One of the great things about being the government is that you get to create something like the National Institute for Justice, with its really cool sounding name and the imprimatur of being, well, trusted and important, when it’s an apologist for prosecution and law enforcement.

Even then, it’s research at its most favorable to the hand that holds the weapon can’t necessarily obscure the truth.  An  NIJ report concludes that Tasers are the mother’s milk of weapons, completely safe.

“There is no conclusive medical evidence in the current body of research literature that indicates a high risk of serious injury or death to humans from the direct or indirect cardiovascular or metabolic effects of short-term CED exposure in healthy, normal, nonstressed, nonintoxicated persons,” the report concludes. “Field experience with CED use indicates that short-term exposure is safe in the vast majority of cases.”

Medical evidence conclusively proves that there is a high risk of serious injury or death to humans from the direct and indirect cardiovascular or metabolic efforts of short-term CED (Taser) exposure in unhealthy, abnormal, stressed, intoxicated persons.

And we all know that Tasers are never, ever used on people who are unhealthy, or who are intoxicated, or who are under some sort of duress. So the debate is settled!

Typical libertarian snark, right?  After all, is it the cops’ fault that people have heart conditions, drink alcohol or suffer the debilitating effects of irritable bowel syndrome?  How could they ever know that the person against whom a Taser is used is, well, human.

The point remains that you have a better chance of surviving a Taser than a Glock, putting aside for the moment that hitting someone with a bullet requires the ability to aim.  This argument in favor of non-lethal less than lethal weaponry has one major flaw.  The use of a gun is only justified by the threat of lethal force.  The use of a Taser is justified by annoyance, overweight, unwarranted eyebrow raising and a rush to get to Dunkin Donuts when the next batch emerges fresh from the oven.

While policies vary, the use of Tasers seems to have avoided any meaningful policy limitations, as judged from the post-death assertions of law enforcement.  When is the last time you read a statement issued by police and an officer’s use of a Taser (other than against a spouse) violated department policies?  Never? 

Now that the National Institute of Justice has signed off on the rampant use of Tasers, thus conclusively establishing that they are safe to use (except against the people most likely to be tazed), we can all rest easier knowing that our government has carefully scrutinized the problem and declared that there is no problem at all.

Taze on. bro.

When I read the ramblings of legal futurists who predict rapture that the practice of law will undergo massive structural change in the near future, it throws me back to the days in the 50s when futurists predicts that by the end of the century, we would all wear polyester jumpsuits and get around in flying cars. 

Many of the predictions are modestly interconnected, like the unbundling of legal services (think buy fill in the blank Wills from Legal Zoom), outsourcing of grunt work to Bangalore, where document inspectors are paid 17¢ an hour to push paper from one pile to another, to robots in cravats delivering closing statements.  I have a prediction, that the heirs of half those people who spent $249 for their Last Will and Testament will be needing a darn good litigator when they find out why filling in the blanks isn’t good enough and that Pappy’s small estate has more of a chance of escheating than passing into their hands.

One of the things that few would suggests, not even the most ardent of futurists, is that trial work, and more particularly criminal defense, will ever be reduced to paint by numbers.  This may be because they don’t believe it to be possible, or that they fear that living criminal defense lawyers will beat them senseless if they get wind of the prediction.  The latter is not an empty concern.

Yet, one of our own has boldly leaped where no man has gone before.  Following on a  curious post by Josh Blackman, who is in the process of transitioning from law student to legal scholar by hurdling over the chance to practice law, if only for a moment.

Aside: One of the most intriguing things about most of those who aspire to telling lawyers what their future will be is that they don’t actually practice law, and some have never practiced law.  It’s like being a food critic when no savory crumb has ever passed their lips, and they’ve only gazed upon cuisine from afar, reminiscent of a Star Trek episode they’ve likely never watched where the food looked magnificent but had no flavor whatsoever.  And yet, they feel no shame in telling those who do about the view from those who don’t. Go figure.

Software cannot replace the judgment and creativity required for coming up with effective strategies, adapting the law, or persuading others.  Spotting the actual issue from a mess of facts, notwithstanding what the client happens to think the issue is. Figuring out what needs to be done and how best to do it. Coming up with the right questions, to get the most accurate data.  These are all human skills that algorithms just can’t handle at the moment.  These are the high-level functions that you’ll still need a lawyer for.

