For a long time, social media was trying to establish itself as the new kid in town.*  Take it seriously, its cheerleaders screamed.  Pay attention, it’s sycophants moaned.  Jump on the bandwagon or die, its adherents admonished. 

The late adapters who held back, who just didn’t care all that much or didn’t know the magic secrets, since everybody assumes there are magic secrets, came to realize that it was here to stay, in one form or another.  Whether it’s websites, blogs, Twitter, or Google Plus (is it even still alive?), it seemed like everybody was eventually working their way to the internet, and the internet wasn’t going away. 

For the handful who chose to be cautious, they stuck in a toe and tried to figure out what it all meant.  For those who had some extra cash in their marketing budget, they hired the nearest geeky looking kid to be their guru, since the assumption on the part of everyone who doesn’t own an iPad is that every teeny-bopper knows everything there is to know about the internet.  Slowly, Luddite were coming around, hearing about the new Gold Rush and thinking they were missing out on their nugget.

While we’ve come nowhere near the majority of lawyers playing the internet for all it’s worthy, there are certainly tons more than there used to be.  And what has this produced?  Noise.

Now that everyone is a marketer, many people are looking for a louder megaphone, a chance to talk about their work, their career, their product… and social media looks like the ideal soapbox, a free opportunity to shout to the masses.

But first, we’re told to make that number go up. Increase the number of fans, friends and followers, so your shouts will be heard. The problem of course is that more noise is not better noise.

The story of how Police Officer John Turner killed Roger Anthony is almost sufficiently underwhelming as to make the most curious part why anyone in North Carolina chose to name a town “Scotland Neck.” 

At 61, Anthony was no kid. There are no twists or turns in his conduct, aside from the sole allegation that he took “something out his pocket and put it into his mouth.”  Isn’t it amazing how somethings as utterly innocuous as that, coupled with a death at the hands of police, makes one’s mind begin to calculate the potential nefarious things it could be?

But it’s all imagination.  The story itself is brutally banal.

[O]fficers had responded to a 911 call Monday night about a man who had fallen off his bicycle in the parking lot of a bank. The caller told dispatchers that the man appeared drunk and may have hurt himself.

When Police Officer John Turner arrived, he saw Roger Anthony pedaling along 10th Street and followed in his patrol car. Turner put on his sirens and lights and yelled for him to stop, but Anthony continued to ride away, police said.

Scotland Neck Police Chief Joe Williams said Turner saw Anthony take something out his pocket and put it into his mouth. Turner got out of the car and yelled for Anthony to stop. When Anthony didn’t, the officer used a stun gun on him, causing him to fall off of his bike.

He was brain dead on the ground.  Anthony’s sister, Gladys, said that he suffered from seizures and was hard of hearing.  And now, a man whom police sought to stop, assuming he was the same man referred to in the 911 call, presumably to see if he was hurt, is dead.

While there are elements to this story that leave questions open, there is one that would seem to offer no question whatsoever. There was no reason whatsoever to tase Anthony.  Naturally, the first comment to this story questions this assertion:

How was the officer to know he was hard of hearing?
Besides what was he doing riding around on a bike it he can’t hear traffic, car horns and sirens. He already had fallen off of his bike and appeared to be under the influence of something. That also is considered a DUI.
These idiots just bring on their problems and then get the police involved and society.

He’s right, at least in one respect.  We idiots “just bring on [our] problems.”  We assume that the only reasonable course is immediate compliance.  Forget our right to be left alone, that Anthony did nothing to suggest any criminal conduct giving rise to the officer’s right to stop him.  Most people wouldn’t fault the officer for trying to inquire, in light of the 911 call. 

Forget that Anthony had hearing problems. Sure, it’s hardly unheard of that people who walk, or ride, down the street have disabilities of one type or another. They aren’t branded and can look just like “normal” people.  But the default assumption is regularity, normalcy.  Officer Turner wasn’t crazy to assume that Anthony, riding a bike on the street, could hear his command to stop.

But these aren’t the reasons why we are idiots.  The reason we are idiots is that we have allowed our government to put a Taser in the hands of police officers without either the policies, training or fear of misuse that is critical to trusting cops with their use.  The most idiotic thing we can do is provide police with a easy trick to make their job so easy that they feel entitled to use it at will.  The most dangerous thing we idiots to is give a weapon to an idiot.

