.  He doesn’t care for immigrants. He likes pink underwear. He’s not inclined to concern himself much with civil rights. As if he was called “Crazy Joe” because it was a really cool name.

Via the Associated Press :

The federal government issued a scathing report Thursday that outlines how Maricopa County Sheriff Joe Arpaio‘s office has committed a wide range of civil rights violations against Latinos, including a pattern of racial profiling and discrimination and carrying out heavy-handed immigration patrols based on racially charged citizen complaints.

The report, obtained by The Associated Press ahead of its release, is a result of the U.S. Justice Department‘s three-year investigation of Arpaio’s office amid complaints of racial profiling and a culture of bias at the agency’s top level.

Shocking stuff.  A scathing report. Scathing.

The Justice Department‘s conclusions in the civil probe mark the federal government’s harshest rebuke of a national political fixture who has risen to prominence for his immigration crackdowns and became coveted endorsement among candidates in the GOP presidential field.

What the AP calls the “harshest rebuke” is what Crazy Joe calls his next re-election commercial. If Joe is really lucky, President Obama will make the announcement himself,  somewhere between signing off on indefinite detention of American citizens and empowering the entertainment industry to control the internet.

But surely the feds didn’t waste a three year investigation into the obvious without a purpose, an end goal that would conclude Crazy Joe’s jihad against people with accents and vowels at the end of their names.

If the sheriff’s office doesn’t turn around its policies and practices, the federal government could pull millions of dollars of federal funding.

However will he buy a second tank?  There is enough wiggle room in that demand to drive two tanks through. 

While this may be the first time Crazy Joe has been lambasted by an authority he can’t grab by the neck and toss into a desert tent, the impotence of the government is the only thing shocking about this report.  No one needed a report to announce the Joe was a rampant civil rights violator. That’s his claim to fame as America’s Toughest Sheriff.  He sent his posse into Latino neighborhoods to lasso up whoever they could find and sort ’em out later.  And this is why they elected him Sheriff.

What is breaking news here is that the United States of America, facing down a crazy old man whose bizarre ideas and methods have flouted the Constitution, leaving behind a wake of human beings (most of whom, remarkably, look to be of Mexican descent) who have suffered the indignities that are never supposed to happen in this great nation.  And the best the great nation, the most powerful on the face of the earth, can do is “harshly rebuke” him and threaten to withhold cash? 

In a country with 3,500 criminal laws and 300,000 criminal regulations, Crazy Joe remains in office, a job that gives him shields, guns and a tank, after having snatched groups of people off the street without any pretense at lawful basis and imposed his personal brand of punishment for the misfortune of not being “his kind” of people?  Don’t try this at home, folks, because the feds will crucify you.  You are not Joe Arpaio.

If Crazy Joe could have paid for a report from the current administration that would establish, for all the time, his imperial hegemony, this would have been it.  Merry Christmas, Joe. Love, Barack. 

The life and times of Joe Arpaio, the insanity produced by his every move, his every utterance, his every violation of basic precepts of this nation, have been the subject of much discussion and ridicule.  The good people of Maricopa County told us in the very beginning that we didn’t get it, we didn’t appreciate the power this man holds over his desert fiefdom, and the appreciation of the lighter-skinned locals for keeping the darker-skinned one’s down.  They explained that his minions could do whatever they pleased, and no one, no judge, no elected official, no legislative body, could stop him. 

We scorned their cowardice in failing to stand up to this man.

And now he has made the federal government, the full might of the United States of America, bow to him.  The absolute worst they could do is point the fickle finger of shame and tell him to stop being mean or maybe, just maybe, they won’t send him gift cards in the mail.

We were wrong. I was wrong.  Crazy Joe Arpaio wins, and the federal government, its testicles shrinking and being sucked up into its tummy, has proven itself incapable of standing up to an old man who favors pink underwear.

Sure  Harvey  Silverglate said it. I said it. You probably said it too.  And now former Attorney General under the iconic actor, Ronald Reagan, Ed Meese, has said it too.

There are about 4,500 criminal statutes, said Edwin Meese, attorney general under President Ronald Reagan and now with the conservative Heritage Foundation. “This is in addition to over 300,000 other regulations that don’t appear in the federal code but nevertheless carry essentially criminal penalties including prison,” he said. “So the vast array of traps for the unwary that lurks out there in federal criminal law is more extensive than most people realize.” The Administrative Office of the U.S. Courts figures some 80,000 defendants are sentenced in federal court each year.

Most lawyers have never had the pleasure of a client charged with violating the regs.  There is a regulation for everything. I mean everything. And it seems as if every one carries a sentence, as the only way for the government to clobber anyone who doesn’t comply.  It’s malum prohibitum on steroids.  It’s mens rea out the window. It’s nuts.

How nice of Ed Meese to be so bold as to challenge the insanity now that he’s no longer AG.  Everybody gets smarter and tougher when they have no political capital on the line.  I don’t doubt his sincerity. I doubt his timing.  Didn’t he notice any of this when he held the reins?  At least he said something in time for Bill of Rights Day.

Nathan Burney persuasively rips the heart out of the 300,000 (and this is a guess, as nobody actually knows how many crimes actually exist) regulatory crimes.

Problem.