But a lot of lawyering really can be done by flowchart.  Once the issue’s been identified, it’s just a matter of selecting the correct law to apply, plugging the relevant data into that formula, and seeing what the answer is.  For a lot of junior associates, this is a big part of their job description.  The flowcharts can branch intricately, but that doesn’t make them any less formulaic.

Not what you would have expected, eh?  The Nathans go on:

It’s wrong to suggest, however, that people will be able to replace their lawyers with a website.  This kind of software is not going to be useful to clients — in fact, it could be downright harmful.  You’re still going to have to know what law to apply, how to apply it, when to apply it, and what facts are relevant.  If our experience of clients is any guide, most people — even super-smart people — suck at this.  They’ll say or do things that hurt their own interests, thinking they’re doing the right thing.  They’ll apply the wrong law, at the wrong time, in the wrong way.  Ask any lawyer who’s had to deal with the requests of clients who do their own research online.

But it can be extremely useful to lawyers.  In addition to being a real time-saver, it could be useful to ensure that you’re doing things right — no necessary ‘i’s are left undotted, no ‘t’s left uncrossed.  We can readily envision software that performs the function of a practice guide checklist, plus the researching/cite-checking/summarizing function of a junior associate, plus a self-guided flowchart to help properly navigate even the most intricate and convoluted areas of law correctly.  You’d have to know what you’re trying to do; and you’d have to be able to spot when it’s gone off in the wrong direction and what input is necessary to get back on track; and you’d have to know what to do with the output once you have it — the real lawyering is always going to require a real lawyer — but the right software is certainly in the realm of possibility, and it could be a great thing.

To the extent that we can trust computers to make sure there are no “undotted ‘i’s,” I proudly use spellcheck before posting, and yet constantly have misspelled words in my posts.  Spellcheck is useful. Spellcheck is unreliable.  It’s adequate for the purpose of a blog post, where a typo is no more than an embarrassment, but it would never do for a legal brief.

To the extent that Nathan(s) relates his argument back to what junior associates do, he has a point.  When we look at the rote application of law, whether statutory or caselaw, it takes words and phrases that are regularly repeated, and attaches them to defined issues, producing a predictable result.  Much like the judge who relies on a oft-cited quote from some age-old Supreme Court decision, to dispense with the need to think too hard about whether his reference is bound by actual precedent or the grocery clerk’s checklist.

Nathan would be absolutely correct if the law stopped at the point of competency and inventiveness of junior associates, where we remember the rhetoric and forget the rationale.  Where we cut complex concepts to the quick, and spew simplistic issues out the other end so they neatly fit pigeonholes of precedent.

This isn’t the law, brother.  This isn’t what we do.  We aren’t binary clerks, at least not if we’re any good at the job or care in the least.  We strive for a deeper grasp.  We think.  We push envelopes, not just papers.  We look behind the caselaw, and sometimes underneath and over, to the left and right, to understand why a decision by dead jurists doesn’t answer all questions forever. 

Some people apply the law.  Others make it.  Still others understand it, and how it relates to the unique facts of a case. 

Every case is unique.  I know, that sounds so Pollyannaish, where most see garden variety drug deals or assaults, but it’s true.  Look deep enough, think hard enough, and you will find something unique about your defendant or his case.  It may not be sufficiently important to take it outside the realm of a judge’s knee-jerk reaction, but you’ll never know if you haven’t found it.

Nathan seems to recognize this when he writes about how the lawyer still needs to oversee the churning of the computer, but it raised two questions: How would lawyers who become dependent on machines develop to the point where they have the experience and capacity to understand why computers, left to their own devices (get it?), aren’t good enough?  Nobody learned to program from plug and play hardware.

Second, isn’t the distinction between the yeoman and the master the ability to take the same raw materials, the same statutory and caselaw, the same tired rhetoric, and use it in a way that accomplishes a goal that would otherwise be unachievable?

Ain’t no computer can do that.  Ain’t no computer that will ever be able to do that.

Since the first time he told me I was wrong, he was one of my favorite commenters on SJ.  Over time, we became friends, and I grew to respect him immensely.  I even wrote an homage to him.  Joel Rosenberg, better known around these parts as Jdog, was a special guy.

