One of my  earliest posts at SJ was about the horrific case of Martin Heidgen, who plowed his pickup into wedding party limo and killed two people, including the 7-year-old flower girl, Katie Flynn.  Heidgen, then 25, was totally drunk.  

Heidgen was the first in a series of cases prosecuting drunk driving deaths as murder.

But the law does not vary by the horrific nature of the outcome, as much as we sometimes wish it would.  The law must be dispassionate, as we know that the next case will not have such terrible consequences, but now that the dam has been broken, can be prosecuted as a murder.  And murder, any way you turn it, is a different crime from manslaughter or vehicular homicide.  It has an intent element, whether under the  intentional murder subdivision, or the depraved indifference subdivision, as was used here.  And drunk drivers, no matter how bad the result, do not have the intent necessary to commit murder.  No matter how bad the result.

By decision issued September 13, the Appellate Division, Second Department,  affirmed the conviction for two counts of murder.  This decision,  remarkably long in coming because of inexplicable delay in the submission of appellant’s brief, come after other decisions that reflected this court’s rejection of the underlying theory:

Much has happened since Heidgen’s conviction.  The case of Alberto Valencia was decided by the Appellate Division, Second Department, the same court that will hear Heidgen’s appeal.  There, the court rejected the “depraved indifference” theory of assault upon which the conviction rested, the same theory (though applied to second degree murder) that was used against Heidgen.  Valencia was sentenced on February 23, 2007, five days before Heidgen. 

Yet the affirmance here seems to be a carve out, where the majority relied upon highly specific facts to reach its result:

The majority concludes that when viewing the evidence in the light most favorable to the prosecution, a reasonable jury could conclude that the defendant was aware that he was driving “the wrong way and deliberately chose to continue to proceed in the northbound direction, against traffic, without regard for the grave danger to himself and others traveling on the parkway that night,” and that given “the defendant’s statement to the police that he was in a self-destructive’ mode, it was reasonable for the jury to find that he possessed the requisite mens rea at the time that the impact with the limousine occurred.”

Specific to this case, the majority relied on the fact that three cars passed Heidgen, who was traveling he wrong way down the Meadowbrook Parkway, and honked to alert him.  He kept going.  His statement to police, that he was in a “self-destructive mode,” was used to suggest that he was conscious of what he was doing, but that he was suicidal. 

To the majority’s credit, they have made great efforts to make their affirmance so fact-specific as to avoid screwing up a body of law in order to make sure Heidgen remains convicted of murder.  As the lone dissenter, Jeffrey Cohen, asserts, however, it’s not, and shouldn’t be, the law.

I disagree, and conclude that no rational or reasonable juror could infer that the defendant was suicidal, and acted with depraved indifference to an appreciated grave risk, merely because he stated that he was in a “self-destructive” mode. Thus, the evidence was legally insufficient to support the essential elements of murder in the second degree or assault in the first degree. It was not established beyond a reasonable doubt that the defendant was aware of the danger of his conduct, aware of the grave and high probability of injury and death his conduct portended, and wholly indifferent to any such probability.

Justice Cohen picks apart the facts upon which the majority relies, turning them from rationale to rationalization.  This is a fascinating dissection, as it’s the sort of detailed parsing of facts that one rarely sees in an appellate decision, where reality is whatever the opinion says it is, regardless of what actual evidence was presented and how that evidence connects (or not) with the rest of the dots. 

To the extent this decision is outcome oriented, bad facts compelling a bad outcome, it doesn’t appear to do anywhere near as much harm to the law as it could have, and for that we should be grateful.  But as the dissent makes clear, it’s still about outcome. Martin Heidgen was convicted of murder for the drunk driving deaths a was going to stay that way.

I had a nice chat the other day with a young lawyer who has a very popular legal website.  His site is a business, intended for profit and designed to maximize the number of eyeballs it draws.  He was disgusted, well, concerned (actually, I was disgusted, so I’m projecting my own feelings about his website onto him. He didn’t hate his website anywhere near as much as I did), that in the zeal to create the website and draw the eyeballs, he might have lost a critical ingredient.  Purpose.

It gave rise to the concerns raised by Alissa Walker at Good Technology :

One of the reasons I wanted to become a writer is that I was fascinated by a journalist’s ability to shape public opinion. Yet, the more information I have about who actually reads my words, the further removed I feel from the field of journalism. Sometimes my writerly self takes a back seat to my other personality, the one that’s obsessed with getting strangers to like me for something I wrote. As a slave to data, my success as a writer now hinges on how often I get Stumbled Upon, Voted Up, Promoted, Ffffound, Dugg, RTed, and Liked.