The death of a person isn’t absolved by asking a stupid question.  What else could Turner have done? How about nothing.  Since he lacked probable cause to believe Anthony had committed a crime, and assuming that Turner heard the siren and the command and chose to keep pedaling, Turner could have shrugged his shoulder, assumed Anthony was not in need of assistance, and gone on his way.

And if Turner just couldn’t bear the thought of ending the encounter without somehow asserting his dominance, how about driving his cruiser in front of Anthony, sirens roaring, lights ablaze, so that Anthony couldn’t possible be unaware of his presence and purpose.  The story suggests that Turner was always out of Anthony’s line of sight, apparently behind his bicycle rather than in front of it.  Was Anthony that speedy a biker or was Turner’s cruiser especially slow?

Regardless of what Turner could have done, there was one thing that can’t be done, at least if someone has half a brain and no justifiable need to cause obvious collateral harm.  You don’t tase someone on a moving bicycle.  Or, for that matter on a moving motorcycle.  The cops’ credo notwithstanding, the “less than lethal force” of the Taser will assuredly lead to the less than kind force of the pavement.  Not even the order of a cop alters the laws of physics.

As the response to the commenter queried, if the cop didn’t have a Taser, would he have pulled out his handgun and shot him?  Of course not, as that would have reflected poorly on Turner during the brief subsequent inquiry that will naturally exonerate him.  Anthony, despite the innuendo of putting something in his mouth, had done nothing bullet-worthy.  We seem to be able to discern things that demand a bullet from things that don’t.  Still, we have such trouble with Tasers.

There’s a tendency to focus on the most outrageous, most venal, abuses by police that end up in a spectacular death.  Sometimes, death comes at the hand of an idiot.  And the person who dies, Roger Anthony this time, is just as dead.  And his death is just as needless. 

H/T Steve Magas

While the But For Video series of posts tends to be used to show that misconduct and abuse of the sort claimed for decades, and denied or ignored, does in fact happen, sometimes the person protected from outrageous claims is the cop.

As Eric Turkewitz writes,

In Matter of Dear, a guy gets a speeding ticket for going 85 in a 55 zone. Said guy happens to be a lawyer. And said lawyer, who is also an orthodox Jew, tries to blast his way out of the ticket with this humdinger of a letter:

“Ladies and Gentlemen:

This ticket shall be dismissed immediately since –

a. there was no speeding and the officer refused to show me evidence that there was: (i.e. – “not guilty”)

b. even if there was speeding (which there wasn’t) – I was in a 65-mph zone NOT a 55 mph zone; and

c. The officer called me a “jew kike” – and this prejudice obviously was the cause for the ticket.

I am a licensed attorney in NY State and will be representing myself in this matter (contact details enclosed).

Eliot Dear
[signed] Eliot Dear Esq.
[business card attached]“

Ouch. You know where this is going, right? The cop had a video camera on the car, unbeknownst to Dear. And the cop was wired for audio.

In case you aren’t entirely clear where this is going, Turk explains. 

There’s a tendency, particularly on the part of lawyers who are not engaged in the practice of criminal law, to think that they are above the law, capable of throwing their considerable weight around by mere virtue of being a lawyer, and immune from scrutiny.  You’re not.  You have no right to be a liar.  If you do wrong, no one cares that you (along with half of New York City) are a lawyer.  And no one will weep about your getting nailed.

Turk has the details on what happened to Dear, who must have thought himself incredibly brilliant to come up with the false “jew kike” defense to something as vitally important as a speeding ticket.  While it would be even more wonderful if everyone, like cops, who lie through their teeth were similarly held to account, clearly Dear earned what was coming to him. 

This time audio and video exonerated the cop, as it should have.  Never forget that it’s a two-way street.

Scott Millard needs to win an award, because he took a bullet.  Judge Kenneth Post, on the other hand, is a disgrace.  Via WoodTV, Millard was before Post in Hudsonville, Michigan, district court when the fine judge decided that he no longer liked the whole constitutional thing anymore.

JUDGE POST: (to the defendant) When they give you a drug test today, are you going to be clean or dirty?

MILLARD: (My client) is going to stand mute to that question, your honor.

POST:  He’s not going to stand mute. He’s either going to answer the question or I’m going to remand him to jail.