Crime is defined by society, not by bureaucrats. Crime is something that is so bad that society deems it worthy of punishment — of the government forcibly taking away your liberty, your property, your reputation. Crime is serious, and should only be created by the legislature. People who have no business defining new crimes are now doing it all over the place. That’s problem one.

Problem two is that these people have no clue what they’re doing. They don’t know what crime is, why it’s punished, or how it is defined by our jurisprudence. What they do know is strict liability — simply breaking the rules, regardless of knowledge or intent, is enough for sanctions.

Nathan argues that only Congress should have the authority to convert regulatory control into a crime, and this seems so overwhelmingly obvious as to defy the need to explain.  That leaves 300,000 regulatory crimes with some ‘splainin’ to do.

But what of the 3500 (again, just an estimate) crimes that Congress, in its collective wisdom and need for re-election fodder, has created? 

“We ought to get rid of the old myth that you’re presumed to know the law,” said Rep. John Conyers (D., Mich.), a member of the subcommittee.

Certainly the fact that our elected representative, the guys who vote for these laws, don’t have the slightest clue what they’re criminalizing would suggest such a thing.  If they don’t know what conduct is criminal, how the heck are the rest of us to know?

But that still doesn’t confront the core issue.  There is no American, short of an infant or a quadriplegic centenarian in an iron lung, who can be confident that they won’t commit a crime today.  While not every bad act is criminal, statutes criminalizing mundane, unintentional, unharmful conduct abound.  The Big Three, conspiracy, wire/mail fraud and lying to a government agent probably captures most of our population, if anyone was inclined to check.

The story appeared in the Wall Street Journal, which makes it far more real than just Tim Lynch at the Cato Institute sounding the alarm.  When the words come out of Ed Meese’s mouth rather than mine (or Tim’s), they mean a whole lot more.  Whether it’s enough to get it into the hearts and minds of Americans, and elected officials who want to be re-elected, is another matter.  The only time we can sure it becomes clear is when they or a loved one is indicted. That’s when the epiphany happens.

As Ma and Pa Kettle “tsk” about some bad behavior that appears in the paper, and tell each other there ought to be a law, they need to come to grips with the fact that the farm is subject to a few thousand regulations about which they know nothing, and the violation of which will put Pa into pinstripes.  Chances are pretty good that nobody down at the United States Attorney’s office is thinking about what Pa did wrong today, and he’ll finish milking the cows and plowing the back 40, whatever it is that Pa Kettle does, without incident.

And that’s how America will go on, comfortably numb.  Until the day somebody gets a bee in his bonnet and decides that you need to learn a lesson. 

For those of us who appreciate the discussion, whether we call it “peer review” or just interaction, there is one problem that never seems to end, and compels mention even though it’s been discussed to death before.  You. The commenter. That’s right. You.

Brian Tannebaum had a fight on twitter with some law student who argued about the right to be anonymous online, which she argued allowed commenters to be honest rather than the self-censor because someone might identify them and hold their comments against them.

@LawStudentDiary hiding isn’t the answer.

Brian Tannebaum – But you’re anonymous.

Then after the typical nasty shit that happens when someone like me tries to talk to someone like her, @lawstudentdiary says a couple interesting things:

You either allow people to be anonymous and thus be honest, or you have real people, who have to self-censor.

and

If no one was allowed to be anonymous, you wouldn’t have hardly any commentators.

This lapsed into the old Publius argument.

Comments fall into a number of different categories.  Some are the presentment of ideas that stand or fall on their own, and the speaker’s identity neither adds nor detracts from the value of the idea.  These constitute a relatively small segment of the comments, as few true concepts are presented that are not dependent on a value judgment (or normative, as the lawprofs love to say)  which is meaningless without knowing who is doing the talking.  Is the commenter a lawyer?  What type of law does she practice?  How much experience does she have?  What axes does the commenter have to grind?  The list goes on. 

Some argue that these things shouldn’t matter, and they are correct when the comment is limited to a stand-alone idea, but absolutely wrong then the comment is value laden.  The value of a commenter’s opinion can only be judged in context.  A comment along the lines of “Justice Scalia is an idiot” means nothing in itself.  No one, especially me, gives a hoot what some unknown commenter thinks about Scalia.  It’s a totally worthless comment and a waste of my bandwidth.  You have no right to waste my bandwidth.

One type of comment that is particularly irksome is the bald assertion of fact by some anonymous (or pseudonymous) commenter that is just factually wrong.  While some writers spend a great deal of time researching, reading, discussing a particular issue, someone will come along and assert the opposite, neither basis nor explanation given. It’s trolling, but it can really screw up a discussion, hanging there without response.  There’s no good reaction to this, and it just screws up an otherwise decent discussion.

Then there are the comments that violate every known logical fallacy, not necessarily at the same time.  These often come from people all juiced up over a particular issue, and they argue vehemently a point that, in their mind, is just totally, irrefutably, brilliant.  And what they expect, no demand, in return is acknowledgement of their genius and a concession that all differing views are now proven to fail.  Except their argument is illogical, and they lack the capacity to understand why.

The problem isn’t just that these sorts of comments are illogical, but that the commenters, already heated up, think them worthy of a full blown, deeply detailed, response that addresses their point.  A prime example happened the other day.