One might argue that I’m more machine than journalist. I actually enjoy the rush of attracting traffic. But does it make me any less of a creative person?

She writes about her learning the lessons of the internet, and how she became consumed by what they had to offer.

I remember the first time I was confronted with this new reality. I had written a blog post with the most perfect, pun-filled headline. But when I saw it, edited and published, I did not recognize it as my own. My headline had been swapped with a gimmick that anyone who writes for the web (and anyone who reads it) will instantly recognize: The dreaded formula of “The Top 5 Things That Will Prove Something Important.” My post had been turned into a list. My editor—a hardened blogging authority at the age of 26—shrugged. It had been proven somewhere (where?) that people love lists.

At first I was skeptical, borderline insulted. But when I saw how a slight tweak to my text would make my page views skyrocket, I became a convert. Now, instead of organizing my thoughts into pithy paragraphs for readers, I engineer my words so they’re algorithmically attractive. I rewrite my headlines to make them more enticing to Google. I tag them with dozens of relevant phrases to boost my authority on specific topics. I add search terms to my text to further optimize my SEO ranking. I admit that I don’t totally understand what that last sentence even means.

What’s left unmentioned is her concern with providing substantive information, well-written prose and thought-provoking commentary.  Apparently, no one told her that a  simple picture of a cute kitten was enough to draw the love of millions, cheap though it may be.

People love lists.  Social media gurus regurgitate the same list of Top 10 things constantly, to the wild applause of the crowds.  The comments that follow, extolling their utter fascination with the writer’s sheer brilliance, will warm even the coldest heart.

A while back, the emptiness of much offered by the blawgosphere began to gnaw at me.  I knew people cared about things, but you couldn’t tell by the insipid crap they wrote.  I wrote a post imploring people to take a stand, write something meaningful, put their ass on the line. 

If you ask most people who blog, they tell you they want to be relevant and meaningful.  They just don’t want to risk losing the love of readers.  After all, what good is being meaningful if no one reads what you write, and so they put their efforts into trying to collect eyeballs, as if a day will come when they will have enough, sufficiently own them that they can then, finally, offer a real contribution to thought.  They’re still waiting for that day to come, but it never does.

So the young lawyer with whom I chatted asked me what I thought he could do to improve the quality of the content on his website.  His actual words were, “what can I do to not suck?”  I offered him a few suggestions, including that he make certain that the articles/posts that appeared not make anyone stupider for having read them.  This was a major problem for him.

But more importantly, he had things to say, things he had learned between his third year of practice, when he knew everything there was to know about the law, and his eighth year, when he recognized how much he still had to learn.  He was aching to get these things out, to tell others what he had learned.  But he was afraid that he would offend his readers by telling them they were ugly and dressed funny, and they would run away from him and never come back.  He would lose their eyeballs.

Walker too had to come to grips with life on the interwebz, where any ploy that gets more eyeballs trumps quality and substance, even to the point of titling a post “what time is the Super Bowl” because that’s the predominant inquiry on Google at the moment.

Take it as the exception, but in fact this is not too different from how many sites with a veneer of journalistic integrity are generating stories right now. The sorts of stories you’ve no doubt clicked on. Instead of stumbling across a story idea while walking down the street, or meeting a stranger, or pondering an issue in the shower, a writer—maybe even me—skims Twitter’s trending topics or the most-searched phrases on Google Trends and then writes a piece. In most cases, a piece of crap.

So write a piece of crap and gather as many eyeballs as possible. Then what?  It won’t matter.

Today’s required reading is an op-ed in the Wall Street Journal by Orin Kerr :

Imagine that President Obama could order the arrest of anyone who broke a promise on the Internet. So you could be jailed for lying about your age or weight on an Internet dating site. Or you could be sent to federal prison if your boss told you to work but you used the company’s computer to check sports scores online. Imagine that Eric Holder’s Justice Department urged Congress to raise penalties for violations, making them felonies allowing three years in jail for each broken promise. Fanciful, right?

Think again. Congress is now poised to grant the Obama administration’s wishes in the name of “cybersecurity.”

The thrust of the changes is to make the misdeamor of exceeding authorized access a felony, punishable by three years imprisonment. 

The problem is that a lot of routine computer use can exceed “authorized access.” Courts are still struggling to interpret this language. But the Justice Department believes that it applies incredibly broadly to include “terms of use” violations and breaches of workplace computer-use policies.

Breaching an agreement or ignoring your boss might be bad. But should it be a federal crime just because it involves a computer?