Today, I received an email from his lovely and beloved wife, Felicia, who Jdog always referred to as SWMBO:

On Wednesday afternoon, June 1, 2011, Joel had a respiratory depression that caused a heart attack, anoxic brain damage and major organ failure.  Despite the very best efforts of the paramedics and the team at Hennepin County Medical Center, Joel was pronounced brain dead at around 5:37 pm Thursday June 2nd,  In accordance with his wishes, he shared the gift of life through organ and tissue donation.

He is survived by his daughters, Judith Eleanor and Rachel Hannah, and his wife, Felicia Herman.  Today, June 3rd would have been his 32nd wedding anniversary.

It’s not my way to wallow about such things.  So instead, I offer this image of how I will remember Jdog.

Rest in peace, Jdog.  TANSTAAFL

President Obama signed the renewed USA Patriot Act into law with an autopen.  Scandalous.  It’s a law so valuable, so important to the functioning of America, that nothing can stand in the way of its perpetuation.  How dare the president risk sunset.

At the time it was enacted, few, maybe even no one, knew it’s value, no less its contents. Sure, it enables the government to do scary things, powerful things, to protect us from terrorists.  And criminals.  And people who just don’t agree with the government. And people who do things that a cop somewhere thinks they shouldn’t do.

A guy in Maryland, Christopher Fussell, found this out as he was videotaping.  He shot. The cop didn’t like it and told him to stop. He argued. The cop explained.

Officer: “Listen, listen to what I’m saying. The Patriot Act says that critical infrastructure, trains, train stations, all those things require certain oversight to take pictures, whether you say they are for personal use or whatever, that’s your story,” the officer said.

Now, cops have always vaguely referred to bodies of law to justify telling people not to do things they have a protected right to do. But the PATRIOT ACT gives them undreamed-of street cred when they do so. See, (1) hardly anyone knows what is in it, (2) the media blindly pushes the narrative that the PATRIOT ACT actually does let cops do all sorts of stuff they’ve always done, and (3) the culture blindly pushes the narrative that we need to yield to authority whenever that authority can forge a connection, however tenuous, to OMG 9/11. Hence ignorance — both our own, and that of the people we look to for information — is one of the chains that binds us.

But there has been no tool, no law, more widely cited and less widely known than the USA Patriot Act.

Critics of the law argue that it’s a mere compilation of proposed and failed initiatives that had floated for years on the Department of Justice’s wishlist of powers it would like but no one, no legislator, would ever put into their hands.  Critics of the law argue that it was passed in a rushed heat of passion following the events of 9/11, when Americans were as malleable toward security as anyone could ever hope them to be.

Critics, however, didn’t appreciate at the time just how useful the law would be.  We focused on the language of the law, the powers put into the hands of law enforcement, the ability for abject abuse.  We did not concern ourselves with the law as a wordless penumbra of unadulterated power, where no one would bother citing chapter and verse, but merely mention the words “Patriot Act” and the word of a cop would itself humble the strongest man.

In the old days, laws prohibited particular acts, and people had at least a general idea of what conduct was unlawful and knew that they should behave within certain parameters.  Police officers were not generally of the view that whatever struck them, each of them individually, as a good idea for what people should not do, became law, enforceable by the might of their baton, taser, even gun if necessary, as soon as the word came out of their mouth.  That power didn’t really exist until the passage of the USA Patriot Act. 

Today, there is no longer a need for Congress to worry about the details of laws, to fret over which acts are lawful and which are not. It’s an irrelevancy.  The cop on the beat will decide for himself what’s wrong and not permitted, what requires a stern word and what justifies a damn good beating.  And when asked how he arrived at his assertion that his whimsical notion of law justified his seizing control over a citizen, he can proudly exclaim, The Patriot Act.

And President Obama almost screwed it all up by signing the extension by autopen.  What ever was he thinking, take such an untoward risk?

It’s unAmerican to say something about social media that has even the faint whiff of negativity.  We’re a “go get ’em” type of people, closing our eyes, holding our nose, and plowing forward into the abyss.  Damn the torpedoes, full steam ahead.  Well, you get the idea.

When news of the Practicing Law Institute’s full day program, Marketing-palooza, hit the twitterwaves, it caused an involuntary reaction compelling me to check it out.  On the bright side, no CLE credit was offered to lawyers to learn how to strut appropriately in high heels and satin hot pants.  On the dark side, it was full day of hugs, kisses and cheers.  No jeers in sight. Not a cloud in the sky.