John J. Olson wrote:

Mr. Greenfield, one of the odious features of the legal profession today is the padded bill. It comes in many forms, from the $1/page copying fee to charging an associate’s time at a partner’s rate, to billing two clients for time spent working on one case, to sending two lawyers for a task one could do. This is consumer fraud but the organized bar tolerates it. The clients’ only defense against bill padding is to force lawyers to compete on price, which Shpoonkle is doing.

SHG wrote:

Padding bills is odious, but there’s no logic to say the “only defense…is to force lawyer to compete on price.”  The two have no rational connection, and completely ignores the massive problems the pervade schemes like this.  There’s no disagreement that affordability of legal services is a significant problem that needs to be addressed. That doesn’t mean every scheme that appeals to simple minds is a solution. 

Try as I might to explain, albeit briefly, this person (and whether he’s John J. Olson, or who John J. Olson might be is a mystery) was sufficiently outraged by my response to leave this comment at Paul Caron’s blog:

Bobby B. is perfectly right about Scott Greenfield. I commented on “Simple Justice” that bill padding is one of the dishonest practices that has given lawyers their reputation for dishonesty, but lawyers who compete on price can scarcely afford that since they will be undersold. Greenfield’s reply said I am irrational, simple-minded and illogical. Offer him an argument and he’ll give you a rant.

Posted by: John Olson | Dec 12, 2011 5:20:41 PM

One of the first things you realize when you have a blawg is that there is no IQ test required to buy a keyboard. I’m reluctant to toss comments that are critical, as I suspect the catharsis of letting stupid or crazy people post comments prevents mass murders at post offices, but it gets tiresome trying to explain basic logic to people disinclined or incapable of understanding. 

There are a lot of people out there, and most of you have keyboards and internet access. This doesn’t mean you have something to offer.  Other than bloggers in the Happysphere, who close comments so never is heard a discouraging word, most blawgers actively seek a discussion of the subjects that interest us enough to write about them. Comments that try to hijack the discussion down some other path are annoying; if we wanted to talk about that, then we would have written about it.  Often, the other path was the subject of another post, another discussion, and the fact that the commenter doesn’t know about it doesn’t change the fact that it’s not the subject of this discussion.

In dealing with @LawStudentDiary, Brian was, shall we say, a bit terse.  She didn’t understand why Brian didn’t accept her arguments as brilliant, her reasoning as irrefutable. She has a  pseudonymous blog where she’s dispensing advice to other law students, because this 2L thinks she has advice to offer. Not having read it, I can’t say, but I doubt it given her inability to grasp Brian’s point and her lapse into claiming that only anonymous commenters can be honest.

But I can say that commenters can be one of the most, but more often, least enjoyable parts of blawging.  Dealing with the egos, attitudes and ignorance of people you neither know nor, frankly, care about is a royal pain, made far worse when you’re busy and they demand your time and attention when they contribute nothing.

If you’re so brilliant, write a blog and let the world know.  If the world agrees, they’ll flock to you and make you the king.  But some of us have heard your spiel a hundred times and it sucked every single one of them. It’s no better coming from you.  You don’t know that your thought, your argument wasn’t magnificently original?  You didn’t know that credibility makes assertions matter, or not?  You didn’t know that such a thing as logical fallacies exist?  You don’t have the guts to own your thoughts?  You don’t want to take the heat for your opinions? You didn’t know that you’re not Publius?

Then don’t waste my bandwidth.  Don’t waste anyone else’s bandwidth.  And while I expect you, a visitor to my home to be civil and respectful, you don’t have the right to demand the same of me. This is my home. I make the rules, and if you don’t like them, leave.

I love comments. And I hate them. Every single day.  I probably say to myself twice a day that they aren’t worth it. And then somebody comes along and writes a comment that is just totally great, and makes my day.

I learned that Lamont Pride was charged with the murder of New York City Police Officer Peter J. Figoski when a call came in from a reporter. She first explained that she got my name from a friend, a reporter for whom I provided background in the past, and would explain the aspects of the legal system that enabled her to not appear completely ignorant when writing a story.

Would I be willing to do the same for her? The implication wasn’t clear at first, but became clear very quickly.  She gave me a quick and dirty run down of the facts, that a judge in Brooklyn cut the shooter loose even though he had a open warrant from North Carolina for aggravated assault. “Isn’t this wrong,” she asked?  “What’s the procedure?”

I explained, as best I could given the limited information, that it was up to the prosecution to ascertain what exactly that meant, aggravated assault, and whether North Carolina authorities wanted him badly enough to come get him.  The reporter was completely dissatisfied with my response.

“It was aggravated assault,” she insisted. “AAAAAGGGRAAVVVAAAATED.” I conceded that it certainly sounded very scary, but crimes generally do.  What it actually mean, however, was another story.  If it was murder, we would all get it. Murder is clear.  Aggravated assault, not so much. “It could have been a fight while wearing a glove, for example,” I explained.  I told her that I wasn’t a North Carolina lawyer and hadn’t researched the statute, so I couldn’t begin to tell her what aggravated assault meant.  Just because it sounded scary didn’t mean if was consequential.

“On the other hand,” I added, “it could be very serious. I just don’t know. You really need to speak with a North Carolina lawyer.”  But her assumption, that there was some heinous wrong hiding within the aggravated assault, was undermined by the fact that Pride had been free in North Carolina following the charge, so if North Carolina let him out, why should New York take the charge more seriously than they did down south?