MILLARD: Your honor –

POST: You can have a seat.

MILLARD: Your honor, I’m –

POST: Sit down.

MILLARD: I’m Counsel, your honor.

POST: I’m encouraged. Both of you sit down.

MILLARD: I’m his attorney, your honor.

POST: I’m encouraged.

MILLARD: (My client) has a 5th Amendment right.

POST: Counsel, I’m setting bond. There’s two ways we can do this. I can give him 30 days from the date that he last used to be clean, or I’ll remand him to jail until such time as he’s clean and then we’ll go from there.

MILLARD: And I –

POST: Would you please be quiet? I really appreciate that. Thank you.

MILLARD: I apologize.

POST: (to the defendant) When was the last time that you used controlled substances? Let me have the date please.

MILLARD: Your honor, (my client) has a 5th Amendment –

POST: I’m not charging him with using controlled substance, Counsel. He’s not charged with that charge. I’m interested in getting a clean, honest bond response. Now, if you don’t want to do that, you can leave. Your call.

MILLARD: (My client) has a 6th Amendment right to assist, effective assistance of counsel.

POST: That’s right. And that’s not what he’s getting at the moment.

MILLARD: Your honor, I strongly disagree with that.

POST: I’m glad.

MILLARD: I’ve been nothing but respectful and I will always be respectful to the bench.

POST: Then would you please let him answer my questions?

MILLARD: (My client) has a 5th Amendment right not to make admissions, and, your honor, the manner in which this proceeding is being conducted, strongly has the, at least I’m getting the sense that it threatens to tread on that 5th Amendment right.

The judge and the attorney went back and forth for a bit on the 5th Amendment, the court’s ability to order drug testing and the attorney’s suggestion to set a date for his client to take a drug test. Then —

POST:  I’m not interested in what you think. Haven’t you gotten that yet?

MILLARD: I have gotten that, and I… understand that, and your honor, the court fully, certainly has the right to not care what I say. How —

POST: Thank you. Then be quiet. … (Then, to the defendant) When was the last time that you, the date that you last used controlled substances, sir?

Millard interrupted and stopped his client from answering.

POST: One more word, and I’m going to hold you in contempt.

Soon after, as Millard continued to bring up the constitutional protections his client had, Post cited him in contempt and fined him $100. Millard continued to speak up on his client’s behalf.

Every once in a while, a story like this, of an attorney who was given a choice of whether to risk his own skin or sacrifice his client, comes along.  Few lawyers will show the guts to take the contempt, to refuse to allow their clients to be bullied.  They won’t sit down. They won’t shut up. They will take the bullet.

Awards are given out by criminal defense bar associations to lawyers who have the ability to fill a table with warm bodies.  They should be given to lawyers like Scott Millard for having the guts to risk his own wonderful life in order to protect his client from a judge like Post.  It may not be much, but Millard gets the Simple Justice Lawyer with Balls Award.

And Judge Kenneth Post, filled with self-importance and god-like power, wins nothing, and hopefully the powerful folks in Michigan will swiftly make certain that he is never in a position of power over anyone again.  May he choke on his robes.

H/T Tim Farhill (the Australian one)

Update:  As noted in  Jim Majkowski’s comment below, somebody got 30 days for what happened here, and it wasn’t Scott Millard. Sometimes, the right thing happens, though one could rightfully question whether Post has any business being on any bench anywhere.  Thanks to Jim for the update.

From the 9th Circuit decision in Gonzalez v. Wong, partial concurrence/dissent of William A. Fletcher, a public service announcement.

The underlying case was resulted in the death penalty based upon a jailhouse snitch, with massive Brady issues giving rise to a reversal and remand,  But Judge Fletcher believed the Circuit could resolve the Brady issue without remand, and offered this in explanation.

In October 1988, Los Angeles Sheriff’s Department deputies learned that a jailhouse informant, Leslie White, was writing an article in which he planned to explain how informants were acquiring knowledge about defendants they had never met in order to fabricate those defendants’ confessions. Report of the 1989- 90 Los Angeles County Grand Jury, June 26, 1990, at 69 [hereinafter “Grand Jury Report”]. White agreed to demonstrate the technique to the Sheriff’s Department. The report of what White did is worth repeating in full. The report does not identify White by name, but refers to him as “the informant.”

