Legal Fiction Gives Way To Truth in Pennsylvania

When the Innocence Project takes on a cause, its thrust is to test DNA to show that a convicted defendant may not be guilty. It invariably begins with a conflict with the legal fiction that a jury cannot be wrong, having determined that a person is guilty. But DNA has broken down that fake wall, forcing us to realize that juries, hard as they may try, get it wrong and convict the innocent.

When the Innocence Project took on the cause of Anthony Wright in Pennsylvania, however, it had an additional stumbling block to address.

Anthony Wright was convicted of rape and murder in 1993. Soon after the state passed a bill in 2002 allowing people who have been convicted of a crime access to DNA testing to prove their innocence, Wright asked that he be allowed to perform DNA testing on evidence that was found at the crime scene. Former Philadelphia District Attorney Lynne Abraham claimed that Wright wasn’t entitled to testing because he had confessed to the crime. The trial court and a state intermediate court agreed and denied the testing.

It’s one thing to acknowledge that a jury verdict might be wrong. Indeed, verdicts have always been subject to appellate review, whether for the evidence being legally insufficient or the verdict being against the weight of the evidence.

But the preclusive affect of a confession is another matter. The fact of false confessions have presented an extremely problematic issue, particularly where the defense is denied the opportunity to present evidence as to the fact that they happen, how they happen and why they happen, at trial. The jury is left with the confession and nothing to explain how it’s possible that someone might falsely confess to a crime he didn’t commit.

Over and over, jurors (and people) assert that they would never do that. Never. They refuse to believe it’s possible, and certainly have no reason to believe that a defendant, who has a clear interest in denying his guilt, is telling the truth when he states that his confession was a lie.

The Pennsylvania Supreme Court, however, held (majority opinion, concurrence, concurrence and dissent) that a confession does not preclude post-conviction DNA testing:

In its decision this week, the Pennsylvania Supreme Court overruled the lower courts and expressly disavowed an earlier intermediate appeals court ruling that was relied upon to deny the testing. The court acknowledges that the legislature passed the DNA testing law in response to a number of DNA exonerations, including one in which the person cleared by DNA evidence had confessed to the crime. The court notes that the fact that a confession has been deemed voluntary and admissible at trial does not mean that it is true and says, “We need not be reminded of the countless situations where persons confess to crimes of which they are innocent, either out of desire to cover up for the guilty person or because of a psychological urge to do so.”

The walls are breaking down around some of the most pernicious legal fictions that protect the prosecution’s “airtight” case from attack. The problem, however, is that they merely give way to the right to test DNA, the beloved scientific method of proving “actual innocence.”

This means that the vast majority of cases, where there is no DNA or DNA plays no role in the proof, remain subject to all the same frailties of proof, false confessions, improper identifications, but elude a mechanism to save the innocent defendant from conviction. If there are “countless situations” where innocent defendants are convicted, then there are countless innocent defendants convicted in non-DNA cases as well.

What remains unacknowledged is that our methodology of trying cases is remarkably imprecise, even though we embrace its infallibility in order to pat ourselves on the back for a grand legal system. Witnesses lie. Witnesses make mistakes. Jurors may try very hard to do the right thing, but making sense of testimony, and applying the court’s charge, is extremely difficult. Nobody to this day knows what beyond a reasonable doubt means, or can convey it in a manner that’s comprehensible. It’s a mess.

The recognition by the Pennsylvania Supreme Court that false confessions do, in fact, happen, and that a confession does not preclude a defendant from obtaining post-conviction DNA testing, it has taken a significant step forward in conceding that jury verdicts are not sacrosanct, that we accept them as a matter of legal necessity, but not because they are true.

We still need to have this recognition trickle down to the trial courts, to open the door to testimony about the limits of memory, junk science, suggestive identifications and false confessions, where now the heavy handed application of relevance and materiality prevents a defendant from offering a jury the ability to break away from their commonly held mistaken beliefs that lead to wrongful convictions.

How great would it be to be able to prevent the wrongful conviction of the innocent at the trial level rather than wait decades for DNA to exonerate them? How great would it be if we could begin to give the wrongfully accused a chance to defend themselves even when there’s no DNA involved?

We’re still a long way off from widespread judicial recognition of the flaws of beloved trial evidence and the absolute conclusiveness of a jury verdict, but decisions like this bring us closer to the day when it will trickle down to a trial and be available for use before the jury mistakenly convicts.