She wasn’t done with me, however. Her new line of inquiry questioned my statement that it was up to the prosecution to determine whether the nice folks from North Carolina wanted to execute the warrant. “Don’t they have to,” she insisted?  Why no, they don’t. Warrants can happen for tons of stuff, some very important and some trivial. It’s a matter of allocation of scarce resources.  Is this warrant, this defendant, important enough to send a couple of cops to New York, fly them up, pick up the defendant, and bring him back to North Carolina to face the music?  It’s their call whether to hop on a plane or say “never mind.”

“Isn’t it better to be safe than sorry,” she asked?  I tried to put it in perspective for her, that maybe a thousand people (a number I pulled out of thin air) go through the New York City court system with out of state warrants.  Over a ten year period, maybe one of them, after release, will do something terrible and make everyone cry foul over the release.  Do you keep 10,000 presumptively innocent people in jail for fear that one will commit a crime?

She wasn’t pleased with me at all.  She wanted me to tell her that someone screwed up, completely blew it and the result was a dead cop.  That makes for a headline, someone to blame.  Here, it was hard to find someone in the system to carry the load. Sure, the defendant, Lamont Pride, the alleged shooter of a cop, was to blame, but that’s run of the mill.  She wanted a better villain, the cops or the court, and I couldn’t oblige.

The  New York Times says that the Brooklyn judge who freed the defendant on a minor drug charge on his own recognizance (to out of towners, this means without bail), was told that the North Carolina warrant was for a shooting.  It seems they’ve chosen Brooklyn Criminal Court Judge Evelyn Laporte as the fall guy for having released Pride ROR.  They’ve chosen poorly.

After the fact, information comes out, but everybody forgets that judges can’t make decisions based on after-acquired info.  The media is particularly unhelpful in this regard, fudging the details of who knew what when, and even publishing articles that contradict their earlier articles.  The  Times knew better than to blame Judge Laporte.

The Greensboro police have told varying stories this week about their efforts to hunt for Mr. Pride. None of them showed much urgency. Perhaps the response would have been different if Mr. Maberson had been shot somewhere more vital than his foot.

The day after his arrest in New York, the police in North Carolina issued a warrant for his arrest. It went into a national database maintained by the F.B.I., with a warning that he was armed with his handgun, and included the following notation:

“Extradite in North Carolina only.”

In early November, when the police raided an apartment in Brooklyn, Mr. Pride was among three people arrested on drug charges. He was not the target of the raid, and when the police prepared his arrest record for the court, a stamp appeared prominently on the cover: “No hit.”

That is, there was no hit on a warrant that could be acted on — the authorities in North Carolina had already stated that they did not want to bring him back to face charges for the shooting of Mr. Maberson unless he was arrested in their state.

During the arraignment of Mr. Pride and the others in the drug case, the Criminal Court judge, Evelyn Laporte, was told about the warrant for his arrest in North Carolina. The Brooklyn prosecutors asked for $2,500 bail, which is a high amount for the kinds of charges that he faced in the drug raid. The transcript of the hearing shows that the judge, concerned primarily with the welfare of two children living in the apartment, released him without bail.

Since the news broke that Jerry Sandusky likes to shower with children, his lawyer, Joe Amendola, has been a non-stop source of important examples of things lawyers shouldn’t do and amusement.  The only thing preventing commentary about why Joe’s a bonehead is that Joe did something new, something else, that drew attention away from his prior gaffe.

Former District Attorney Amendola, disproving yet again that prosecutorial experience is inherently transferable to criminal defense. made a curious decision to waive the preliminary hearing to which his client was due.  As  Jeff Gamso describes it:

A prelim would provide discovery.  It would trap in transcript today’s version of the stories told by the witnesses.  It would provide material for cross-examination.  That’s no small thing.

On the other hand, those salivating reporters would splash every detail of those stories over the tabloids, over tabloid television, and even over the mostly-staid media like the Times.  And of course there would be the twitterers and the texters and the e-mailers and (yes) the bloggers. All of which taint the judgment of those 6 potential jurors who haven’t already concluded that Sandusky is at best an incredible sleazeball.  So avoiding that hearing might be wise.

What interests me is what his lawyer, Joseph Amendola, said.  Not the part about how a prelim would serve no real purpose because he wouldn’t be allowed to challenge the credibility of the witnesses or about how this is a fight to the death.  I’m interested in this statement Amendola made to the press.

Today’s decision was a tactical measure.

Well, sure.  I mean, we all know that.  But, and here’s the thing, it was inexcusable to say it.

If the impregnation of a teen client wasn’t enough to make Jerry Sandusky think twice about his choice of lawyer, this might: After Sandusky waived his right to a pretrial hearing yesterday, Joe Amendola told reporters that anybody who believes Mike McQueary witnessed his client raping a boy and university administrators failed to act “should call 1-800-REALITY.” That number is actually a gay sex line that offers “bulging, bursting pleasure with horny gay, bi, and bi-curious studs,” Deadspin finds.

Amendola later said that “1-800-REALITY” is something he says “when people have said things that make no sense,” the AP reports. “It’s analogous to ‘get a life,'” he said. “I had no idea that was a real number, let alone what it actually is. I will not be using that line in the future!”