My buddy, Kevin O’Keefe, was chairing the event, which was good news.  Despite his curious fascination with marketing, Kevin also preaches lawyer competency, which sets him apart from most of the social media gurus who wouldn’t know competency if it bit them in the butt.  They mouth the word sometimes, but  then they also think every kid with 12 minutes as a lawyer can honestly call himself “highly experienced.”

But then, Kevin offered this teaser for his program.

We have a real rockstar kicking off the program in Steve Rubel. Steve is the EVP/Global Strategy and Insights for Edelman – the world’s largest independent public relations firm. He’s done as much for blogging and social media as anyone I know. He’ll be speaking on Thought Leadership in the Digital Age.

Rockstar?  Thought Leadership?  Aw, geez.  I was kinda hoping that the  other Steve Rubell had come back to life, but chances of that weren’t very good.  The program was going to hype the new age of social media marketing for lawyers, start to finish.  There was no segment, no speaker, no curmudegeon, who would throw cold water on the enthusiasm. 

But perhaps one of the speakers, maybe one who was actually a lawyer, would at least mention that social media is not a truth-free zone.  Maybe someone would mention that manufacturing credentials and faux expertise was frowned upon.  Maybe somebody would say, “we’re still lawyers.”

Nope.  As Kevin and Bob discuss, during an interview by Kevin’s son Colin (who just happened to be hanging around with microphone and camera in hand, how fortuitous!), there was no mention, none, of the “perils and pitfalls” of social media.  The word “ethics” was never spoken.

Marcela Monroy, a student at the University of Paris II, Pantheon-Assas, working toward her Masters degree in Legal Sociology, has asked me to post a link to a survey she’s conducting on the impact of social networks (forums, blogs, chats, message boards, etc.) and the access to legal information.

After a bit of due diligence, her research is quite interesting, intended to ascertain not only how people gather information about the law, but whether it’s beneficial or dangerous.  So give Marcela a hand and take her survey.

Here’s the link to the English version of the survey.

Help a Parisian student out, guys.  It’s short, it’s painless, and it’s the least you can do to further our understanding of what the heck the internet means to people and the law.  And no, you don’t need to input your credit card number, social security number or register for Netflix.

Just do it.

That people do monumentally stupid things is almost definitional.  To err is human, and that’s putting it kindly.  One such stupid thing, as it turns out, is inviting people to hit you.  Charging $5 for the pleasure just adds to the aura of stupidity. 

Tiffany Startz, 22, put up her money and took her punch.  Aspiring rapper John ‘Fatboy’ Powell, 25, took the punch to the face.  Now he’s dead and she’s going to trial.  You can’t make this stuff up.

From ABC News :

John “Fatboy” Powell, 25, was attending and performing at a party with his band Krazy Killaz last September when he accepted a $5 party bet to be punched in the face by a woman.

A few minutes after Tiffany Startz, 22, had delivered a punch to his face, Powell passed out. He was taken to Provena Saint Joseph Medical Center in Joliet, Ill., where he died.

An autopsy on Powell showed that an artery burst in his neck and that he died from a brain hemorrhage caused by blunt force trauma.

Don’t you love the wacky names they come up with for bands?  I wonder why the Morons didn’t make the final cut. 

Now, Startz is on trial and facing charges of battery and reckless conduct. Her lawyer Ira Goldstein said, “There’s nothing reckless here. What she did was intentional. [Powell] said he would accept the punch from her.”

Startz is 5-foot-5′ and weighs 142 pounds and Goldstein said, “She’s a young girl with no training in body building or karate or fighting or anything like that.”

“There was no animosity, no maliciousness,” added Goldstein, “just a stupid party stunt that went terribly wrong. No one anticipated this.”

Goldstein moved to dismiss the charges, arguing that this was consensual conduct.  Stupid, but consensual.  County Judge Edward Burmila refused.  Not surprisingly, Fatboy’s mother was relieved.

Theresa Guy could barely breathe after a Will County judge refused to dismiss charges against a Joliet woman Friday who is accused of killing Guy’s son in a party game gone wrong.

Guy cried and hugged family and friends, and she tried to catch her breath. She knows the 22-year-old Startz could still be acquitted at trial, but the case isn’t over after the ruling from Judge Edward Burmila.

“She can’t walk away today,” Guy said.