Just the lead-in. Here’s the beef.

The sergeant gave the informant the name of an inmate who was being held in the Hall of Justice Jail on murder charges. The informant, representing himself to be an employee of a bail bond company, called the jail’s Inmate Reception Center and was able to obtain the inmate’s booking number, date of birth, color of eyes and hair, height, weight, race (Caucasian), bail ($100,000), case number, date of arrest, arresting agency (Sheriff’s Special Enforcement Bureau), next court date, and where the inmate was housed in the jail.

The informant next called the records section of the District Attorney’s Office. He said he was a Deputy District Attorney and asked for information on the inmate’s case. He was given the name of the Deputy District Attorney prosecuting the case, the Deputy District Attorney’s telephone number, and the name of a witness.

A few calls later, the informant called Sheriff’s Homicide and said he was “Sergeant Stevens” at the Central Jail. He was able to obtain the name of the murder victim, and the victim’s age and race.

The informant then called the Deputy District Attorney who was handling the case, initially identifying himself as “Sergeant Williams” with the Los Angeles Police Department. The Deputy District Attorney responded to the informant’s questions by stating, “I’ll tell you anything you want to know about the case,” and proceeded to provide details about what the victim was wearing, where his body was found, the fact that the coroner’s report said that death resulted from suffocation and/or drugs, that the victim’s blood contained a fatally high amount of methamphetamine, that the defendant confessed to stuffing the victim in a trunk, and the prosecutor’s personal opinion of the likely defense in the case. Near the end of the conversation, the informant gave his name as “Sergeant Johnson.”

At this point, the informant said he had obtained enough details about the case to enable him to fabricate a jail house confession which would be accepted by detectives. He then proceeded to demonstrate how he could arrange for contact between himself and the inmate to support the fabricated confession. The informant called a department of the Superior Court in Van Nuys, identifying himself as Deputy District Attorney “Michaels” with the Organized Crime Unit downtown. In response to the informant’s request, the court bailiff ordered the informant and the inmate to be transported to Van Nuys the following day. Id. at 69-71.
________________

White indicated that a fabricated confession based on this information would be sufficient to get him a “hell of a deal” with prosecutors.

And indeed, it would be sufficient to get a “hell of a deal,” and prosecutors would suck it up. Cops would suck it up. Judges and juries would suck it up. And it’s on “hell of a” scam.  The problem is that while a guy in jail might have no qualms whatsoever about burning another person to save his own sorry butt, prosecutors would neither think like this nor have any reason under the sun to scrutinize it any more closely than served their purpose of using it to get the bad guy.

Before some “brilliant” reader feels compelled to opine how the particulars of this scheme couldn’t possibly work in his jurisdiction, let me explain that this completely misses the point. Those inmates inclined to be jailhouse snitches become incredibly innovative in their ability to find ways to manipulate the system and its players.

There’s nothing like prison to bring out the tenacious ability to find ways to do things that shouldn’t be possible.  Just as prisoners are willing to secrete things in their anus that would be too repulsive for most of us to even consider, they find ways to make it happen.  So too do prisoners who want out so badly that they’ll sell another person to the executioner for their own freedom.

And now everyone can see how one prisoner pulled it off.  If you think others aren’t similarly capable, you’re deluding yourself.

H/T Mike Neal, Oregon Law Center

As Manhattan grew too expensive for ordinary humans, the lesser ones were forced over bridges and through tunnels toward places where they wouldn’t take up space to which their betters were entitled.  The worst of these unsavory characters went to New Jersey, and would up in a place called “Hoboken.”  Hoboken is a native American word, created by the Lenni Lenape tribe, meaning “place for outcasts from Manhattan.”

Vesselin Dittrich may not have realized that he stood on a rung so low on the ladder of Importance as to open himself to question.  He likely thought himself entitled to the privileges and immunities of which Americans are so proud.  In Hoboken.

Every once in a while, a seed of an idea appears at Brian Tannebaum’s  My Law License blog. I know, I’m shocked too, but it happens.  His Battle de Jour is over a comment, said to “a friend of his” (itself a jarring notion):

So the lawyer tells me that some lawyer asked whether my friend really believed that I helped them out of unselfish motives. There of course had to be some motive, it couldn’t be just…that…I like this lawyer and was there for the advice.