Stanley Fish from Yale may be perpetually late to the party, but that doesn’t mean he’s not going to have his say.  In his  New York Times opinionator column, Fish weighs in on the never-ending argument against  David Segal’s article calling out legal academia and the  Times’ editorial calling it a crisis. To save space, Fish lumps it all together.

The question asked by an article and an editorial published recently in this newspaper is whether what my students have learned will be of any help to them when they enter practice. At first glance the answer seems to be “no,” if only because Berlin, Locke, Rawls, Hobbes, Kant, Unger and Rorty (writers whose work took up half the semester) are not currency in legal arguments; citing them in front of a court or in a memorandum is likely to be regarded at best as window dressing and at worst as showing off. (Not to mention the fact that few practicing attorneys are likely to be engaging with religion-clause issues anyway.)

It’s always nice to start a discussion with a strawman, given that the issues raised were a bit broader and more fundamental than mere utility, such as the reality that students leave law school incapable of performing any function of a practicing lawyer, rather than merely questioning the efficacy of a particularly obscure area of study.  But that aside, Fish proceeds.

One can, however, make the case that the practice of law is more than a technical/strategic exercise in which doctrines, precedents, rules and tests are marshaled in the service of a client’s cause. The marshaling takes place within an enterprise that is purposive. That is, law is more than an aggregation of discrete tactics and procedures; it is an enterprise informed by a vision of how the state can and cannot employ the legalized violence of which it is the sole proprietor. That vision will come into view in the wake of a set of inquiries. What obligations do citizens owe one another? How far can the state go in enforcing those obligations? What restrictions on what the state can do to (and for) its citizens should be in place? How do legal cultures differ with respect to these issues?

An interesting formulation, given the incongruent mix of questions.  After all, the obligations citizens owe one another is clearly important to understand everything from torts to criminal law. How other legal cultures differ from ours? Not so much. An interesting discussion for a day, perhaps, but a diversion from hard work, like a human interest sidebar in a newspaper story. We enjoy it, but unless we’re chatting with some Swedes at a cocktail party, it never comes up again.

Fish, using an analogy that proves he’s not a New York Giants fan, contends that understanding the law, as opposed to merely “doing it,” requires a deeper grasp.

So it is with law. The expert practitioner is expert in part because when he listens to a client or walks into a courtroom the field of action is already configured for him by an internalized understanding of what could possibly be at stake in proceedings like these.

This must be an extraordinarily deep idea, as I lack any clue what it means.  But Fish finally comes to the gist of his argument:

In his response to Segal’s essay, Brian Leiter, a professor of law at the University of Chicago, rejects the question of whether what one learns in law school is of any help: “The criterion of scholarly inquiry is whether it makes a contribution to knowledge and understanding, not whether it ‘helps.’” Leiter adds that what he calls “genuine” knowledge often does help with “a host of concrete and practical problems.” But he refuses (rightly, I think) to justify the academic study of law on that basis, for, he explains, “it is the central premise of a research institution that the measure of its achievement is the quality of the scholarship, i.e. its contribution to knowledge — whether of law or biology or literature — not its practical payoff in the short-term.”

The emphasis on practical short-term payoffs has already laid waste to the traditional project of the liberal arts, which may not survive. Is the law next? The law is surely a practice but it is also a subject, and if it ceases to be a subject — ceases to be an object of analysis in classrooms and in law reviews — its practice will be diminished.

This is where Fish lays it on the line, and the line is drawn as brightly as Leiter possibly can.  Perhaps there ought to be a course of study in the academic art of the law, maybe leading to a very impressive Ph.D. and useful in developing the next generation of scholars to teach their intellectual descendants.  But this ain’t law school.

The glaring failures of Fish’s argument (and Leiter’s, upon whom he relies), is that few, if any, of the students paying for space in their classroom are doing so with the intention of pursuing the “academic study of law,” as if it was an extension of their liberal arts education, a wonderful way to prepare for grad school or a position in the food service industry.  Theses students comes through the door for the purpose of learning how to be lawyers, to practice law.

Is a decent understanding of the theory behind the law important to the practitioner? Sure. It’s interesting, fun and helpful when pulling up that “internalized understanding” of what’s at stake. But it’s neither and either/or proposition, and its most assuredly not a Ph.D. program in deep legal theory, while practicing lawyers learn their craft somewhere else.

What makes Fish’s attempt to defend against Segal’s view unavailing is that he dreams of a school that teaches something wholly different than his students are there to learn.  So if Yale wants to create a grad program in legal theory, leading to a glorious Eli Ph.D., who’s stopping it? 

I suspect the classroom, with Fish at the lectern, will be empty, as it’s a degree only an academic could love. But hey, maybe there’s a budding scholar or two who will happily attend.  It just won’t be law school students, as they plan to be lawyers, not legal philosophers, in the perhaps vain hope they can some day find work and change the world. 

Notably, even Fish’s source of inspiration, Brian Leiter, felt compelled to  add in a caveat to distance himself from this lovely Ivory Towered vision:

12/13 UPDATE:  I appreciate Professor Fish’s link to this piece, but I should emphasize that my point is that immediate practical utility is not the benchmark for serious scholarship; law schools should, of course, also teach lots of things of practical utility, and they all do.

