Not long ago, the point was made that  consent is the new dropsy when it comes to cops circumventing the Fourth Amendment.  It’s got all the great attributes that any police officer would want from a lie, and the only witnesses to it are the cop and the criminal.  Who you gonna believe?  Bingo, the new open door policy.

And so it was used in San Francisco, where a drug raid required a lawful entry to nab the perp and grab the evidence at the Henry Hotel, a skid row joint.  The  SF Appeal provides the official details:

In the first incident on Dec. 23, four officers arrived at the Henry Hotel and obtained a master key that allowed them to open the doors to any room.

At that point, Officer Arshad Razzak wrote in his police report that officers knocked on the resident’s door, announced themselves and waited for a response.

According to the report, after hearing no response, the officers used the key to slightly open the door and, without entering the home, told a female resident they were waiting outside until they could obtain a search warrant.

The woman then gave the officers verbal permission to search the premises while officers contacted headquarters and asked for a consent form she could read, according to Razzak’s report.

A man inside the room was then arrested on suspicion of possessing 65 grams of heroin and a single rock of crack cocaine, said Deputy Public Defender Anne Irwin, who represented the suspect.

At a press conference, deputy public defenders Tal Klement and Anne Irwin showed video taken by surveillance cameras during separate drug raids in December and January at the Henry Hotel, a residential hotel on Sixth Street’s skid row.

In both instances, the defense attorneys said, the police officers failed to get consent from the apartment-dwellers before conducting warrantless searches for narcotics.

San Francisco District Attorney George Gascón said today that his office will be investigating surveillance video taken during two drug busts at a residential hotel in the city’s South of Market neighborhood that appears to show police misconduct.

Given Gascon’s ties to the Police Department, Adachi had called for an outside agency like the state attorney general’s office to investigate the case.

Gascon said he saw “absolutely no reason why I should recuse myself” from the case.”

After all, just because police officers felt entirely comfortable fabricating consent in order to bust into a room at some skid row motel under Gascon’s watch is no reason to suspect that he would be slightly protective of his legacy as an honorable police chief running an honorable police department of honorable cops with a culture of honor. Except for that damn video.

So Adachi, in what Gascon obviously sees as a gross excess of caution, calls for the state AG to handle the investigation.  What could possibly go wrong?

That request could pose another conflict of interest because state Attorney General Kamala Harris was elected in November to her current post while she was still the city’s district attorney.

That would make Harris the person embracing the cops’ claims of consent as they broke down doors at the Henry Hotel, suggesting perhaps that Harris’ assistants might not have scrutinized the police allegations with sufficient skepticism to honor that oath to protect and defend the Constitution.

One might begin to wonder what the heck is happening on the streets of San Francisco.  Karl Malden passes, and the whole place goes to seed.  Given the inbred nature of those charged with watching the watchers, making sure that the police aren’t lying through their teeth because it’s a whole lot easier to claim consent than get a warrant, or actually wait a few minutes to see if they can manipulate some scared woman into opening the door, one might never know the truth.

But for video.

H/T Sean

The Supreme Court’s decision in Snyder v. Phelps fleshed out at 8 to 1, holding that Fred Phelps’ First Amendment rights precluded Albert Snyder’s action against him for the conduct of the Westboro Baptist Church at the funeral of his son, Matthew.  Hopefully, my own constitutional bona fides will enable me to write what follows without being hung, in effigy or otherwise.

Many, in fact everyone but Sarah Palin, praised this decision as upholding the vitality of free speech at its extreme edge.  Not surprisingly, no one does it better, or in a more unique voice, than my pal Marc Jon Randazza, who describes the case thus:

To understand this case, you must unplug your emotional reaction to the speech that brought about the case in the first place. The fact is, nobody likes the Westboro Baptist Church. Or, more to the point, nobody worth a damn does. If you are one of the three people in America who does not know about Westboro, here it is: Westboro is a “church” made up of some lowlives from Kansas. These lowlives believe that there is a magic zombie who lives in space. By the way, the space zombie is Jewish. They think that the space zombie, and his father, who is the same person as the zombie, wrote a book. They also believe that this book says that homosexuals are bad. (mmmkay?).

As if that isn’t nutty enough, they also believe that the United States is too nice to homosexuals, and therefore this magic space zombie jew and his father (who is the same person as the magic space zombie jew) do bad things to America and Americans to punish us all for not killing homosexuals. To demonstrate this belief, the Westboro members go to funerals for soldiers killed in combat, and they hold up signs that say “GOD HATES FAGS” and “THANK GOD FOR DEAD SOLDIERS”.

There is no one, absolutely no one, who holds the first amendment dearer than Randazza.  And yet even Marco can’t describe this case without noting that Phelps, and his lowlives at the Westboro Baptist Church, are the sort of scum worthy of extreme measures to be sure it doesn’t touch the bottoms of our shoes.

To note that rights are protected at their most extreme is obvious, at least to lawyers.  It’s meaningless to protect the rights of those we like and embrace.  The test of our adherence to the Constitution is whether we afford those rights to those we despise.  And if ever there was a group we despise, it goes under the name Westboro Baptist Church, with Fred Phelps leading the way.

If there was a merciful/vengeful God, he would run Phelps down with a Ford F-150.  Then he would throw it in reverse and do it again. Phelps is giving the Big Guy a bad name.  But the magic space zombie jew (Randazza’s words) has yet to do so, commending Phelps to the Supremes for judgment.