Walk away from what?  From your rapper-wannabe son’s need to prove he’s a tough guy by being punched in the face by some girl for $5?  While I can understand a mother’s heartbreak about the death of her son, that doesn’t extend to absolving him of his stupidity in this incredibly idiotic scenario.

Startz’s lawyer, Ira Goldstein, makes the only reasonable point in this whole sordid mess, that as stupid as this entire affair may be, there is no crime when the conduct is consensual.  Consent is clearly a defense to battery, and stupid isn’t reckless, particularly when there is nothing to suggest that a single punch, even one to the face, had a likelihood of causing death. 

That Judge Burmila failed to dismiss is inexplicable, short of the basic judicial inclination to avoid making difficult decisions and earning his pay.  It’s so much easier to push it off to a jury, so that any residual anger will fall on their shoulders rather than his. 

This case, and indeed the entire scenario, is ridiculous, but for the fact that there’s a dead 25 year old.  It’s not that young people are suddenly stupid today when they weren’t before.  They’ve always taken foolish risks, and believed themselves to be invincible.  It’s been going on forever.

What is different is the belief that every outcome demands a legal solution, that if someone dies, someone must be held accountable for it.  Stupidity was once a sufficient explanation, but it has now become so deeply embedded into our lives that it’s no longer sufficient to explain why there’s a dead body on the ground.

The biggest question remaining is whether some legislator will latch onto this cause and propose Fatboy’s Law, prohibiting face punching at parties at $5 a pop.  Only afterward will I concern myself with the potential for a face punching registry.

There’s little doubt that neither Startz nor Fatboy desired or anticipated any real harm coming from this momentary lulz.  In the age of Jackass (1, 2 and 3D), this barely registers on the scale of pathetically stupid deeds.  And it should be anticipated that even more idiotic stunts will be performed in the future, since the need to surpass the depth of yesterday’s stupidity seems unquenchable.

But does the criminal justice system have to participate in this downward spiral?

H/T Jonathan “Houdini” Turley

Ken Lammers, former CLTV star, defense lawyer turned prosecutor extrardinaire, posits a provocative notion at Crimlaw.

Recently, I asked a number of fellow layers a simple question: is the law a reflection of morality or merely a way to organize society? Every single one, from those who are pragmatic, non-philosophical types to those whom I perceive to be deeper thinking, more theologically oriented answered that the law is there to organize society.

That’s more than a little disturbing. Law which orders society, but which is divorced from morality is dangerous. A society can be perfectly ordered and extremely well run and do terrible things.

Royce Mitchell, 36, adamantly denied it.

“I did not have sex with Tiffany,” he told the judge in November 2009. “I most certainly did not. This is definitely a nightmare for me and my family. I wish Tiffany could be here.”

Tiffany, a Hawthorne High School student, was shot to death in September 2009 while waiting for her school bus. She was eight months pregnant. Her baby also died.

Mitchell was charged with statutory rape during the investigation into the shooting, but when DNA tests showed he was not the father of the baby, the charges were dropped for lack of proof.  But that didn’t mean Mitchell was free and clear, being under supervised release from a 2002 New York federal drug conspiracy conviction.  While the absence of a witness and lack of corroborating evidence precluded a direct accusation and trial, the supervised release was a big back door, which the feds were only too happy to enter.

Without Tiffany alive to testify, Mecklenburg prosecutors said there was no other evidence to support the sex charges.

But federal authorities went on to accuse Mitchell of violating the conditions of his release from prison, which required him to stay out of trouble.

Prosecutors did not have to prove beyond a reasonable doubt, as they must do in criminal trials, that Mitchell had sex with Tiffany. Instead, they had to show by a preponderance of the evidence that Mitchell committed the sex acts.

Based upon Tiffany’s accusation to the detective, and despite Mitchell’s adamant denial, he was held to be in violation of the terms of release and sentenced to imprisonment for an additional 2½ years by Chief District Court Judge Bob Conrad.

Mitchell appealed to the 4th Circuit, arguing that Tiffany’s allegations were “uncorroborated, unsworn and inconsistent with other statements she had made.”  In other words, this was a giant step below the typical he said/she said that would have been the centerpiece of a trial, just a pointed finger and no one to challenge.

Mitchell lost.