Julian Heicklen and A Point Lost

It’s been about a month since I received the email from John Kindley. John and I are not on the same political page, and have had some disagreements as a result. But he knew a guy who needed help.

Critical Aside: When someone needs a hand, put aside whatever other differences you may have and do what you can to help. We may argue and disagree in the blawgosphere, but what we do in real life affects real people. It trumps whatever petty disagreements we have online.

Kindley wrote to me about the “nutty professor,” Julian Heicklen, who he came to know via his anarchist connections. Heicklen needed help in my backyard, and Kindly asked whether I would be willing to do so. His case and situation were clearly interesting, so I agreed to speak to him. I awaited the call, which Kindly informed me was coming. It didn’t come. I waited. Then Heicklen’s story appeared in the New York Times and people all over the blawgosphere are putting in their two cents.

This is what it’s all about .

There’s no doubt as to Heicklen’s sincerity about the significant of jury nullification, even if there’s a question as to the merit of his cause. While few here would argue against the notion of jury nullification, the comments to Eugene Volokh’s post offer a broad array of positions, showing that others disagree. Some strongly.

Someone in the United States Attorney’s Office decided that Heicklen wasn’t getting the message that his political expression was unappreciated, and decided to arrest him for jury tampering, 18 USC §1504.

Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.

Because the potential sentence is only six months, it’s a bench trial. The indictment was wheeled to Judge Kimba Wood. The AUSA is Rebecca Mermelstein. This 78 year old, former Penn State chemistry professor, is defending himself. An anecdote from the NYT story is illustrative.

“Mr. Heicklen?” the magistrate judge, Ronald L. Ellis, asked. “Mr. Heicklen? Is Mr. Heicklen awake?”

“I believe he is, your honor,” a prosecutor, Rebecca Mermelstein, said. “I think he’s choosing not to respond but is certainly capable of doing so.”

There was, in fact, nothing wrong with Mr. Heicklen, 78, who eventually opened his eyes and told the judge, “I’m exercising my Fifth Amendment right to remain silent.”

He certainly has the right to remain silent. He certainly has the right to represent himself. They do not work well together. This is shaping up as a war of wills, and there appears little doubt that Julian Heicklen is a strong willed man. But he’s in a room of strong-willed people, none of whom is likely to blink.

My guess is that Preet Bharara, the United States Attorney for the Southern District of New York, decided it was time to teach Heicklen a lesson about what happens outside his courthouse, under the assumption that he would come to his senses with a bit of counsel, make appropriate apologies and be on his way with some supervision. My guess is that Preet didn’t see the video. Or Preet wasn’t told that Heicklen smoked marijuana publicly for the purpose of getting arrested to protest the law, even though he wouldn’t smoke pot otherwise.

Now they have a problem on their hands, as Julian Heicklen is totally willing to martyr himself for the cause, and nobody over there, not Mermelstein, not Bharara and certainly not Judge Wood, wants to be the one to put a torch to his bonfire. And nobody is going to back down.

I’m sure Preet assumed that the old professor would come to his senses, or have a lawyer who would persuade him to do so, seriously underestimating the strength of his beliefs and his dedication to his cause. It doesn’t appear likely to happen, and all will find themselves backed into a corner.

There are spectacular issues arising from this case, both on the free speech side as well as the jury tampering side. The problem is that Heicklen, in his zeal to remain true to his political beliefs, will be unable to let go of some minor battles (such as the right to remain silent) to focus on the war. And even if he does, whether he will be capable of fighting the war, addressing the right to express his views on jury nullification, adequately.

Ultimately, a huge issue may be at stake and yet never receive the attention it deserves. Too many causes may muddle the message. Too much politics may obscure the excellent arguments. Too much hubris may force everyone in the courtroom to hold firm in their position to avoid the embarrassment of backing down and appearing weak or less than true to a belief.

And Julian Heicklen is going to be the one to lose the war. While he may not mind being a martyr to the cause, he will be sacrificing himself for nothing. His point would be far better made by deciding not to fight battles on all fronts, but rather to focus on the big issue and deal with it properly.

Julian Heicklen can, and should, win this case. Preet Bharara, by now, realizes that he made a tactical error, but he’s stuck with an indictment. Judge Wood can’t be happy about what’s coming before her, and how she’s supposed to deal with a defendant who presents a controversial and troubling issue, but won’t or can’t defend himself.