It’s unlikely that the DOJ will be trolling online dating sites to prosecute guys who add a couple of inches to height or gals who subtract a few pounds of weight, but it certainly opens the door to having a means to prosecute essentially everyone who has ever used the internet.  In the op-ed, Orin gives past examples of abusive use of the CFAA, but by expanding its seriousness while criminalizing routine computer conduct, particularly when the basis for exceeding authorized access is privately conceived terms of service which can be pretty much anything the website owner chooses (by the way, use of SJ is prohibited unless you are wearing blue jeans and standing on your left leg; you’ve been warned).

And it’s not just the government, but provides a private cause of action as well:

The law even goes beyond criminal law. It allows civil suits filed by private parties. As a result, federal courts have been flooded with silly disputes. In one recent case, an employer sued a former employee for excessive Internet usage from work. The alleged offense: visiting Facebook and sending personal emails. In another case, a company posted “terms of use” on its website declaring that no competitors could visit—and then promptly sued a competitor that did.

And since the government has yet to gain much by way of computer savvy, President Obama’s smartphone notwithstanding, unauthorized use isn’t limited to your 4G connection.

Remarkably, the law doesn’t even require devices to be connected to the Internet. Since 2008, it applies to pretty much everything with a microchip. So if you’re visiting a friend and you use his coffeemaker without permission, watch out: You may have committed a federal crime.

Harvey Silverglate’s  Three Felonies a Day seems downright benign in light of the expansion of the CFAA .  And if you’re reading this, chances are pretty good that your government could, if it so chooses, prosecute you for a felony. 

This is an important op-ed, and not only worth reading, but worth spreading so that everyone is aware of what the government has in mind, and how it will create felons of all of us.

Update:  Via Kash Hill at Forbes, it appears that Senators Al Franken and Chuck Grassley have proposed  an amendment that will remove certain of the worst elements of the changes from the CFAA.

…that felony-level unauthorized access not “include access in violation of a contractual obligation or agreement, such as an acceptable use policy or terms of service agreement, with an Internet service provider, Internet website, or non-government employer, if such violation constitutes the sole basis for determining that access to a protected computer is unauthorized.” The bill will now move forward to be considered by the Senate.

At least the most common sorts of internet activity won’t be sufficient to get your a room at Club Fed, though it leaves much untouched and qualifies what it does touch as being the “sole basis,” a highly dubious distinction. 

Still, it’s notable that one strongly worded editorial by Orin (and  perhaps some of his plagiarists?) affected the course of this law.

Just between us, doesn’t everybody know that it’s just common sense that blacks and Hispanics are more likely to commit crimes than white?  It’s just common sense.*

You’re in good company, you know. Psychologist Walter Quijano agrees with you.

Seven people in Texas were sent to death row in part because psychologist Walter Quijano told their juries that as blacks or Hispanics they were more likely to commit future violent crimes than if they had been white. Quijano shouldn’t have done that. 

What he said is factually wrong; there is no basis for the conclusion that blacks and Hispanics are more violent than whites.    What he said is morally offensive; it is racism in action, regardless of whether Quijano thinks so.  What he said, in the context of a trial, is legally improper; considerations of race have no place in the criminal justice system.  What he said, in the context of a trial, is unconstitutional; it made the sentences, at least in part, dependent on race in violation of the Equal Protection Clause of the Fourteenth Amendment.

Then Texas Attorney General John Cornyn (he’s now a U.S. Senator) recognized that what Quijano did was inexcusable and its effect on the sentences unacceptable.

One of the prosecutors who tried Buck’s case and put him on death row, Linda Geffin, wrote a letter asking the Parole Board to grant him relief.  The surviving victim of the attacks that put him on the row, Phyllis Taylor, wants him to get clemency.

The way it works in Texas, the Governor can grant clemency only if his hand picked parole board recommends it.

This afternoon, the Parole Board said no. 

Senator of the good people of Connecticut, Joe Lieberman,  explains the root of the problem:

“It’s an annoyance to people,” Lieberman said of the security measures.

Children 12 years old and younger soon will no longer be required to remove their shoes at airport security checkpoints, Homeland Security Secretary Janet Napolitano told Congress on Tuesday. The policy also includes other ways to screen young children without resorting to a pat-down that involves touching private areas on the body.

Napolitano said there may be some exceptions to keep airport security unpredictable. Terrorists have plotted to use children as suicide bombers, and some children still may be required to remove their shoes to keep security random.

Does this take the air out of your bubble of annoyance?  Some will argue that this is a step in the right direction, and reflects our government sensitivity to the will of the American flying public.  But what of their fear that of the tens of thousands of planes that fly safely and without incident, their will be the first in ten years to be flown into a building?  Are they not giving the terrorists a free shot by letting the occasional infant wear shoes?