But earlier this month, the U.S. 4th Circuit Court of Appeals in Richmond ruled: “It is hardly surprising that such an intimate matter, especially one associated with illegality and social taboos, would not be subject to ready corroboration.

“We cannot say that, under these circumstances, the government’s inability to independently verify Tiffany’s statements render them inherently unreliable.”

Well, yeah, that’s true.  The inability to verify an allegations doesn’t render them inherently unreliable.  It also doesn’t render them reliable.  It certainly doesn’t prove the allegations.  And it would seem that it would make such allegations utterly worthless as a basis to violate Mitchell. 

The decision presents an untenable situation.  Mitchell can’t prove a negative, that he did not have sex with his young stepsister.  Mitchell can’t challenge the allegations, since Tiffany’s death precludes examination and the detective’s testimony merely repeats (assuming, he doesn’t gild the lily) what she said.  There is nothing to prove the truth of Tiffany’s allegations, and no way to prove them false.

This is why there is such a thing as burden of proof.  But the burden of proof at a criminal trial, beyond a reasonable doubt, is different than that for a violation of supervised release.  The latter is merely preponderance of the evidence.  Even so, it should fail.  But the 4th Circuit played the “abuse of discretion” card.

The decision to revoke Mitchell’s supervised release is committed to the district court’s sound discretion, and, absent an abuse of that discretion, not to be disturbed on appeal. See Copley, 978 F.2d at 831. In this case, the question of whether the district court abused its discretion is inexorably bound to the plausibility of its determination that Tiffany’s statements were reliable.

No it’s not.  No, no, no.  The reliability of Tiffany’s statements, at best, go to the court’s consideration of them at all.  Absent indicia of reliability, they are sheer hearsay and shouldn’t be considered at all.  That there is some basis for finding them reliable goes only so far as considering them. 

So is the 4th Circuit really saying that an out-of-court, unsworn, uncorroborated statement, as related by a detective, meeting the bare minimum threshold for admissibility sufficient to trump a sworn, in-court denial? Apparently so.  At least, it says that a judge didn’t abuse his discretion for so concluding.

The allegation against Royce Mitchell was pretty sick and disgusting, which no doubt tainted him in the judge’s mind, particularly when coupled with his being a convicted felon.  while drug charges and sex with a 15-year-old step sister have no relationship, the sense that somebody is just a “bad guy” is often enough to make people assume all manner of evil.

But just because somebody is pigeonholed as the presumptive bad guy doesn’t make him presumptively guilty of any allegation leveled against him.  Royce Mitchell never stood a chance of fighting the accusation.  There’s no way to challenge the allegation of a dead person, hanging in the air with nothing but it’s lingering taint.  With the abuse of discretion machinations of the 4th Circuit to make Judge Conrad’s whim untouchable, he was powerless to fight.

Under the best of circumstances, Mitchell’s denial should have rendered the determination a draw, with the hearsay allegation against him and his sworn denial in his favor.  Frankly, it’s not even that, as hearsay isn’t the equivalent of a live, sworn denial subject to cross-examination.  And yet it was “likely” enough to put Mitchell in prison anyway.

H/T Bad Lawyer

The  acquittal of former cops Kenneth Moreno and Franklin Mata for rape does not sit well with some.  It’s not that few people bought their story, that their drunken charge enticed them by dancing naked, except for her bra.  It’s not that people bought the claim that Moreno just “snuggled” with her, maybe kissed her on the shoulder.  Nah.

It’s that in the hierarchy of things hated, rape is a sacred cow.  If a women says she was raped, then she was raped (unless she later admits she wasn’t raped, but then we start screaming “lalalalalalala” so the offensive idea can’t be heard).  The acquittal sparked outrage.  By definition, an acquittal couldn’t possibly mean that despite the stench of guilty cops, the proof fell short.  Except in this case, it did.

Howard Wasserman at  PrawfsBlawg raises the specter of one of the most dreaded weapons in the prosecutors’ arsenal, the nuclear option for prosecutions that fail to achieve the societally demanded outcome. 

Last week’s acquittal of two New York City police officers on rape charges (they were convicted on three counts of official misconduct, resulting in their immediate firing and some further criminal punishment) has sparked outrage and protests. The victim still has a multi-million dollar federal civil rights action against the officers and the city.