In my mind’s eye, I see the post oral argument conference, where the justices take their preliminary vote.  Not a voice is raised against Phelp’s First Amendment right, but C.J. Roberts sees the slight twitch, just below Sam Alito’s left eye at the crease where his cheek bone meets the fold of skin that wasn’t there in his youth.  As they walk from the room, they chat.

C.J. Roberts:  You know, Sam, that we’ve got to stand behind the First Amendment on this one.

A.J. Alito:  Of course.  What else can we do?  But this mutt…

C.J. Roberts:  Everybody feels that way.  Wild Bill Douglas would have felt that way.

A.J. Alito:  And yet a branch of government, a whole branch, is going to empower the lowest nutjobs in America.

C.J. Roberts:  Well, Sam, an 8 to 1 decision sends as strong a message as a 9-0 decision.  If someone was to break ranks, kinda take one for the team by ripping this wackjob a new one, well…

A.J. Alito: You wouldn’t be miffed if someone goes off the reservation, J-man? Thanks. I owe you one.

And Associate Justice Samuel Alito dissents.

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.

Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church,approached as closely as they could without trespassing,and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury. The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.

The First Amendment is not absolute.  Not every word, thought, expression is protected. Most of the time, the limits are imposed to protect others from imminent, actual, physical harm.  The limits are not used to shut down speech because of the offensiveness of its content on a subject of public interest or concern.  But then, Albert Snyder was, as Justice Alito notes, not a subject of public interest or concern.  Albert Snyder was a father who gave a son for his country, and only seeks to mourn his loss.

Fred Phelps was not merely a nutjob, but a nutjob with an acute sense of publicity. The picketing of Matthew Snyder’s funeral, even though 1000 feet away and on public ground, would get his name in the papers and his face on the telly.  Fred Phelps desired prominence.  Whether because of a belief in his warped message, or just because he’s warped, I can’t say, but Albert Snyder’s misery was Phelps happiness.

Was the fact that Albert Snyder was a private figure, and the funeral of his son a private function, sufficient to fashion a conceptual ledge that would the stop the slide down the slippery slope?  No.  It was a darn good try, but deeply flawed.  If outrageous and offensive speech was limited to those people, those events, that deserved it (as far as some judge or  twitterer was concerned), the freedom to speak would be fundamentally undermined.  No question about it.

But is there anyone, any lawyer, who doesn’t wish that there was some test that would provide an iron-clad rationale that would shut Fred Phelps’ mouth, wipe the smirk off his face and shove his insanity down his throat?  Let’s be honest about it: We all agree that the Supreme Court made the right decision, but we all wish that this one time, just this once, we could rev up the old Ford F-150, close our eyes, and hit the gas.

Sam Alito’s dissent did not harm to the First Amendment.  At 8 to 1, no one doubts that the Court, even with all the negging that came out of its Citizens United decision, did what it had to do in sufficiently clear terms that the message cannot be denied.  The First Amendment protects the free speech of scum.  As it should.

And the lone dissenter, Sam Alito, knowing full well that his position would neither change the direction of First Amendment protections nor satisfy the need to fashion a means by which the most disgusting and offensive among us could be shut down without touching the right of anyone else, took the bullet for the Court.

He said what needed to be said, that what Fred Phelps did to Albert Snyder was disgusting, a disgrace, a blight upon the Americans and humanity.  He said so knowing that his would be the lone voice, of no legal consequence but sufficient that Fred Phelps didn’t walk away thinking that the magic space zombie jew really loved him.  Fred Phelps may have won, but let him always fear the sound of a Ford F-150 revving its engine behind him.

And for his, we owe Sam Alito.

At one time, Marni Yang was an attractive woman.  She’s been in jail since 2009 awaiting trial for the murder of ex-Bear Shaun Gayle long-time girlfriend, Rhoni Reuter.  She’s not looking very good these days.  Jail can do that to a woman.

Yang is looking at a tough trial.

Yang allegedly shot Reuter at least six times — and intentionally fired two bullets into her abdomen in an attempt to kill her unborn child, prosecutors have contended. Stride agreed to allow jurors to see an autopsy photo showing the infant had been hit twice by bullets.

The impact of seeing an autopsy photo of the bullet-ridden fetus can’t be understated.  It will be a horrible and outrageous image, one that may (and should) cause revulsion in every juror’s mind.  And as with all things more prejudicial than probative, it will cause jurors to feel compelled to blame someone for the horror.  That’s the only reason to introduce such a horrific image at trial.

But the anger and outrage bears no connection to who shot the gun, and that remains the fight for Yang.  Among the many issues she faces is her appearance.

“Her appearance has declined,” said Hedrick. “She looks like a crazy woman. She does not look like anybody who Shaun Gayle would ever have a second of interest in.”

In an effort to return his client to the status quo ante, William Hedrick moved the court to allow the defendant to wear make-up and have her hair, now gray and wild, cut and died.

Stride also again denied requests that the 43-year-old Yang, who has been jailed since her March 2009 arrest, be allowed to wear makeup during the trial and have her long, graying hair cut and dyed. Her attorneys have contended that her appearance otherwise makes her look “like a crazy woman.”