Whether “they all do,” and whether they all do so to the extent that’s needed to produce budding lawyers capable of doing lawyer-type stuff as well as thinking deep lawyerly thoughts, is indeed the question. From the perspective of the legal scholar, whose connection to the practice of law may be distant, or even non-existent, law schools may seem pretty darned tradeschool-like already.  From the practitioner’s chair, there is a long way to go before you would trust a graduate to find the courthouse.

But Fish’s argument, too extreme even for Leiter (and that’s extreme, baby), provides an excellent opportunity to see just how far apart the academy is from the trench.  The breeding of baby scholars is fine, provided that’s what they signed up to learn and they’re happy completing their education fully-equipped to recite Kant but incapable of drafting the simplest of motions. Maybe there is a need for universities to create a new program designed to study the academics of law.  Maybe there is a demand for such a course of study, comprised of the liberal arts of law.

Just don’t call it law school.

When the story first made the rounds, the focus was on Carrier IQ, the “evil” company whose rootkit program in your smartphone tracked your keystrokes. It was scandalous. It was outrageous. It was either harmless or insidious, according to who was doing the talking.

In short, Carrier IQ is only providing network and end-point analysis tools, and what happens to your data they collect afterwards isn’t their concern. We know however that, far from simply collecting anonymous data, according to Carrier IQ’s own description of their Mobile Service Intelligence : “What’s more, the combination of the MSIP and IQ Insight lets you move seamlessly from broad trend data across many users, through comparative groups down to diagnostic data from individual devices. Now, not only can you identify trends, you have the power to drill down to specific instances, giving you the insight your specialists need to make a difference. That is the power of Mobile Service Intelligence.”

It all sounds so harmless… until you see among other things Carrier IQ’s tools are capturing your text messages.

What wasn’t mentioned at the time was who was not doing any talking.  That would be your friendly, neighborhood FBI.  And they still aren’t, which is pretty much the only answer needed.  Via Andy Greenberg at Forbes :

Want to know if Carrier IQ, the dialer- and location-sniffing software installed in millions of phones, is being used by the FBI for law enforcement investigations? The FBI won’t reveal much about the controversial application. And why not? Because, the Bureau says, doing so might interfere with ongoing or prospective law enforcement investigations.

Whether they were on the case from the outset, or figured out as the scandal broke that Carrier IQ had something that was really useful, isn’t clear.  What’s clear now is that if they didn’t know about it from the beginning, they surely do now.

That’s the strange and potentially revealing logic the FBI used earlier this month to deny a Freedom of Information request filed by Michael Morisy, a blogger for the website Muckrock.com. After a video surfaced that seemed to show the software logging keystrokes and monitoring data traffic on the more than 140 million phones on which it’s installed by default, Morisy had asked the Bureau for any “manuals, documents or other written guidance used to access or analyze data gathered by programs developed or deployed by Carrier IQ.”

The FBI responded that the material couldn’t be provided, and cited an exemption to the Freedom of Information law for situations in which handing over documents “could reasonably be expected to interfere with law enforcement proceedings.”

As Greenberg notes, this doesn’t mean they already have their hands on your text messages, or even that there’s any cooperation on the part of Carrier IQ.  Indeed, there may be a passel of issues surrounding any effort to gain access to every keystroke you ever tapped on your smartphone, though it would appear that since it’s in the hands of a third party, no Fourth Amendment right attaches.  On the other hand, since no one knew this was happening, and it came as a huge, and scandalous surprise to the public, a court should be hard pressed to conclude that it passes scrutiny under Katz’s reasonable expectation of privacy test.

But now you do know. And so does the FBI. And as long as you continue to tap, tap, tap on that cute little qwerty keyboard, you can’t deny you took the risk of exposure to the government by Carrier IQ.

We’re inundated with the magic of technology, making our world easier, faster and perpetually more fabulous.  Those who adore technology gush over every shiny new toy.  And to a large extent, the toys are great fun and occasionally useful.  But nobody wants to be serious about the perils.  And there is no shortage of perils.

My deep understanding of all things technical precludes me from discussing the potential of evils that could stem from this rootkit.  I don’t even know what a rootkit is.  But I know too well that the government will have no qualms about using it to their advantage if they can get their hands on it.  I know too well that innocuous text message, commonly shorthand missives designed to provide a quick detail or word to a recipient who already knows the gist of the communication, can be easily spun into some nefarious conspiratorial act. 

They are vague by nature, and vague opens a person up to interpretation at convenience.  Anyone who has ever read draft transcripts of wiretaps knows only too well how “see you at 3 with the package” turns into “plan to meet at 3 to conclude multi-kilo narcotics transaction,” even if it happens to refer to a holiday fruit cake.  Who wants to take the stand to testify to a fruit cake?  Who has the video to prove it?

By the time a court rules that some technology I’ve never heard of is so common and pervasive that no reasonable person could expect privacy, the cutting edge is already a thousand light years ahead of it.  I learn about it via some of the more technologically astute (and, naturally, younger) lawyers, like Keith Lee, but so does the government.  If there’s data to be mined, they’ve got their pith helmets at the ready.

So enjoy those new, shiny toys.  Tap to your heart’s content.  Hang in the clouds.  Eventually, we’ll find out whether you had some unexpected company with you, and by the time it reaches a circuit court and a decision is made about how unreasonable you were to expect that your private, personal communications and messages would remain private, it will be too late to worry about it.  By then, you will be informed that everyone knows that there’s no privacy in the technological, digital, shiny toy world.  But by then, it will be too late to worry about it.