Regardless of whether you, or the courts, accept jury nullification as a legitimate legal position, and regardless of whether you, or the courts, believe that it conflicts with the court’s instructions to follow the law as charged, it remains unquestionably a legitimate political expression, protected by the First Amendment. More to the point of the specific charge, jury tampering relates not to general speech, but to the exertion of improper influence in a particular case. That’s not what happened here at all.

There have been many times over the past month that I’ve wanted to write about Julian Heicklen, but I couldn’t given that I was awaiting his call. Now that his story is out, my silence no longer matters. It’s now about the battle of one man, a true believer, against a system determined to shut him up and teach him a lesson. Julian Heicklen should not fight this battle unarmed.

Early Release, State By State

Only a day after John Wesley Hall’s list of linkable Fourth Amendment Supreme Court decisions, Michael O’Hear at PrawfsBlawg provides a state by state list of early release initiatives over the past decade, what he calls the “early-release renaissance.”

Much of the new legislation is designed to encourage and reward inmates for participating in prison-based programming, which seems to reflect a renewed confidence in the capacity of offenders to achieve rehabilitation under the guidance of corrections officials. (The extraordinary growth of drug treatment courts across the country may provide even clearer evidence of this.) Likewise, much of the new legislation is intended to provide release opportunities for inmates who suffer from terminal illnesses or who have otherwise become seriously physically disabled.

Such legislation seems to reflect a turn away from the indiscriminate approach to incapacitation that prevailed in the 1990s. Finally, much of the legislation is intended to provide enhanced release opportunities for nonviolent drug offenders, which may indicate a weakening of the close association between drug crime and violent crime that seemed to develop in the public’s imagination during the crack epidemic in the 1980s.

While I suspect it’s far less a demonstration of the public’s acceptance of the concept of rehabilitation as a means of the correctional system ridding itself of the excesses of tough-on-crime legislation, we’ll take it any way it comes.

Here is the list, broken down by state, with footnotes, because O’Hear is a lawprof and it just wouldn’t be cool without footnotes.

The Houston Yawn

It’s hardly clear that the Houston police are any more brutal or abusive than any other police department, but the video of Chad Holley being used as a kicking bag is the sort of thing to galvanize interest. A smart politician will make a grand gesture after being outed as the facilitator or concealer of misconduct, and so the Houston City Council held a hearing. There’s no better way to clear the air than to allow the malcontents to vent.

Paul Kennedy was unable to attend the hearing, but provided the forum for former Harris County Criminal Lawyers Association president, Robert Fickman, to tell the story.

I attended today’s City Council Meeting along with my officemate Vivian King. Altogether I am sorry to report that the meeting left me largely disappointed. However, my resolve to fight police brutality has never been stronger.

First, I had called upon our fellow members of the Harris County Criminal Lawyers Association to attend. I thought that some of our 500 plus members would want to join us in speaking out against police brutality.

I was mistaken. Vivian and I were the only two members of the Defense Bar there.

Well that’s not a great start, but not necessarily because it reflects a lack of concern by defense lawyers. Many, like Paul, are likely to have been in court, standing beside people who needed them more at the moment. Others were sure that plenty of people would appear, relieving them of any personal responsibility to be there. And still others decided not to waste their time because, well, it was obvious that this was nothing more than a show where local politicos could pretend to care.

Unfortunately, with few exceptions mostly what we heard from Council was semi- patronizing lip service and statements about how they had done all they could do. Council Members Bradford and Jones seemed to be the only two on Council who were in touch with the community outrage. Curiously Councilwoman Wanda Adams spent much of the meeting, posturing on her desk phone.

Fickman spoke out, blaming the Harris County District Attorneys office for their failure to prosecute bad cops.

I pointed out that except for rare occasion the District Attorney’s Office had failed for three decades to prosecute police brutality. I urged the Mayor to contact the Attorney General of the United States and ask him to form a special task force to investigate and prosecute police brutality in Houston.

The City Attorney responded by saying that they had already contact the Department of Justice about the Holley case and were awaiting a response. Fickman was unimpressed.

I think they missed my point. I was not speaking about the Holley case. I was speaking about all police brutality cases in Houston. Having pointed out the historic failings of the DA’s Office on these cases, I was calling on the Mayor to call on the feds to form a task force to handle all police brutality cases in Houston.

Paul Kennedy then wonders whether there is a solution to the problem.