Like it or not, appearance matters.  It matters a lot.  It matters in every case, but it’s particularly critical in this case where the defense is founded upon the defendant’s claimed involvement in a sexual relationship with Gayle.  Not only does she look like “a crazy woman,” but she most assuredly doesn’t look like a woman with whom Gayle would be having sex.

It’s not that the defense is seeking to turn Yang into someone she isn’t, and never was, but return her to the physical appearance she had at the time the murder happened.  This has nothing to do with vanity, and isn’t really linked directly to giving the jury the misimpression that “she looks guilty.”  This goes to the heart of her defense, and the judge’s denial of the application deprives her of her right to present a defense.

Here’s an image of what Yang looked like in her pre-jail days.  Whether her come-hither look is the sort of thing that turns you on isn’t the point.  The point is that she didn’t look like a prison crazy woman.

Here’s her mugshot.



Not quite as nice.  I haven’t found any picture of her recently, but I imagine it’s likely to look a lot worse than even the mug shot.

But that’s not the woman who Gayle allegedly had the hots for, and it shouldn’t be the woman the jury sees sitting at the table attempting to make her defense.

Judge Christopher Stride’s denial of the defense application, to allow an incarcerated defendant the opportunity to address her appearance such that jail, and not conduct, undermines her defense isn’t a laughing matter.  The application isn’t a plea for vanity, but the constitutional right to present a defense unaffected by extraneous and improper forces.  His denial is wrong.

And it’s not the only wrong thing about this story.  This came to me via Above the Law’s Morning Docket, a round-up of the more salacious legal news of the day.  Written by some anonymous twinkie straining to find humor in things beyond her grasp, this was the snippet:

A judge in Illinois won’t let a defendant who looks like the Crazy Cat Lady from the Simpsons get her hair done or wear makeup at trial. [Chicago Sun-Times]

How nice that some bimbo baby lawyer saw an opportunity in this murder case, where a defendant will be subject to untenable prejudice at every turn, to make reference to the Simpsons crazy cat lady.  Let’s all enjoy a good laugh at a severely prejudiced defendant’s expense.

Hot mikes are so much fun. No, not this type of hot Mike, but microphones that are electrified and recording words spoken when the speakers don’t realize it. Sometimes it’s a  president (or vice).  Maybe even  the host of a children’s television show.  And sometimes it’s a cop.  Or two.  From Radley Balko :

Cops launch drug raid based on anonymous tip and a single marijuana stem found in the trash. End up raiding a home recording studio. Begin deliberations on what cool stuff they’re now permitted to take

The report, stating that police are only authorized to take property purchased with money earned from drug sales, is totally wrong.  Police are authorized to seize contraband, proceeds, substitute proceeds, and the instrumentality of a crime.  If drums aren’t instruments, than what is?

Nothing goes better with drugs than music, whether it’s jazz (the traditional gateway to drug addiction) or rock ‘n’ roll (which also goes better with coke).  And it’s hard to make music without musical instruments, right?  And that makes them the instrumentality of the crime.  And by the way, you don’t end up with a stem in the trash until you’ve fished through the baggie to separate out the buds, so let’s not harp on the “it was only a stem” factor.  Where there’s smoke, there’s fire, and where there’s stems, there’s weed.  Everybody knows that.

At the scene of the crime, it’s often hard for police to figure out what exactly should be seized and what should be left behind.  If they fail to seize when the time is ripe, chances aren’t good that they can come back at some later date and grab whatever loot is left lying around.  It’s now or never, and let the courts sort it out later.

Most importantly, it’s actually good news, no great news, that the police had a burning love for musical instrumentalities as they packaged up their seizure for eventual forfeiture or, more likely, use at their next office party.  When the cops like the stuff they’re seizing, the treat it with relative care, trying their best not to damage and destroy everything they touch in the process.  As anyone who has gotten seized property back knows, it’s not always in the same condition as when taken.  One of the best businesses in town is owning the flat bed truck parked outside the police impound yard.

So before people jump on the bandwagon and criticize cops for doing their job too well, I implore you:  Think of the drums.

I wrote a post yesterday about the amusing naked, slimebag mud-wrestling between Neil Squillante’s  TechnoLawyer and Aaron Street’s Lawyerist.  The fight, as described by Carolyn Elefant at My Shingle, was over Squillante’s  take-down notice for the Lawyerist using the words “Small Law” in a post.

Perhaps Technolawyer has a trademark on the term SmallLaw – but the phrase “small law” is purely descriptive.  I have used it many times myself at my blog, MyShingle, long, long before your newsletter ever began covering these issues.  My blog also has enormous visibility on all matters related to solo and small law, and frankly, the takedown letter has a chilling effect on anything that I might ever write at my blog.  Will I too be subject to a take-down notice if I use the term “small law” in a header?

I changed my mind about posting almost immediately.  Both the Lawyerist and TechnoLawyer are turds in my book, and unworthy of my attention.  After all, this was the same Squillante involved in the  ABA Blawg 100 vote buying fiasco. and Street’s “lawyering survival guide,” premised on the HuffPo concept of offering space to any idiot willing to write for free, no matter how vapid and worthless the post, is a mile wide and a millimeter deep.

But then Neil raised the stakes in his effort to rationalize his absurd claim to own Small Law.   Squillante told the ABA Journal :

After more than two years of using the mark and building our reputation in SMALLLAW, we find it surprising that a fellow online legal publication founded by lawyers would act so lawlessly. Lawyerist’s publicity stunt attempts to conflate a narrow trademark issue about the name of an online publication with some sort of faux cause célèbre on behalf of small firms.