And that motive is?

To become a judge.

Of course.

“I had no choice, I just couldn’t get out of bed.”

“I had no choice, it was the best program I could get into.”

“I had no choice, he told me to do it…”

Really?

It’s probably more accurate to say, “the short-term benefit/satisfaction/risk avoidance was a lot higher than anything else, so I chose to do what I did.”

Remarkable work often comes from making choices when everyone else feels as though there is no choice. Difficult choices involve painful sacrifices, advance planning or just plain guts.

I make a choice, every single morning, when I wake up, make a pot of coffee, then sit down in front of a computer and start to read, then type.  My choice isn’t going to win me any robes.  It’s not going to get me a chair at Harvard. It isn’t going to earn me a friggin’ dime.  My choice is to exist.

I’m going to die one of these days. Maybe sooner rather than later, and likely sooner than most of my readers. I’ll be damned if I die without having anything to show I was here.  I lack the skills to build the Taj Mahal, or write a symphony, or create a tourbillon.  But I can type words onto a computer screen fast enough to put some ideas on virtual paper that serve to demonstrate, at least for a day, that I was here.

Most of my enemies don’t exist.  They can complain about me all they want, disagree with me and be angry with me until spittle flies out of their mouths.  They can impute evil motives to me and this blawg to anybody who will listen.  I don’t care.

No, this isn’t about Jerry Sandusky, but Utah lawprof cum former federal judge Paul Cassell.  It started with a post by  Doug Berman to a  new article on SSRN.  While the link was as neutral as could be, lacking even the most underwhelming adjective of “interesting,” the name of the article began with “Avenging Amy,” an  inflammatory beginning if ever there was one.

The article was written by Steven Joffee, an unfamiliar name. Even more curious, there was nothing on SSRN to suggest the writer’s scholarly affiliation, though this article was to be published in the Whittier Journal of Child and Family Advocacy, whatever that is.  The abstract of the article included verbiage that couldn’t be ignored:

Although Congress intended for Section 2259 to apply in any case in which a victim has “suffered harm” as a result of a defendant’s conduct, its inclusion of the term “proximate result” in the Act’s catchall loss provision has created much confusion amongst federal courts. As a result of this confusion, several courts have simply ignored the mandatory language of Section 2259 and have flatly refused to award victims of child pornography with restitution, ultimately rendering the Act mere rhetoric.

To resolve this debate, and to end the further victimization of child pornography victims by courts refusing to grant restitution, the United States Supreme Court should grant certiorari to resolve this issue, or alternatively, Congress should amend the Act to make the requisite level of causation more clear. Only by resolving this issue will Congress’ intent to provide all victims harmed by child pornography with full compensation be achieved, ensuring that those who harm the “Amys” of this world will be held fully responsible for their abhorrent conduct. (Emphasis added.)

Former criminal defense lawyer cum television star turned prosecutor, Ken Lammers, presents an homage to truckers in a video showing how a few semis can really screw up a decent low speed escape from the clutches of The Man. 

The only good news for the driver of the fleeing vehicle is that the trucker’s deliberate and reckless use of his tractor trailer to block his escape route seems likely to give rise to a pretty decent lawsuit, which he can spend at his leisure when his sentence is over.

In the meantime, it seems to me only fair to counter Lammers’ Ode to Truckers who have forsaken their “watch out for smokey” heritage for their junior airmen wings with a video of a different sort.



There may not always be two sides to every story, but there’s always a song to bring comfort to those on the wrong side of a crash with a semi.

Every wonder what makes the fad of “drug courts” really special? Via the New York Law Journal, the Westchester County Town of Greenburgh offers a glimpse, prompting the state Office of Court Administration to remove all cases before the court.

The shift in cases occurred after Peter H. Tilem of Tilem & Campbell in White Plains complained of the town drug court’s practices in which the judges apparently presided over the same matters simultaneously and in which a “team” was allowed to vote on such issues as whether an attorney admitted in New York State could practice in the Greenburgh drug court, and whether a defendant should be released on bail.

Bet you didn’t know about the “team” approach to criminal law.  Bet you didn’t know that the “team” had to give you the old “okey-dokey” before you could represent a defendant before the team. And bet there’s more you didn’t know. 