A civilian review board sounds nice – but in reality, do they really do any good? The boards tend to be made up of politically-connected folks who don’t really want to go out on a limb. Even if you give the board subpoena power, what would you accomplish? Would the board be tasked with seeking out the truth – and forgoing criminal prosecution? Would the board’s job be to uncover evidence and turn it over the the DA’s office? Would members of the board have any idea what they were doing?

Scott Henson echoes these sentiments at Grits for Breakfast.

In all the years I’ve worked on the issue, I’ve never seen nor heard of a civilian review board, anywhere, that worked as advertised, effected meaningful change or satisfied those that advocated for it. Ditto for “police monitors” like in Austin. I’ve come to believe they’re largely a waste of time and divert activists, media, officialdom and public attention generally from issues where focused attention might produce more meaningful reform.

What’s happening in Houston, as a result of the Holley video, is a microcosm of the larger issue that exists wherever there are police, both in terms of the problem as well as the solution, or lack thereof. Civilian Review Boards, once the silver bullet for police misconduct, has not only proven to be a miserable failure as a check on police abuse, but has come to be at best a diversion and at worst an apologist for the problem. The concept may have been fine, and is easily lauded by those with an interest in sloughing off responsibility as tangible proof that the problem is being dealt with, but the execution has been an abject failure.

Fickman’s solution, putting it into the hands of the Department of Justice, shares many of the same problems that local prosecutors have, with both a large degree of camaraderie and tacit understanding that some eggs have to be broken to make an omelet, plus that the DOJ, even if it was inclined to get into the business of policing police, lacks the personnel and facilities to do so. And then, given the issues that the DOJ has in keeping its own agents clean, why anyone would think it would do a better job with cops on the street remains inexplicable.

As Radley Balko relishes pointing out, every time the cops engage in some undeniable misconduct, it’s put into the “isolated incident” basket and dismissed. But the parade of horribles continues unabated, and the number of videos on Youtube continues to grow. This is hardly a Houston, or a Texas, phenomenon, though Harris County is the locus of one of the more recent, and most flagrant, examples.

The answer to the problem, at least from a long-term perspective, is that we won’t rid ourselves of police abuse and misconduct until there is a fundamental change in police culture, where cops won’t tolerate other cops harming people for kicks.

Consider what might have been, had a precinct full of New York City police officers not turned their heads away when Justin Volpe held up the trophy plunger he had just used to rape Abner Louima. There’s not a cop I know who wasn’t disgusted by what happened, yet none have been able to adequately explain how no cop in the precinct took action, either before, during or after.

Until then, should such a cultural revolution occur, people will seek silver bullet solutions to police misconduct. It’s not like anyone involved in the criminal justice system doesn’t know it exists, and it’s likely that many, perhaps even most, want to see it end, but the current incentives make it impossible. Prosecutors rely on cops, and can’t become their enemy by challenging ordinary abuse and expect cops to take it in stride. External solutions, like Civilian Review Boards, federal oversight, impotent or ignorant monitors, don’t work, and worst yet, create an easy whipping boy for future failures and divert attention from finding a better answer.

All of this serves to make us forget who is responsible for police abuse. It’s cops. It’s cops who shouldn’t be cops. It’s cops who get off on hurting others. It’s cops who can’t bring themselves to stand up to fellow cops who hurt others. It’s cops in Houston. It’s cops in New York. It’s cops.

Like Fickman, we talk to mayors and city councilfolks. We talk to prosecutors and government officials. We talk until we get tired of talking and decide to spend our time more fruitfully. None of our talk gets us very far, perhaps because we’re talking to the wrong people.

Ask a cop when the last time he stopped a fellow cop from hitting or kicking someone. Ask a cop when the last time he stopped a fellow cop from lying about someone to frame the guilty. The rest may be an exercise in futility, which would explain why the criminal defense lawyers in Houston, in reaction to the Holley video, simply yawned.

Links to SCOTUS 4th Amendment Decisions

John Wesley Hall has provided a compilation of everything anyone could want, and most importantly links, to 4th Amendment decisions of the Supreme Court of the United States. This is one huge undertaking, and provides an incredible resource.

Fourth Amendment cases, citation, and links

H/T Orin Kerr : “sweet”. Sweet, indeed. I offer my appreciation as well for the hard work of putting this together.