We believe Lawyerist’s actions reflect on good versus bad Internet citizenship, not just trademark law. For example, we have linked to 292 Lawyerist articles in our BlawgWorld publication since January 2009, including two links in yesterday’s issue. By contrast, Lawyerist has never linked to TechnoLawyer. Not even in yesterday’s article, which was about TechnoLawyer.

So Lawyerist is a “bad internet citizen” because they don’t give TechnoLawyer any link love?  That’s what this is really about.  Just like Squillante’s cash sweepstakes for those who vote for TechnoLawyer, good and evil online are determined by what helps Squillante’s business?

While my gut reaction to this nonsense was a pox on both your houses, Neil’s latest effort to make this a war between good and bad internet citizenship lowers the bar (with apologies to  Kevin Underhill and some gratuitous link love).  As much as the Lawyerist may appeal to young lawyers who are dumber than bricks, TechnoLawyer makes it look thoughtful and worthwhile.  It makes me wretch.

The internet wasn’t invented (whether by Al Gore or otherwise) in order to put money in Neil Squillante’s pocket.  Internet citizenship, whatever that means, isn’t dependent on supporting Neil Squillante’s financial interests.  And as big as the internet might be, there’s no room in it for Neil Squillante to lecture anyone on virtue.

There is a definite good and bad, right and wrong, in my blawgosphere.  It entails the promotion of excellent lawyering, client service and adherence to our ethical obligations.  It’s got nothing to do with Squillante making money or getting links.  It’s got nothing to do with Squillante winning any prizes, no matter how much cash he offers in his sweepstakes.  It’s got nothing to do with paybacks and one hand washing the other, the sort of conduct that makes people despise lawyers.  And my good/bad, right/wrong blawgosphere has nothing to do with Neil Squillante.  If I want to use Small Law, or SmallLaw, or SMALLLAW, or smalllaw, send me a letter and we’ll find out who’s a good internet citizen.

I gave you a link, Neil.  Are you happy?

In the Chronicle of Higher Education, UC-Irvine Law School Dean Erwin Chemerinsky speaks of the future of legal education:

One reason schools are sticking with a familiar playbook: “It’s a cost-effective method of education,” Mr. Chemerinsky said. “Putting one professor in front of a large group of students is very efficient.” Clinical classes and simulations, which require low student-to-faculty ratios, cost more, he said.

Because his own law school wasn’t bound by decades of tradition, Mr. Chemerinsky said, he and the founding faculty members were able to do some things differently, like stressing hands-on, interdisciplinary study across all three years.

“It starts with having to charge ridiculous levels of tuition.”

By the way, what is “hands-on, interdisciplinary study”? Do we get to fondle a sociologist? 

You know what I would love in a new school — one that “wasn’t bound by decades of tradition”? A deliberate decision to embrace tradition. Let’s get a bunch of tough Socratic lawprofs in front of a classroom of students. And that’s it. Perfectly cost-effective. You can save money on admissions too by going old-school. Make it an old-fashioned GPA/LSAT meritocracy (and flunk them out if they don’t perform).

Women’s natural intuition, compassion and empathetic natures can help clients reach peaceful, creative, and satisfying solutions as well.

No well-behaved woman ever made history. Nor did she end the international slave trade in little girls.

Ready to misbehave yet?

Who would you prefer to have next to you in a brawl?  It shouldn’t be a brawl?  Maybe not, but when the hugging stops and the punching begins, nobody wants a lawyer who can’t land a left hook.

The dreaded pedagogy of the Socratic Method isn the cause of litigation, but the response.  It’s used because it develops the skills that lawyers use and need.  It’s unpleasant, if not downright miserable, for law students, unlike everything they’ve experienced up to that point, where teachers, parents, professors spent their days telling them how wonderful they are, how smart and cute, how the only thing they need to do to be successful and worthy is try their best.  What a load of crap.  Trying your best is fine for a second grader, but trying a case is what a law student needs to learn.

That it happens to now be traditional is just a matter of stumbling on an effective method of teaching early on.  The fact that UC-Irvine wants to do it differently, and at a much higher tuition, may be part rejection of tradition, but its also the abdication of responsibility to teach law students how to be lawyers.

When courts are replaced by therapy groups, Erwin Chemerinsky will be cutting edge. Until then, let’s show a little respect for tradition.  Not because it’s traditional, but because it works.

The line between a prank and danger has never been particularly clear, usually depending on the delicacy of one’s sensibilities and the projection of long-repressed memories of childhood slights.  But there are some things that are simply classics, one of which is putting a “kick me, please” sign on another kid’s back.

In the age of zero tolerance, however, even the classics must fall.  From the New York Post:

The fourth-grader was spotted sticking a yellow Post-it inviting “Kick me, please” on another little boy’s backside on Jan. 25.

But instead of getting banished to the corner for a timeout, the PS 158 prankster was bounced from the classroom for two days, The Post has learned.

The boy’s mom fumed that the old-school gag was just “playing around” — but a parent who asked to remain anonymous called the Post-it “maliciousness — it’s not kid’s play.”

And so, the heavy hand of protecting our youth from bullying fell.