Yesterday, a swarm descended on  an old post here about a mutt of a concept, Shpoonkle.  The reason for the sudden “interest” on a post from last March was a story in the Chronicle of Higher Education, a bit puffy and somewhat inaccurate, but including some of my thoughts about this mutt.

Although I spent a good deal of time explaining to the author, Katie Mangan why this was a terribly bad idea for lawyers and clients, and the substantial ethical problems associated with essentially every aspect of it, she stuck with the sound bites rather than the substance.  No matter, as any attorney worth his salt knows the problems already, and few “legal consumers” read the Chronicle, and would have to come to realize why this is could be ruinous to them on their own.

As a result, however, something happened here that is far more serious and disturbing than its mere existence.  It revealed, again as it did when my post first appeared, that it’s battle against sound judgment and ethical constraints appears to be waged by a war of deception, by a gaggle of commenters whose job it is to defend the business and deceive.  While Shpoonkle is an ethical morass in concept, its execution in reputation management appears to be nothing short of a deliberate scheme to deceive. 

Reading through the comments received, only one in favor of this scheme appears to be legit. This is consistent with the comments from when the post was first published. They all carry the same earmarks, anonymous “gmail”-type email addresses, no links to websites, people who have never commented here before and suddenly appear for this post, and comments that are carefully designed to defend the business, though simplistic, as if the ideas of, oh, law students or marketers who lack sufficient depth to understand what lawyers already know, or what is meaningful to lawyers.  In other words, shills.

The problem isn’t really about Shpoonkle, which has proven to be a non-starter for lawyers. They managed to capture a total of 2100 lawyers, by their own claims, since starting the business,  If true, which is doubtful, this number is so small and inconsequential as to reflect a wholesale rejection by lawyers despite many being in desperate straits.  So the business is dead, as well it should be.

What it does reflect, however, is a business model that is being defended by lying on the internet, shills pretending to be supporters and defenders, lawyer haters and bashers. The first time Shpoonkle’s shills tried to spam me, I got tired of it and stopped allowing the comments after a while. Yesterday, I decided to let them go through, so they would serve as an example of how low things can go.* And while amusing in their absurdity, they were pretty darn low. 

Meet the future of deception. Consider a business designed to market legal services based on the lowest price, and its marketing scheme is based on using shills to lie about it.  Talk about adding insult to injury.

Curiously, SJ wasn’t the only blawg to be the target of the swarm.  The Chronicle article was also mentioned by Paul Caron at Tax Law Prof. While Paul’s blawg is certainly well known and regard among academics and lawyers, it’s now exactly a place for non-lawyers to hang out.  There was no mention of Paul’s blawg in the Chronicle article, yet there they were, the swarm of lay commenters offering the same sort of nonsense and attacks as here.  I asked Paul whether these comments/commenters reflected his norm and, of course, he told me they didn’t. 

To the extent it’s even remotely conceivable that there are bunch of people who so desperately adore a business that they spend their day trolling the blawgosphere in defense of it (and in infantile attacks on me), this would be the blawg they attack.  But there is no explanation for the comments at Tax Law Prof other than shills. 

One of our ethical obligations is to alert and educate others to potential violations, to educate both the public and the profession to things that could do grave harm to clients.  It’s of no consequence that the harm comes from a 22-year-old entrepreneurial law student named Robert Niznik, who thinks he’s come up with a way to beat the system.  As Katie Mangan asked when we spoke, wasn’t I being harsh given that Niznik was only a baby and could hardly be expected to understand the implications of his concept with maturity and depth.

Asked whether he had any qualms about unleashing his tirade, which also mocked the name of the new site, against a then-21-year-old student who was about to enter a brutal job market, Mr. Greenfield said, well, no. “You don’t get a pass for youth. This isn’t a lemonade stand.”

While Niznik may be a kid, and think like a kid, the people who are affected by schemes like his aren’t children. They’re real people with real interests at risk. The harm isn’t mitigated by Niznik’s youthful limitations or job prospects. If he wants to play with real people’s legal interests, he has to do so within the ethical framework that applies to big boy lawyers, not just foolish children.

That Niznik either doesn’t grasp the ethical implications, the conceptual failings, of his scheme is of little consequence.  Most law students don’t seem to have much of a grasp on ethics and the enormous potential for harm they could cause, especially when its offset by the potential of their making a few bucks.  Nothing, it seems, trumps their entitlement to do anything that might make them some money.

On Niznik’s part, he see’s his detractor’s as “bullies,” the new fad word for every child who isn’t coddled.

As for his critics, “The good news is that bullies always lose in the end.”

And shills are the path to success?  There have been no shortage of new schemes to suck in the desperate, both lawyer and client, on the internet.  Like Shpoonkle, many have a superficial appeal to those who lack the capacity to grasp where they could go horribly wrong, or are desperate enough to ignore the monumental problems in the race to the bottom.  And if, like Shpoonkle, they are fraught with ethical dilemmas and enormous potential to do harm, there is an obligation to protect others from the carnage.

And us “bullies” who take note of them will be the target of their marketing tactic of shills.  So be it.  This is the ethical burden we bear as lawyers, to not avoid the responsibility of challenging these schemes no matter how many shills call us names.