Fear not, scared masses.  Your government would not forget you.  What’s not being said is that the TSA is moving toward a risk-based approach, according to administrator John Pistole.  Sounds great.  Cries for “common sense” demand that we leave our beautiful babies alone, stop molesting them, stop making them cry in fear and loathing.  They aren’t terrorists. It’s nuts.

So who are terrorists?  They have a list at the TSA the includes all the people they think might be terrorists, or otherwise just don’t like.  But if they limited themselves to the list, none of these shenanigans would be needed, and you and I would be allowed to wear shoes in airports as well.

They could profile terrorists, but that’s just code for picking out people with swarthy mediterranean good looks and subjecting them to the searches that blonds would avoid.  And it would leave us exposed to “home-grown” terrorists, who look like just like us.  How in the world could we ever stop them if we can’t tell from their darkened complexion that they are dangerous?

Certainly, it’s in the TSA’s interest to back off the children.  Few acts of government have generated as much outrage as young children having their “private parts” touched by agents.  Or as Joe Lieberman says, annoyed. 

The trick for the TSA is to modify procedures in such a way as to be embraced again by the American public as their protector and friend, to whom people will willingly submit without fear, question or annoyance.  They know that these children, whose videos enrage normal people, aren’t going to blow up a plane.  They just can’t figure out how to make up a viable story to justify their continued performance of security theater if they start admitting that much of it, if not all of it, is worthless.

Janet Napolitano is a sharp cookie, however, and knows how to toss in that little zinger that seems to make perfect sense.

[T]there may be some exceptions to keep airport security unpredictable.

Exceptions?  You won’t know if it’s the exception or the rule, because you only see a teeny-tiny bit of what happens on the security line.  Does this mean one in ten will be groped? One in a hundred?  Or one whenever somebody feels like it?  She can’t say since that would undermine the whole point of unpredictability.  Smart.

Does this do it for you?  Are you now satisfied that the TSA has found the tipping point where you will be happily obedient for your own protection, if not the protection of others, knowing that children can wear shoes except when they can’t? 

Or will that happy place come when you see the agents scoping and groping only the swarthy, letting real American’s walk through unmolested and whisked away to their waiting plane?  After all, it’s just common sense. 

While there is no shortage of discussion about the pleasures of being a supporting actor in the TSA’s airport security theatre, it pales in comparison to the lawlessness of airplanes, as Shoshona Hebshi found out.  Via Ken at Popehat :

. . . a perfectly innocent woman being hauled off a flight, handcuffed, jailed, strip-searched, and grilled for hours — because some fucking ninny on the plane thought she and the two dark-skinned people sitting next to her were “suspicious”, and because “better safe than sorry” has become a higher value to law enforcement than probable cause or reasonable suspicion or due process or common freaking sense, and because we’re too cowed as a people to say anything about it.

My last tweet:

Majorly armed cops coming aboard

Someone shouted for us to place our hands on the seats in front of us, heads down. The cops ran down the aisle, stopped at my row and yelled at the three of us to get up. “Can I bring my phone?” I asked, of course. What a cliffhanger for my Twitter followers! No, one of the cops said, grabbing my arm a little harder than I would have liked. He slapped metal cuffs on my wrists and pushed me off the plane. The three of us, two Indian men living in the Detroit metro area, and me, a half-Arab, half-Jewish housewife living in suburban Ohio, were being detained.

The cops brought us to a parked squad car next to the plane, had us spread  our legs and arms. Mine asked me if I was wearing any explosives. “No,” I said, holding my tongue to not let out a snarky response. I wasn’t sure what I could and could not say, and all that came out was “What’s going on?”

They asked if I knew the two men sitting next to me, and if I noticed them getting up during the flight or doing anything I would consider suspicious.

I told them no, and couldn’t remember how many times the men had gotten up, though I was sure they had both gone to the bathroom in succession at some point during the flight.

Again, I asked what was going on, and the man said judging from their line of questioning that I could probably guess, but that someone on the plane had reported that the three of us in row 12 were conducting suspicious activity.

What is the likelihood that two Indian men who didn’t know each other and a dark-skinned woman of Arab/Jewish heritage would be on the same flight from Denver to Detroit? Was that suspicion enough?

FBI Detroit spokeswoman Sandra Berchtold said ultimately authorities determined there was no real threat.

“Due to the anniversary of Sept. 11, all precautions were taken, and any slight inconsistency was taken seriously,” Berchtold said. “The public would rather us err on the side of caution than not.”