But might the Justice Department also bring a federal civil rights prosecution against the officers? Successive or dual federal prosecutions based on “substantially the same act(s) or transactions involved in a prior proceeding” are governed by DOJ’s Petite Policy, which lays out three requirements for a federal prosecution:

[F]irst, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact.

The Petite Policy isn’t law, but rather the Department of Justice’s internal guidelines for when it should exercise one of the law’s most dreaded and disingenuous weapons: Dual Sovereignty.  It smacks of a violation of double jeopardy, but the caselaw says otherwise.  It’s one of those things that only judges and lawyers can accept; by common definition, the construct of dual sovereignty is little more than a hypertechnical rhetorical trick to circumvent the constitutional prohibition against trying a person twice upon the same facts.

There is a real purpose to the policy, to overcome the situation where a local prosecutor takes a dive in a case against someone, assuring acquittal (and thereby precluding penal consequences) against someone when there is strong evidence of a heinous crime, but where a conviction is locally unpalatable, whether politically or socially.  The acquittal of a “respected” Klansman for the lynching of an “uppity” black man is the paradigm.

Wasserman talks about the prosecution of Stacey Koon and Laurence Powell following the Rodney King beating as the “most famous example” in his lifetime.  By limiting his point to his lifetime, he omits the best argument for dual sovereignty, and relies instead the less convincing application of the government’s rationale.

The second element is where a lot of the action occurs. Under the policy, federal interests have presumptively been served by a state prosecution, regardless of outcome. That presumption may be overcome based on a number of factors, including indications that nullification occurred in the prior prosecution or where the state prosecution failed on an element that would not have to be proven in the federal prosecution. The presumption also may be overcome, regardless of the outcome in the state prosecution, where:

first, the alleged violation involves a compelling federal interest, particularly one implicating an enduring national priority; second, the alleged violation involves egregious conduct, including that which threatens or causes loss of life, severe economic or physical harm, or the impairment of the functioning of an agency of the federal government or the due administration of justice; and third, the result in the prior prosecution was manifestly inadequate in light of the federal interest involved.

The nullification point, one that current adherents of the cause of jury nullification often forget, relates back to the Klansman example, where the jury of whites won’t convict one of their own.  The second, where the state prosecution includes elements not needed in the federal prosecution, thus allowing a successful second prosecution solely because it’s just plain easier to convict, is particularly noxious.  Not enough proof? Eliminate the troublesome elements. Easy.

The third argument to overcome the presumption that a state prosecution vindicated federal interests, however, is where the Petite Policy is reduced to a joke.  The language aside, it simply means where the feds decide that they really, really want to convict.  Where the “result” was “manifestly inadequate” sounds better, but means the same thing.

So is this an appropriate case for a successive federal prosecution?

This was a high-profile state prosecution that drew a lot of media and public attention. There is visible public anger over the verdict . . .

DOJ obviously wants to avoid the appearance that it brings subsequent civil rights prosecutions simply because the media pays attention to a case and enough of the public believes a state court verdict was wrong and expresses that belief loudly enough. But there are serious federal interests in gender equality and in stopping police misconduct that may justify a prosecution here. And because the case is something of an outlier on its facts, it could be a flashy-enough prosecution to give the federal government “more bang for the buck” in civil rights enforcement.

And this is what’s wrong with the Petite Policy and the concept of duel sovereignty.  Manhattan District Attorney Cy Vance was right to bring the case to trial, there being enough evidence to try the case and put it in the hands of a jury to decide.  It was fought hard.  Even the brothers in blue didn’t back up Moreno and Mata, as they would have if they had simply raped some black guy with a plunger.  And yet, the jury acquitted because the evidence fell short of proof beyond a reasonable doubt. 

Sadly, the defendant police officers may have gotten away with a horrific abuse of their office and authority.  Happily, a jury decided the case not on the anger and disgust of the allegations, but on the lack of evidence of guilt, despite the stink.  That’s how it’s supposed to work.  For those who balk at the fact that the system always seems to work better when it’s a cop in the dock, another unfortunate reality, the answer isn’t to be unfair to cops, but to be more fair to all.

There may well be some great headlines available for the United States Attorney for the Southern District of New York, Preet Bharara, for trying to appease the the blood lust, but there is no legitimate basis to prosecute Moreno and Mata a second time.  The Big Apple tried hard to convict the cops for rape and failed.  There is no legitimate justification for the government taking a second bite.