* While I allowed the shill comments yesterday to the original Shpoonkle post, the same won’t be allowed here.  I gave them their chance to make a few dollars by posting their nonsense, but that’s as far as my tolerance goes.  Maybe they can start a blog about Greenfield the Bully where they can write all about how mean and evil I am. 

Update:  I’ve been asked by a reader (who has also asked that I not identify him) to spell out the reasons behind my “harsh” view of schemes like this.  While I trust that much of this is obvious to lawyers, I see no harm, aside from wasting a reader’s time in doing so.

This isn’t intended to be an exhaustive list, but it suffices to make the point.

1. Clients are engaging a lawyer about whom they know nothing except the lawyer’s self-assessment, a notoriously unreliable metric.  This is different than other bad sources, such as billboards or the Yellow Pages as the clients don’t engage the lawyers until after they meet them, giving the client at least a minimal opportunity to assess the lawyer’s merit.

No reasonable person expected Joshua Komisarjevsky to be sentenced to anything but death for the heinous murders of Jennifer Hawke-Petit and their daughters, Hayley Petit, 17 years old, and Michaela Petit, 11, in Cheshire, Connecticut.  And the jury obliged.

The only real question was fast or slow.  And fast, a sentence that he be put to death, is a misnomer.  Since 1937, only two people were put to death in Connecticut, the last in 2005, when Michael Ross was executed for serial murder committed between 1981 and 1984. 

The death penalty is a matter of religion, some certain of its necessity while others certain of its barbarity.  The sides argue the point regularly, but it only plays to those who already share the same religion.  Nobody is persuaded to convert because of the zeal and fervor of adherents to another religion. Komisarjevsky, with his co-defendant Stephen Hayes, also sentenced to death, certainly aren’t the poster boys for the anti-death penalty adherents. There was no doubt of their guilt, and the crime was just horrible.

Other states, more inclined toward putting people to death, make for a more serious debate over the death penalty, as guilt is at issue and the crimes are more pedestrian murders.  But not here. Not in Connecticut.  In the case of the Cheshire murders, it’s purely religion.

Except that those whose faith supports the execution of the killers are of the belief that the extra bit of retribution that comes of pushing the plunger, flipping the switch, lighting the pyre, matters. In this respect, the sentence of Komisarjevsky and Hayes makes for the perfect focal point of debate, unladen by the collateral issue of innocence.  Even race, a very real and, in other places, overarching failure of the capital punishment elsewhere, plays no role here. 

No matter what the jury decided, Komisarjevsky was going to be sentenced to death.  The only question was whether it was going to take as long as nature required, or it was going to come in a few decades when the plunger is pushed. 

At the moment, with Cheshire still fresh in the minds of those paying attention to the case, this seems to matter.  And it seems to matter a great deal.  Will it matter as much 20 years from now?  Will both Komisarjevsky and Hayes still be alive 20 years from now?  Will the visceral need to inflict pain and fear, to do harm in return for harm, still be there 20 years from now?

When the Supreme Court held that the death penalty was unconstitutionally arbitrary in Furman v. Georgia, and states could no longer put people to death, until the Supremes changed their mind in Gregg v. Georgia, the debate continued to rage.  The reaction could have been that we were satisfied with putting these heinous killers to death slowly, but that wasn’t good enough for the majority of Americans.  They demanded death.

The arguments against the death penalty, in a vacuum, hardly seem to be capable of satisfying the religion of its supporters.  They just don’t seem to turn enough heads, if any, to change things.  While the argument of innocence, applicable in other cases, carries significantly more suasion, there is a disconnect between those who are unquestioningly guilty, not realizing that they have no ability to draw the dividing line between those who are definitely guilty from those who, 20 years later, turn out not to be but surely seemed definitely guilty at the time.  It’s hard to break down religious beliefs with reason. There is no intersection between the two.

The only question is whether the sense of immediate retribution that comes from the imposition of the death penalty, as opposed to the longer term retribution that comes from the imposition of a sentence of life without parole, will do the trick.  If the name of the sentence, life without parole, were changed to “long death sentence,” would that be sufficient to satisfy the need to respond to brutality with brutality?

The discussion over the sentence of Komisarjevsky and Hayes has been raw and emotional.  It hasn’t been burdened much by thought or reason.  There just isn’t much by way of thought or reason that contributes to the discussion.  There are only two things that really merit much consideration.  First, that both of the defendants will ultimately die at the hand of the state.  Second, that death by lethal injection brings at most a brief sense of satisfaction to those who believe in the faith of capital punishment. 

For Dr. William Petit, his family is still gone.  For the followers of the religion, they will go back to their lives and jobs, as Komisarjevsky and Hayes will spend the next 20 years having the details of their punishment scrutinized.  It’s not like they get to enjoy a good execution on TV next week.

And even if this doesn’t apply to either of these killers, it’s not a bad thing if the execution takes a while, just in case science is improved or witnesses change their claims and it turns out that the definitely guilty person isn’t as guilty as they seemed.

Either way, if they are guilty, they get the death penalty, and people of all religions can come together and pray.  No matter which faith captures your heart, there is no choice but death.  And it’s not entirely clear that one is worse than the other.

Update: More on the issue, by someone who has an intimate familiarity with the death penalty that I do not, read Jeff Gamso’s Dog Bites Man.