The little boy’s behavior triggered a stern warning to the boy’s parents by school Principal Darryl Alhadeff.

“This incident is in violation of the Discipline Code and is classified as ‘infraction A37’ — engaging in bullying behavior — and will result in a Principal’s Suspension for a period of two days,” he wrote.

The  struggle to define “bullying,” a question I raised that has yet to be answered, hasn’t stopped angry parents and grocery clerks from exacting their punishment.  This idea that we can so utterly sanitize the environment in which our children are raised so as to eliminate anything that might potentially hurt someone’s feelings, is insane.  Our children need to learn to cope in a world populated by real people.  They need to be able to distinguish a prank from an attack.  They need to be able to take a punch once in a while and punch back.

What the heck are we doing to children, but the ones who engage in something so obviously intended as nothing more than a joke, as well as the ones who are being taught that mindless rules are the solution to anything that diminishes their self-esteem? 

While the examples of zero-tolerance madness are legion, this particular instance stands apart for its homage to probably the most classic schoolhouse prank ever.  Your grandparents did it. Your parents did it. You probably did it too.  And now, should your kids do it, they get suspended?  At least the 9 year old wasn’t led off in handcuffs, though I suspect that’s fortuitous and we’ll see that someday soon as well.

We’re in a marketing phase where products claiming to eliminate 99.9% of germs are all the rage.  What parent doesn’t want to protect her child from germs, right?  Except children need exposure to germs. Children need to develop a tolerance to what they will be exposed to throughout their life, and by depriving them of this exposure, we risk them harm when exposed to a particularly malevolent germ that would otherwise do them no harm.

This isn’t to say that we ignore real bullying, whatever that may be.  But it has to be more, significantly more, than putting a post-it that says “kick me, please,” on a kid’s backside.  Do we want to raise a generation of kids who become suicidal if someone tells them their clothes are ugly?  Do we want to raise a generation of kids who are heading for jail for saying so? 

More disturbing than the article itself are the comments, where it is clearly reflected, in a newspaper whose readership is not known for its liberal bias, that there is no teacup too delicate to be protected from bullying.  It’s Reefer Madness applied to bullying, that this otherwise innocuous conduct is the gateway to Columbine.

Just as fears of child sex molestation led to the creation, and abuse, of sex offender registries and the inclusion of public urination as an offense that so taints a person as to make them a public pariah forever, our fears of bullying are turning every act short of blowing a kiss into a zero tolerance offense.  Heck, even blowing a kiss is likely to get a kid in trouble for sexual harassment.

There must be a viable way to distinguish what constitutes bullying and what comprises ordinary childhood goofing around.  Crafting this world of offense surrounding our children’s every action helps no one, neither the purported bully nor victim, so mature into a reasonably normal, healthy person.  There must be a way to distinguish conduct that warrants intervention, mandates punishment, and comprises a true threat, without sweeping every prank ever pulled by a child into the pile.

So if you happen to see me walking about and put a “kick me, please” post-it on my back, I won’t rat you out to the principal.  I may, however, kick back.  Just as I’ve taught my kids to do.

I would give a H/T for this post to Jonathan Turley, but I won’t since he never gives a hat tip to me.

For a brief, bright, shining moment on the top of the hill, there was confrontation.  And now it’s gone.

The 6-2 decision of the Supreme Court in  Michigan v. Bryant is like a big, speeding Mack Truck being driven through the tiny gap left open in Crawford v. Washington, the watershed decision restoring the 6th Amendment’s promise to the accused to be able to confront witnesses against him.  The gap was the word “testimonial,” left undefined at the time with the vague promise of the loophole that swallowed the rule.

Then came Davis v. Washington, a domestic violence case where the Supremes held that the testimonial nature of a statement should be objectively determined, a troubling development in that it allows a court to manufacture its own reality without regard to the nature or purpose of a declarant.  Yet the court in Davis, and its companion case of Hammom v. Indiana, held that statements to police were “inherently testimonial,” except where the declarant was in imminent danger, and the statements were needed to “resolve” the emergency.

And now comes Bryant.  The victim, Anthony Covington, shot in the abdomen, questioned by police at a gas station six blocks away, gives the name and description of the shooter, Richard Perry Bryant.  Covington is taken to the hospital, where he dies about an hour later.

The MIchigan Supreme Court held that the admission of Covington’s statements against Bryant violated the confrontation clause.

The court therefore assessed whether Covington’s statements to the police identifying and describing the shooter and the time and location of the shooting were testimonial hearsay for purposes of the Confrontation Clause. The court concluded that the circumstances “clearly indicate that the ‘primary purpose’ of the questioning was to establish the facts of an event that had already occurred; the ‘primary purpose’ was not to enable police assistance to meet an ongoing emergency.”

The Supreme Court, with the majority opinion written by Justice Sonia Sotomayor, reversed.

The existence of an ongoing emergency is relevant to determining the primary purpose of the interrogation because an emergency focuses the participants on something other than “prov[ing] past events potentially relevant to later criminal prosecution.” Davis, 547 U. S., at 822. Rather, it focuses them on “end[ing] a threatening situation.” Id., at 832.

Because Convington’s shooter had yet to be arrested, the Court concluded that the threatening situation had not come to an end. So what if they were now 6 blocks away. So what if there was a platoon of cops around. So what it there was no indication that Bryant, who shot Covington through a door, had plans to walk the streets shooting up everyone in sight.  It could have been, and under an objective test, any argument that appears plausible, no matter how hard one has to squint, is good enough. 