Brooke Ahern pleaded to a petit larceny and was diverted to drug court. She warranted, but returned on her own, only to be remanded without a hearing. So she got a lawyer.  Smart move in most courts. In Greenburgh, however, representation by counsel isn’t necessarily appreciated.

Several days later, Ms. Ahern appeared with Mr. Tilem in Greenburgh drug court, where Justices Forster and Friedman were presiding simultaneously, with one on the bench and the other in the jury box, according to court records.

Mr. Tilem said in an affirmation, supported by a verified petition from his client, that he was told by Justice Forster that he was not admitted to practice in the Greenburgh drug court and the matter was adjourned for nearly a month while Ms. Ahern was in jail. Ultimately, a “team” that included the judges and two attorneys, Bernard Bacharach, the primary drug court attorney, and Alan J. Tomaselli, the alternate drug court attorney, voted to permit Mr. Tilem to represent his client, according to court records.

The records show that without a hearing, the team, along with Mr. Tilem, deadlocked 3-3 on whether Ms. Ahern should be immediately sentenced to a year in jail. Mr. Tilem said he voted against putting his client in jail, resulting in a 3-3 tie.

However, he said he was then asked to leave the room, and when he returned learned that his client was to be sentenced immediately.

“Presumably, with me out of the courtroom the vote was 3-2,” Mr. Tilem said in his affirmation.

My apologies to John Caher for such a lengthy quote, but the background (combined with his good writing) calls for the details.  Does any of this strike any lawyer as even remotely familiar?  Isn’t this how courts typically function, send the lawyer out of the room (assuming the team has deigned to allow him in at all) and then vote to send the defendant to jail?

On what planet does this happen?  Is everybody in this court on drugs?

The only conceivable rationale comes from the nature of drug courts, an invention intended to help criminal defendants overcome drug dependency and deal with their criminal conduct as more (not entirely, but more) as a medical problem than a criminal one.  Standing alone, this sounds just hunky-dory.

But it doesn’t stand alone.  It takes a village, or in this case a team, to really screw things up and undermine every constitutional mandate there is.  And this team did exactly that. 

The rationale for the Greenburgh drug court, which isn’t a recognized drug court under the state system but operating under a federal grant, which apparently meant to the judges of the court that they were free to do whatever popped into their mind.

“We as a group vote on everything and we have our procedures and we follow them,” she said. “Our drug court is not part of OCA and we have our own grant and our own rules and there is no court above who supervises us. Nothing happened in this case that was different, other than private counsel came in and made a lot of noise.”

Damn those noisy lawyers, making a big stink about the fact that the court was run like a private fiefdom, where fealty was due a couple of judges in kangaroo suits.  After all, if the court gets federal money, doesn’t that mean they get to create their own rules?  It’s not like the feds, passing out grants, expects anything of them.

That the Office of Court Administration, upon learning that the Greenburgh drug court defied essentially every precept of constitutional procedure familiar to a first year law student, is to their credit.  It’s not so great that it they had no clue that a court functioning in the State of New York utterly ignored law and procedure until “noisy” Peter Tilem spilled the beans.  After all, they were sending recalcitrant defendants to jail, likely prison as well, and yet nobody had the slightest idea how they managed to arrive at these sentences?

Advocates of drug courts will note that not all courts function like this, that most are both highly professional and deeply caring about the welfare of diverted defendants, cleaning them up and returning them to society as law-abiding citizens who have overcome a drug habit. 

Nice as this sounds, and even if its true, it remains a significant problem that defendants whose conduct is guided by drug dependency are almost invariably required to forego basic rights in exchange for the concession of rehabilitation rather than incarceration.  Why?  Why must a defendant give up his constitutional rights in the process before being offered rehab in the end.  If the concern, as it;s claimed to be, of drug courts is to stop the cycle of crime and dependency by treating addicted defendants, to what good end is there in putting them in jail rather than rehab because they asserted their constitutional rights in the process?

But it’s got to be a bargain if you want to get the benefit. To be given rehabilitation rather than incarceration, even if the former is obviously more appropriate than the latter, defendants have to pay with their constitutional rights.  In Greenburgh, the price was way too high.  In other drug courts, the bargain may not be as bad, but it’s still a trade-off of constitutional rights for drug treatment.