But Twit What You Really Think

Poor Norman Cox. As a 6News reporter, he must have been awfully proud that his son was an Indiana Deputy Attorney General. As the Statehouse reporter, and Emmy winner for revealing official misconduct when a state auditor running for office failed to file papers on time, he understood better than most what it meant to hold such an critical position.

And then came twitter. Oh boy. Via Mother Jones :

On Saturday night, when Mother Jones staffers tweeted a report that riot police might soon sweep demonstrators out of the Wisconsin capitol building—something that didn’t end up happening—one Twitter user sent out a chilling public response : “Use live ammunition.”

From my own Twitter account, I confronted the user, JCCentCom. He tweeted back that the demonstrators were “political enemies” and “thugs” who were “physically threatening legally elected officials.” In response to such behavior, he said, “You’re damned right I advocate deadly force.” He later called me a “typical leftist,” adding, “liberals hate police.”

Only later did we realize that JCCentCom was a deputy attorney general for the state of Indiana…

Yes, the twit turned out to be Norman’s baby boy, Jeff Cox. Deputy Attorney General Jeff Cox. Now former Deputy Attorney General Jeff Cox. From 6News :

The Indiana Attorney General’s Office said Wednesday morning that Cox’s comments were under review. A later statement said Cox was “no longer employed by this agency.”

“Civility and courtesy toward all members of the public are very important to the Indiana Attorney General’s Office,” the statement read. “We respect individuals’ First Amendment right to express their personal views on private online forums, but as public servants, we are held by the public to a higher standard, and we should strive for civility.”

It’s not entirely clear that Cox was less than civil in expressing his belief that protesters should be shot down in the streets. It’s not like he used an epithet in adding “use live ammunition” to his twit. And according to Cox, he was just funnin’ with his tweeples.

Cox told 6News’ Joanna Massee on Wednesday that his Twitter comments were intended to be satirical.
“I think this whole situation is a bit ridiculous. Public employees don’t lose their own First Amendment rights, especially on their own time and own resources by virtue of their public employment,” he said. “I think we’re getting down a slippery slope here in terms of silencing people who disagree.”

Cox may have a point, particularly since his expressions were offered on twitter under his really cool twitter name, @JCCentCom. I’m not sure what the name is supposed to mean, but I’m sure it’s insightful. It’s possible that he was being satirical, as so many have come to learn that the medium often serves to confuse the tone of the message. It’s possible that he was being hyperbolic, as so many tend to be when expressing thoughts online where they don’t think it will be traced back to their day jobs.

Then again, the younger Cox may misconstrue the nature of the problem when he raises the slippery slope argument. As a Deputy Attorney General, he is sworn to uphold the law and the Constitution. He is invested with great discretion in legal decision-making. He is entrusted with power and authority. And he thinks the state police should murder people in the streets for disagreeing with his views.

That’s not a civility issue. This is a far deeper problem, whether about anger management or borderline personality disorder. But whatever is seething below the surface came out in his twits. Maybe there is something more to twitter than a new way to waste time?

More to the point is the exercise of judgment that one would demand of a person holding a government position requiring the exercise of sound discretion. There’s nothing wrong with thinking that lefties are political pariahs, wrong in every way possible. Sure, it’s silly to hold such a sweeping position, but people are allowed to be silly.

Advocating the use of deadly force against them, however, is a very different matter. If such things were twitted by other folks, they might be considered a “terrorist threat.” Indeed, they might expect a knock on the door and a nice chat with men with shields. But I bet Cox had a shield of his own, something shiny to pull out if he gets stopped speeding on his way home to twit about his political views.

The problem here isn’t that Jeff Cox holds some very conservative political views, but that he openly advocated the murder of demonstrators by riot police because of his views. And he happens to be a Deputy Attorney General.

And his First Amendment epiphany would come off as more sincere if it didn’t follow so closely upon his advocating the murder of demonstrators for exercising their right to free expression.

H/T Ed. at Blawg Review and Radley Balko

The Promise of Marketing Lost

He followed the rules to the letter. After all, it was the internet, whose only purpose is to create the fictional impression of a lawyer and firm to which clients would race for their legal needs. The other set of rules, the ones that apply to the behavior of lawyers and their relationship to deception, don’t apply. All the marketers say so, and they would know.

From the Legal Profession Blog :

The attorney had, among other things, advertised his practice as himself “& Associates” when in fact he had a solo practice. He also had a video linked to his web page in which a non-attorney was presented as a member of the firm. The web page listed non-existent firm practice groups, and falsely indicated that he had three office locations and decades of experience.