Maybe.  Or maybe the public would rather you not seize, strip and interrogate people because they went to the bathroom in a fashion that troubled someone from Des Moines.  Or maybe they expect the forces of law enforcement to demonstrate some modicum of intelligence, and not leap at every nutjob’s suspicions.

Or maybe it’s just because the three passengers in row 12 had darker skin than others.

And so Shoshona Hebshi, a believer in law and order and public safety, was sacrificed on the altar of better safe than sorry because someone on a plane thought it odd. 

The instructions were clear: blink three times for “yes,” two times for “no.”  Six times for “maybe.”  Nine times for “I’ve got something in my eye.”  Once for “am I gonna die?”  Or maybe not. 

When the only means of communication is a blink, however, that’s the best you can do.  From Cincinnati.com :

Ricardo Woods could spend the rest of his life behind bars because of a blink.

In a bizarre case, Woods is charged with fatally shooting David Chandler, with authorities relying on a priest and blinking to try to solve the killing.

Woods was charged with murder after a wounded Chandler identified Woods as the shooter – by blinking his eyes to answer yes-and-no questions from police who also brought in a priest to administer last rites, Woods’ attorney alleges, to skirt the law.

The police had two problems to overcome.  There was David Chandler, paralyzed as the result of a shooting and incapable of speaking.  It was their belief that Woods was the shooter, but they needed an identification and Chandler was in no position to give up a name.

The other problem was that Chandler was alive, even though paralyzed, but there was no assurance that he would survive long enough to testify.  In the hospital, it was questionable whether he believed himself to have one foot in the grave, in extremis, such that his communication would fall under the hearsay exception of a dying declaration. 

To create the proper atmosphere, the cops brought in a priest to give Chandler last rites.  After all, who cares about saving his life and comforting the victim when there’s evidence to be gathered and no way to do so without making sure he knew he was about to meet his maker.  And once he was sufficiently fearful of the grim reaper, get their ID.

As Chandler was in the hospital, police tried to get him to tell them who shot him. But because he was paralyzed in the shooting, he could only communicate by blinking.

Police videotaped the in-hospital questioning and then charged Woods. But Woods’ attorney questions police tactics and the identification by Chandler of Woods.

“Mr. Chandler was hooked up to a ventilating machine,” Kory Jackson, Woods’ attorney, said. “Because of the way he is responding, he did not properly identify” his killer.

Curiously, while the cops recorded the identification, where they had Chandler observe a single photo and asked him to assert, by the blink method, whether that was his shooter, they neglected to show the image on the photo to the camera, so that it’s impossible to tell from the recording that the photo was that of Woods.

Even so, it appears that Chandler’s responses were a bit inconsistent.

Police, Jackson said, told Chandler to blink three times for yes, twice for no. “In lots of responses, he isn’t answering correctly. He either doesn’t blink or blinks too many times,” Jackson said.

Guys who were just shot in the head will do that.

But the blinks still could be used in court.

The circumstances of the identification lend themselves to a myriad of problems, questioning whether the blinds were arbitrary, or related to the questions at all.  There is no way to determine whether Chandler, who had been shot in the head and neck, had the capacity to think, to understand, to respond.  Perhaps so, but it’s also quite possible that he wasn’t in the right frame of mind to identify much of anybody after the shooting.  And yet, this was all the police had to work with, and work it they did.

Now for the obligatory lawprof commentary part of the report:

If prosecutors can establish that Chandler properly answered questions, that can be used at trial, said University of Cincinnati law professor Mark Godsey.

If there were “clear and unambiguous answers being given by the witness and everyone was on the same page about what they meant, then it can be considered valid,” Godsey said.

“To comply with the … law, it has to be a series of photos shown one at a time,” Godsey noted.

Well, no, not if the two men were knew each other beforehand, making the identification confirmatory.  But what would the story be if it didn’t include a lawprof stating something so deep and astute.

This strange scenario ultimately comes down to whether the judge is going water down every concept of reliability so that the prosecution isn’t left without an identification, and hence without a case.  Whether blinks can ever suffice as “clear and unambiguous” answers is a decent question.  It’s likely that under normal circumstances, one can properly test the blinks through a series of questions to remove the potential of randomness from the blinks and confirm that a “yes” or “no” means what it purports to mean.

But if the video shows what Jackson says, that Chandler was blinking all over the place, then it would seem impossible to be assured that his “yes” blink meant yes, even assuming the photo was that of Woods and that the judge will bite on the priest gambit.  Missing from the discussion seems to be any assessment of whether Chandler had the mental capacity following the bullet entering his head to think much about anything, which strikes me as a pretty decent question.