And then the court said:

Implicit in Davis is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination.

Did you catch that?  The “prospect of fabrication” language?  As in “indicia of reliability,” the justification for ignoring the existence of the confrontation clause in Ohio v. Roberts?  This was rejected in Crawford, where Justice Antonin Scalia wrote that the promise of confrontation in the 6th Amendment could not be judicially wiped away by perceived reliability, and was, by constitutional mandate, subject to the crucible of cross-examination.  It’s back.

Sotomayor explained that the “ongoing emergency” language is a “highly context-dependent inquiry,” meaning that there is no rule, as one might have believed from Davis, but rather a wholly open-ended determination, where ignorance of details serves to expand the authority of police and diminish the rights of the accused.  It’s not limited to the objective purpose of the declarant, but includes the interrogator as well (as if the speaker’s testimonial purpose is somehow controlled or altered by those who hear his statements).

The combined approach also ameliorates problems that could arise from looking solely to one participant. Predominant among these is the problem of mixed motives on the part of both interrogators and declarants. Police officers in our society function as both first responders and criminal investigators. Their dual responsibilities may mean that they act with different motives simultaneously or in quick succession.

Nor are the victims’ purpose necessarily clear:

Victims are also likely to have mixed motives when they make statements to the police. During an ongoing emergency, a victim is most likely to want the threat to her and to other potential victims to end, but that does not necessarily mean that the victim wants or envisions prosecution of the assailant. A victim may want the attacker to be incapacitated temporarily or rehabilitated.

It is thus back to the totality of the circumstances, subject to any argument that can manufacture an explanation that renders a statement non-testimonial without regard to the actual intention of the declarant, as in identifying the shooter so he can be arrested and convicted.  It’s back to the creation of a fantasy that justifies the admission of statements for their truth that are not subject to cross because the courts has wrapped them up in a benign, if wholly false, explanation.  Bye, Crawford.

Justice Ginsburg dissents:

Even if the interrogators’ intent were what counts, I further agree, Covington’s statements would still be testimonial. Ante, at 8. It is most likely that “the officers viewed their encounter with Covington [as] an investigation into a past crime with no ongoing or immediate consequences.” Ante, at 10. Today’s decision, JUSTICE SCALIA rightly notes, “creates an expansive exception to the Confrontation Clause for violent crimes.” Ibid. In so doing, the decision confounds our recent Confrontation Clause jurisprudence, ante, at 12, which made it plain that “[r]eliability tells us nothing about whether a statement is testimonial.”

Nino dissented as well, but he was less kind than Justice Ginsburg.  You can read some excepts from his dissent here, and I suspect you will be hearing about it from numerous others, thus relieving me of the burden.

Just as Crawford sought to slam shut the door that allowed judges to craft and engraft exceptions on the confrontation clause, Bryant cranks up the Mack truck to drive full speed through the testimonial gap, returning us to the days of rhetorical splendor, where prosecutors and judges are empowered to create fantastical scenarios of purpose and goal, seizing upon any piece of the fact pattern that might justify a benign purpose, and reaching the conclusion that some objective primary goal that miraculously removes it from the testimonial category, and therefore allows it to be introduced without being subject to the crucible of cross. 

The rationale of insignificant non-testimonial motives, combined with indicia of reliability, will pervade the decision, until we find ourselves back to the good old days of the most damning evidence spread across the courtroom, yet the accused denied any opportunity to confront.  But what harm could there be, since guilt will be proven reliably.

And tomorrow brings oral argument in Bullcoming v. New Mexico, challenging  the holding of  Melendez-Diaz, that the forensic chemist who actually performed the clearly testimonial tests sought to be used to conclusively prove a critical element of a crime can be replaced by a bobble-head

It was a bright, shining moment for confrontation indeed.  And now it’s gone.

Over the weekend, a new reader emailed me about a recent story that outraged him.  He wanted me to write about it, asking whether it disturbed me as much as him.  It was an absurd story, about an 11-year-old arrested for a stick drawing that suggested some significant anger issues, that occurred a mere 18 miles down the road from Columbine.

But I didn’t write about it.  There was nothing to add, other than the sad fact of its occurrence.  That’s not enough.

The popularity of a blawg is, in part, based upon creating a community of people who find something of value to read.  The easiest way in which the popularity of Simple Justice could be promoted is to sate the desire of those who share my sensibilities.  Feed the crowd what they want.

It’s easy to enough to do, as there is a never-ending supply of stories of injustice.  For those of you who are unaware, Packratt at  Injustice Everywhere does a daily summary.  Just last Friday, he  provides 18 reports of police misconduct, some with videos.  You can get them on a running basis at his National Police Misconduct News Feed.  If you want to feel the outrage, this is the perfect place for you.

It’s not my purpose to harp on the same issue, writing and rewriting the same heart-wrenching words about anger, frustration and outrage.  Over the weekend, Tom Kirkendall at  Houston’s Clear Thinkers  twitted how Norm Pattis’  is “writing the best material in the blogosphere about the injustice of over-inclusive sex offender laws” with this post. Tom’s a smart fellow, so I take his word for it.