The strongest argument on behalf of the prosecution, and the one that will never be spoken aloud, is that someone will get away with murder if the court doesn’t allow them to introduce evidence of identification.  And as long as a judge isn’t going to be a slave to reliability or the law, this argument may well be a winner.  After all, nobody likes to see a murder without a conviction.

Update:  And the court says :

Hamilton County Common Pleas Judge Beth Myers said that Chandler’s “pronounced, exaggerated” eye movements were reliabe evidence.

“I find from the totality on the circumstances based on Ohio law and the facts as I found them that the identification is reliable and there is not a substantial likelihood of misidentification,” the judge ruled.

Imagine what the cross-examination of this testimony will produce.  Oh wait, the victim is dead so there won’t be any cross.  Well then, at least it’s reliable, because otherwise an innocent person could be convicted.

As Circuits split on the subject in decisions that reflects as much about their comprehension of modern technology as their concern for the Fourth Amendment, there was fear and trepedation at the idea of our beloved Supreme Court eventually making decision.  That day is soon to come, as the Court considers United States v. Jones this coming November.

In his  New York Times Sidebar column, Adam Liptak notes how different courts have treated GPS tracking:

In April, Judge Diane P. Wood of the federal appeals court in Chicago wrote that surveillance using global positioning system devices would “make the system that George Orwell depicted in his famous novel, ‘1984,’ seem clumsy.” In a similar case last year, Chief Judge Alex Kozinski of the federal appeals court in San Francisco wrote that “1984 may have come a bit later than predicted, but it’s here at last.”

Last month, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn turned down a government request for 113 days of location data from cellphone towers, citing “Orwellian intrusion” and saying the courts must “begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.”

Who doesn’t love analogies to Orwell’s 1984?  Yet this doesn’t really help much in addressing the fact that technology has made things possible that no founding father could ever dream of, and no bootleg-hating justice considered as he wittled away our rights to make exceptions.  But it’s all come home to roost, on virtual steroids.

The Jones case (shockingly) arises from a government screw-up.

The case . . . arose from the investigation of the owner of a Washington nightclub, Antoine Jones, who was suspected of being part of a cocaine-selling operation. Apparently out of caution, given the unsettled state of the law, prosecutors obtained a warrant allowing the police to place a tracking device on Mr. Jones’s Jeep Grand Cherokee. The warrant required them to do so within 10 days and within the District of Columbia. The police did not install the device until 11 days later, and they did it in Maryland.

The problem is that GPS tracking, unlike anything man was capable of before, capable of by his own observation, nails every movement bar none to so specific a degree as to know details with such intimacy that a spouse would be jealous, and can continue as long as desired.  The GPS never gets tired, needs a day off or has to go to the bathroom.

But this isn’t just about GPS, but a transitional case addressing what a bunch of justices whose understanding of both existing technology and whatever will be invented tomorrow will be tested.  Just as the spectacularly bad decision from 1925 in  Carroll v. United States brought us from the horse and buggy era to the automobile exception, and unintentionally paved the road for an ongoing and disconnected stream of exceptions to the Fourth Amendment that have reduced it to meaninglessness today, the Jones case has the potential to create a framework for technology as yet undreamed of that will control the extent of intrusion in our lives going forward.

In other words, the Supremes are staring 1984 in the face and will have the opportunity to draw a line and say “no,” that will not be our future in light of the amazing potential of technology.  Or pull a Carroll, letting the utility of a particular piece of tech and a desired immediate outcome produce a rationale that will be extended, step by step, iPhone by iPad, until privacy has been completely and irrevocably eviscerated.

Ironically, the government’s argument against the need for a warrant for GPS surveillance relies on primitive technology used in United States v. Knotts, decided 30 years ago,

In the Jones case, the government argued in a brief to the Supreme Court that the Knotts case disapproved of only “widespread searches or seizures that are conducted without individualized suspicion.”

The brief added: “Law enforcement has not abused GPS technology. No evidence exists of widespread, suspicionless GPS monitoring.” On the other hand, the brief said, requiring a warrant to attach a GPS device to a suspect’s car “would seriously impede the government’s ability to investigate leads and tips on drug trafficking, terrorism and other crimes.”

“Trust us, we would never abuse our power,” does not seem like a principled approach for a court, but if the government can get this past the Supremes (and everybody decides to forget about the widepread illegal wiretapping over the past few years where the government proved conclusively that it can’t be trusted), the use of technology in the gentle hands of our benign and loving government, much like Big Brother, will be unstoppable.  The “trust us” argument has no limits.

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

A decade ago, the Supreme Court ruled that the police needed a warrant to use thermal imaging technology to measure heat emanating from a home. The sanctity of the home is at the core of what the Fourth Amendment protects, Justice Antonin Scalia explained, and the technology was not in widespread use.

In general, though, Justice Scalia observed, “it would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”

It would be foolish indeed.

Yale grad student Annie Le’s 2009 murder by Raymond Clark was a horrible, senseless tragedy.  It’s understandable that her family would feel compelled to make sense of it, between the angst and gestalt of such a loss, and seek some way that her death, days before she was to be married, wouldn’t seem such an incomprehensible waste.  But that doesn’t mean there is sense to be made of it.

Via Walter Olson at Overlawyered, a complaint has been filed under Title IX against Yale University.  It alleges that Yale was partly to blame :

Yale University failed to control sexual attacks and harassment of women on its campus, leading to the murder of a med student in one of its laboratories, a new lawsuit charges.

“Yale had long taken inadequate steps to ensure the safety and security of women on its campus,” Joseph Tacopina, the Le family attorney, said in a statement to Reuters on Wednesday.

“Sexual attacks on and harassment of women at Yale had been a well-documented and long-standing problem, and there was a widespread belief that Yale repeatedly failed to impose meaningful discipline on offenders,” the lawsuit states.

This raises questions about whether Yale was really a hotbed of sexual attacks and harassment of women, or rather a hotbed of anti-neo-feminism, where women are viewed as so weak and worthless that they were too delicate to handle the normal male/female interaction and otherwise ordinary dealing were transformed into sexual harassment and attacks of sufficient magnitude to complain.  But this question is secondary to the gist of the action.

To connect a murder to an atmosphere of sexual tension regardless of how it’s characterized, is absurd.  This was a sick act of a diseased person, whether Yale had done nothing to sanitize sexual harassment on campus or everything possible, including chastity belts and random neutering.  There are no steps that can be taken that will completely eliminate crime.  There are no steps that can be taken that will cleanse a diseased mind from harming another.

Most curious is that the lawyer for the Le family is my old pal, Joe Tacopina.  Joe’s a good criminal defense lawyer, with a great way before a jury and a charming smile.  Most of his work is on behalf of cops charged with bad things, and he’s had a great deal of success trying cop cases. 

This type of case isn’t what one would expect Joe to be handling, particularly given that Joe’s never demonstrated much interest in feminist causes.  In fact, his last big case was the  acquittal of a couple of cops for having brought a drunk woman home and “hugged her naked.”  This was about as far from a “no means no” case as a lawyer gets.

I’m going to engage in some wild speculation here.  My bet is that the Le family went to some lawyers whose practice was more directed toward Title IX and sexual harassment type work and were turned away, told that while they are very sympathetic to their goals, they could not represent them because there was no non-frivolous cause of action.  Eventually, the Le family found their way to Joe, who saw the potential to make some public waves with this case, and took the case.

Joe isn’t an Ivy League sort of guy.  In fact, Joe is more the kind of guy who would beat the crap out of some Yalie for leaving fingerprints on his Maserati.  Joe may play in the big leagues, but Joe is very much a regular guy.  For some fun, you can read a great article about Joe by our mutual friend, Lisa DePaulo, in GQ.

That said, this case is ludicrous.  There is simply no rational basis for connecting a murder to an alleged atmosphere of sexual, how to even characterize it, benign neglect?  It’s crazy and, well, crazy.

Lawyers are often challenged to take their arguments to the “logical extreme” to determine whether they bear up under scrutiny.  Putting aside the fact that Yale is such a bastion of political correctness that even an  inappropriate fraternity prank gave rise to a federal investigation, the leap from a sexually hostile environment to murder cannot be sustained.  It’s pure post hoc ergo popter hoc. Lawyers can’t ignore logical fallacies just because they want to make a pitch.

Men, boys really, may have urges that women (whom I will not call girls because that would be taken as offensive) may find objectionable.  I’m not talking rape or sexual assault, but normal boy-type urges.  That these have been bootstrapped into sex crimes is a problem all its own.  But as offensive as this conduct may be, it is a world apart from conduct that produces physical harm to another.

An environment that tolerates boys making nasty, stupid, offensive sexual jokes may well encourage other boys to make nasty, stupid, offensive sexual jokes, but it does not drive an otherwise normal person to engage in forcible rape or murder.  Normal people do not do these things.  There is no environment that causes, or even contributes, to normal people committing forcible rape or murder.  Anyone who does so is not normal, and anyone who is of this bent is not driven by the environment, but by a sick and twisted mind.