Having read the same post in any one of 100 variations, however, there’s nothing new about sex offender registries being over-inclusive and harmful.  I’m happy to hear that Norm is writing about it, but I have no interest in writing about it myself.  There is nothing new to be said and no reason, other than to please the audience, for me to say it again.  If it pleases you to read about it again, Norm is there for you.

I write because I have something to say about a particular issue or situation, not to please or feed anyone’s desire to be outraged.  This is increasingly difficult over time, as posts begin to haunt me.  Haven’t I said this already?  Didn’t I already make this point?  The answer increasingly is not only “yes,” but numerous times.

There’s an interest in discussing issues and situations, but, this being my blawg, my interest is in what I think is a worthwhile discussion.  More often than not, non-lawyers have little to contribute, expressing their overwhelming feelings of anger and frustration with little nuance and less understanding of how it fits within the scheme of things.  You’re filled with hate and anger? Great. Next.

I was informed the other day by  some guy I don’t know on twitter that he disagrees with how I handle comments.  Putting aside the humor in his presumption that his view is relevant, He thinks I’m silly and over the top.  He favors handling thinks differently at Simple Justice.  He has no blog of his own, but writes for HuffPo. He wants to please the crowd, and thinks I should too.  He thinks I should please him.

This morning, there were a few things I considered writing about.  One was an article in the  New York Times magazine about mommy blogger, Heather Armstrong.

Typically, there are 100,000 visitors daily to her site, Dooce.com, where she writes about her kids, her husband, her pets, her treatment for depression and her life as a liberal ex-Mormon living in Utah. As she points out, a sizable number also follow her on Twitter (in the year and a half since she threatened Maytag, she has added a half-million more). She is the only blogger on the latest Forbes list of the Most Influential Women in Media, coming in at No. 26, which is 25 slots behind Oprah, but just one slot behind Tina Brown. Her site brings in an estimated $30,000 to $50,000 a month or more — and that’s not even counting the revenue from her two books, healthy speaking fees and the contracts she signed to promote Verizon and appear on HGTV. She won’t confirm her income (“We’re a privately held company and don’t reveal our financials”). But the sales rep for Federated Media, the agency that sells ads for Dooce, calls Armstrong “one of our most successful bloggers,” then notes a few beats later in our conversation that “our most successful bloggers can gross $1 million.”

Her mommy blog brings in $30 to $50k a month?  Holy crap. What am I doing wrong, I wondered as I read those words.  Dr. SJ said the same thing to me, with even greater emphasis.  Needless to say, no one from HGTV called yesterday to inquire as to my availability.

Many others have parlayed their efforts blogging into a new gig on the internet. Among law bloggers, most have transitioned into social media and marketing for lawyers, or legal technology prophets.  A few have set their sights on coaching lawyers to go solo, usually in conjunction with marketing.  These things interest me only in their reflection of professional and ethical failings.  I’ve got no plans to teach anyone how to blog for profit.  And given what Heather Armstrong is doing, I clearly have no qualifications to do so.

I appreciate people sending me links to interesting stories. It doesn’t mean I’ll have anything to say about them, or that they will end up in a post.  Some people get angry with me for that, letting me know that they think the story is important and that their time in sending it to me has been wasted by my not respecting their effort enough to write about it.  They’re angry that I haven’t served them well.

Maybe the upshot is that my failure to please any crowd is the cohesive aspect of Simple Justice.  Maybe it’s cost me $50,000 a month in advertising revenue and a shot at hosting an HGTV show.  Maybe I won’t be the foremost blawger at much of anything, with a coterie of people I don’t know on twitter criticizing my comment policies.

It’s likely that there will be a substantive story or two that I feel compelled to write about in an hour, but for the moment, the only thing that wants to come out of my keyboard is that I’ve got no plans to please the crowd.  And to those of you who are angered by this, get the hell off my lawn.

As the book itself remains embargoed, my review of Walter Olson’s  Schools for Misrule remains locked away in the safe.  But since University of Illinois Lawprof  Larry Ribstein posted about some of the underlying concepts, I figured it’s fair game to deal with Ribstein, even if Walter will have to wait.

The central theme, as described in the editorial review and Ribstein’s post, is:

Walter describes law schools as essentially the hatcheries of bad ideas that have led to the sort of excessive litigation that Olson has chronicled in his long-running blog, Overlawyered.com.  These include the undue expansion of tort law, class actions, courts running schools, new and potentially open-ended rights, international jurisdiction over U.S.-based legal disputes, the growth of the “new property, and institutional reform litigation.

Ribstein then acknowledges, with no small amount of satisfaction, that Walter gives lawprofs great influence over the state of the law, a conclusion that warms the cockles of lawprofs hearts given that most of the legal profession considers their influence marginal at best.

It’s the combination of great influence, and politically-tinged pedagogy, that Walter sees as the core of the disconnection between what the lawprofs are teaching and the damage they are doing. 

Olson suggests that the source of the problem is law professors’ becoming disconnected from simply teaching existing doctrine and turning to the creation of social policy.  Olson traces this to an influential article, Harold D. Lasswell and Myres S. McDougal, Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale L.J. 203, 206 (1943), which argued that  

if legal education in the contemporary world is adequately to serve the needs of a  free and productive commonwealth, it must be conscious, efficient, and systematic training for policy-making. The proper function of our law schools is, in short, to contribute to the training of policy-makers for the ever more complete achievement of the democratic values that constitute the professed ends of American polity.