To connect such things is not merely mistaken, but dangerous.  And there is nobody who should appreciate this more than Joe Tac.  It’s not that a lawyer, indeed a human being, cannot appreciate the horror that Annie Le’s family has been through, and will likely endure for the rest of their lives.  Her murder was a nightmare.  But her murder was the product of one man’s act, one man’s horribly sick mind. 

Whether Yale needs to look under rocks for misogynist is an argument to be had among those who walk its streets and paths, who live in gothic colleges and have to decide whether it’s an atmosphere that suits their sensibilities.  They can work it out amongst themselves. 

It is not, however, a factor in a murder.  Not in whole. Not in part.  To argue that Yale’s failure to adequately maintain a sexually appropriate environment to suit the delicate sensibilities of some leads to murder is ludicrous. It doesn’t lead down an ivy covered path, but down the road to perdition. 

My son came home from school Friday, and I asked him what he learned that day.  It’s the same question I ask every day, and it usually gets a response along the lines of “not to talk to  smegheads like you,” as he walks away eating pretzels dipped in nutella.  Instead, he said he watched a movie about 9/11.

This struck me as strange, as he and his classmates were alive when 9/11 happened.  Many of the kids in his school had an intimate connection, including family members who died.  Yet they were watching a movie of the event.  I asked him if he remembered 9/11, and he told, “not really.”  It had become no more real than World War II or Vietnam, something that students discussed in history class.  Something that happened to someone else, long ago.

I realized that for him, for his friends and classmates, life post 9/11 was his version normal.  He was a member of the 9/11 generation, a generation of young people who grew up in a world where the USA Patriot Act was what the law merely was.  Where posters and television commercials imploring people “if you see something, say something,” was omnipresent.  Where national guardsmen with automatic weapons and camouflage fatigues were supposed to be hanging around Penn Station, and police checked people’s bags at will.

In school, children are inundated with “messages” from MADD, SADD and Dare.  Classes are regularly  interrupted for assemblies about respecting others, sometimes because of sexual tendencies, other times because of feelings hurt by “bullies.”  They are warned about AIDS and more sexually transmitted diseases than I ever knew existed, how sex will kill them.  If a myriad of other horribles didn’t kill them first.

There is a laundry list of subjects that cannot be mentioned, no less discussed or joked about, in schools.  On top of the list is anything that refers, relates, even obliquely mentions, anything that can be remotely construed as violence.  One of the most important things a parents can teach his child is to never mention the words gun, knife, bow and arrow or slingshot in school.  If they even think the word “bomb,” alarms will go off and troopers will immediately seize you.  If heard, the child will be required to go for psychological testing and approval before being allowed back to school, for fear that he’s about to engage in the next Columbine.  They will take no risk whatsoever.

For the most part, their facility with computers is quite amazing, and yet they have no expectation of privacy.  It’s not as if they care, though, as they will do and see and look at anything they please without a second thought, but they simultaneously hold no illusion that someone can’t find out exactly what they are doing if they want to.  The only safe haven is that they don’t think anyone will want to.

They have all been on airplanes, and can’t conceive of flying where they aren’t required to wait on a long line and prove their identity, take off their shoes, put their things in bins to be viewed by a uniform behind an x-ray.  They know that airplane travel means they are subject to search, whether magnetometer, visual or official touching.  They’ve never known a domestic flight where this didn’t happen, or they were served a delicious meal for free on china.

For those of us who spend time thinking about how things have changed since 9/11, since every dead child gets a law named after him, since well-meaning people impose rules they mistakenly believe will cure every potential threat to a safe and perfect world, we haven’t given up the fight to return life to some earlier day.  This generation doesn’t remember that earlier day, when the post-9/11 rules and ways didn’t exist. In a few more years, they will have never known such a time.

In an old man’s mind, I envision a day when school children will be taught that the USA Patriot Act was terrible mistake made in knee-jerk, visceral reaction to terrible circumstances, like the Gulf of Tonkin Resolution.  They will be asked to compare the TSA Scope and Grope with the internment of Japanese during World War II.  Students will be allowed to run as fast as they can on the playground, and some will fall down and skin their knee.  Others will say something hurtful and get popped in the nose for it, and never say it again.

This world is foreign to our children.  It’s a world they’ve either can’t remember or have never known.  They will never balk at having to remove their shoes on a line at the airport, or having to hold their tongue lest a word come out that will get them expelled from school and labeled a sex offender. 

See their world through the eyes of our children, the post-9/11 world, and realize that this is their normal.  This is the legacy of 9/11, that there is now a generation that has no memory of life before it “changed everything.”

Prior 9/11 Posts: 9/11/07 , 9/11/08, 9/11/09, 9/11/10.