Having been a jurisprudence student of Myres McDougal at the end of his teaching career, his thrust was not to push a particular point of view, but rather to implore students to consider, as part of the whole of the law, the policy implications of the law and its interpretations.  In other words, think a bit harder than just what’s good for me at this moment, as one works to develop the law into a force that benefits society.  Still, each of us harbors our own ideas of what policy approach will prove more beneficial.

According to Olson, law schools “predictably churn out certain kinds of bad ideas:” expansion of law with little recognition of costs and limits, laws that increase the demand for lawyers, more power to international and federal lawmakers and less to state and local, positive rights rather than just the right to be left alone, more power to the courts, less to politicians.

Olson’s solution is more science, less advocacy, more emphasis on training in lawyers’ skills.  He concludes that “we neither need nor want more philosopher-monarchs. But we could use more good lawyers.”

This comes dreadfully close to reviewing Walter’s book, but since Ribstein started it, how can it be ignored?  Ribstein’s criticism conflates two independent notions, that training students to become good lawyers in what lawprofs dismissively call the “trade school” approach, is not merely inadequate, but an affront to the loftier goal of creating legal philosophers.  It’s never been my view that the two are in conflict, and students have to pick one of the other. 

Law students should leave school with the skills needed to practice law, or they’ve just wasted a whole lot of money and entered the employment world unequipped to do much beyond cash their paycheck (if they can get one) and screw up people’s lives. Sadly, this doesn’t seem to trouble many lawprofs.

On the other hand, having the capacity to think beyond the rote application of precedent, or the mechanics of statutory construction, enables lawyers to fulfill their responsibility of taking existing law and applying it in an ever-changing environment (think, what would Blackstone say about the internet?) in a way that both serves their clients and provides a societal benefit. Is this a bad thing?

Walter Olson says, well, yeah, it’s a bad thing.  It’s a terrible thing, because the policy concepts lawprofs are feeding these students reflect extreme and biased positions, giving rise to a generation of lawyers (and “legal thinkers”) who buy into the dangerous ideas taught them in school. 

Walter provides a laundry list of examples, mostly from law school clinics, demonstrating that they are inculcating a belief that one side on controversial legal issues is good while the opposition is evil.  For example, a law school clinic will represent tenants in eviction proceedings against landlord, with the clear message that tenants are poor and deserving and landlords are greedy and undeserving.  Should law students be taught to hate landlords?

Ribstein begs off responsibility.

I think it’s important to see law schools as only the supply side of the idea market.  Law professors manufacture ideas, but somebody has to buy.  There would be no problem if our ideas had power just because they were objectively persuasive.  The real problem is that those who control the legal system — lawyers, judges, professors — welcome a particular subset (pro-lawyer, pro-litigation) of the many good and bad ideas law schools manufacture. 

Both ideas have certain flaws. On Walter’s side, the ideas promoted are consistent with the needs filled.  There aren’t too many corporations looking to law school clinics to defend them against class actions, while there are plenty of individuals with worthy but financially trifling issues in need of help.  Open up a pro-corporation clinic and watch the tumbleweeds blow across the room. 

On Ribstein’s side, he gratuitously ignores the influence, both in suasion and grading, that lawprofs have over their eager students.  Students’ minds are empty vessels waiting to be filled, and lawprofs are only to happy to fill them up with their preferred scholarly notions. 

Blaming “those who control the legal system” is a cop out, as there’s a criminal defense lawyer for every prosecutor, a landlord’s lawyer for every tenant’s lawyer.  To paint lawyers as monolithic, pro-lawyer, pro-litigation, is to ignore the constant struggle within the profession to find betters ways to serve.  Clearly, Ribstein needs to stop reading only lawprof blawgs and spend some time with real lawyers to learn what they’re thinking.  We are hardly all litigation-happy, money-grubbing, irresponsible shysters.

Ribstein then contends that it’s Olson, not lawprofs, whose ideas will perpetuate the worst of the legal profession:

We need good ideas, including ideas that challenge the status quo, that are not going to be produced by those immersed in the day-to-day practice of law.  Olson’s solution could help perpetuate an increasingly outmoded system that relies on one-to-one legal advice, costly litigation, and excessively complex legal rules

This goes to Walter’s contention that law students should be taught more to practice law and less to advance “good” causes, which Ribstein contends will only perpetuate an “outmoded” system that promotes litigation and overly complicated rules. 

Ribstein’s point here is well taken, that breaking away from our litigation-loving ways requires more than teaching students how to do what lawyers have traditionally done.  But then, nobody raises factors like the excess of lawyers being churned out by law schools, the absurd expectations created by Biglaw, law schools and mommy as to the financial remuneration these students expect within a week after leaving law school, or lack of balance in the legal academy that gives rise to a viable legal system.

Both Walter and Ribstein operate under the assumption that there are good and evil sides in the law, when the truth is that none of us sits at the right hand of God.  Every case is different, every client is different and every cause is different, requiring us to consider the political propriety of our efforts as sui generis. 

But then, we’re lawyers, and charged with the responsibility of representing our client.  Unlike lawprofs and policy wonks, we only have the luxury of pontificating about our policy favors in our free time, such as when we blawg.  When we put on our lawyer hats, we have a job to do, and our client is always on the right side, even when he’s wrong.  That’s what I was taught in law school.