The attorney was left unnamed in the post, but the ABA Journal prominently identified the lawyer: Jason Matthew Head of Virginia Beach. His name wasn’t hard to find, as it appeared at the top of the order suspending him from practice.

Of course, it wasn’t all about his deception online, as he blew his representation of a client which gave rise to the bar complaint. But then, one need not worry about legal competence when, with a few bold keystrokes, one can appear to be the most competent lawyer ever on the internet.

Jason Head was admitted to practice in 2001. It appears that he opened his office as a solo in 2002. Perhaps he soon came to the realization that the stories of great wealth and success as solo practitioner, propagated by its advocates who deliberately shield their eyes from reality, were exaggerated. Perhaps he found that clients didn’t flock to him and the phone sat silently. He had to do something.

Almost every twist in Jason Head’s marketing scheme comes from the marketer’s playbook. Be more than you are, from size to skill to experience. Say whatever will make people give you money. Forget that we’re lawyers, as the old rules were made by mean old men who don’t understand the internet.

On the internet, we can be anything we want to be. Reality doesn’t matter any more. We are what Google says we are, and Google will say we’re whatever we want to be.

Granted, the lords of the Virginia bar didn’t come to notice Jason Head because he was deceptive on his website, but rather because he blew a house closing and bounced some escrow checks. Only after these hard violations did they happen to realize that he fabricated a world that didn’t exist, that he lied to the potential consumers of his legal services to make him appear more than he was.

So what if he was shameless in his self-promotion? That’s what’s needed in today’s marketing world, where some kid lawyer claims to have decades of experience, a flock of associates and practice areas that rival the largest white shoe firm. Shame is a passé concept. Rather than be ashamed, we’re so very proud of amassing a marketing machine that makes us special online.

But all is not lost for Jason and the marketers. The Virginia Beach Circuit Court suspended Head for 30 days. That’s what the locals call an extended vacation.

Maybe shame is passé for those who are entrusted with preventing lawyers from deceiving people on the internet as well. A thirty day suspension sends a tepid message to those lawyers who would flawg themselves across the internet, given the unlikelihood that anyone will ever notice their marketing lies. Maybe the age of marketers is not only upon us, but here to stay with the blessing of the court.

The Wisconsin Syndrome

The beef aside, public employees in Wisconsin (as elsewhere) are not allowed to strike. That means that all those protesting around the capital rotunda are AWOL, unless they happen to be sufficiently ill to take a sick day. And so they are, as shown in a slew of videos embedded in an Atlantic post by Ford Vox.

No doubt many members of the University of Wisconsin’s Department of Family Medicine share the teachers’ concerns. Public employees are joining a struggle already familiar to most patients. Family doctors work the front lines advocating for our interests amidst a disintegrating health care system, summoning the will to keep battling with insurers and administrators all while trying to hold on to their belief that they can change human behavior. Family doctors feel your pain and have the battle scars to prove it.

But last week some of these weary warriors carried their patient advocacy too far. In videos breathlessly presented throughout the conservative mediasphere this weekend, doctor after doctor is videotaped writing patently fraudulent sick notes so that the protesting teachers (whose contracts specify that missing work without an excuse can result in dismissal) can keep marching on against the state’s union-busting Republican government.

This raises the question of ethics; whether it’s acceptable for physicians to lie for the greater good. While Vox appears to side against the “union-busting Republican government,” he didn’t find it all that easy to put aside bioethics whenever it was convenient.

[The note writing doctors have] managed to belittle a public trust between physicians, employers and patients. A doctor’s sick note is a serious document. It represents an employer’s desire to verify through a respected, independent, medically qualified third party the fact of an illness and the true need for convalescence. In the videos now circulating online, we witness multiple members of a noted family medicine department trash one of the well-recognized rights and privileges of their profession, with little forethought as to the consequences.

The question remains whether this is just a “white lie” type of ethical breach, one that would garner the doc a wrist-slap at worst and, given the bigger stakes at issue and the inability of teachers to demonstrate on their own behalf but for a get-out-of-school free card, politically justifiable?

The answer likely falls along the spectrum of where one values the relative importance of honesty and political belief. The more strongly one supports the teachers and other public employees, the less concerned one is that physicians are complicit in a scam to cover their disappearance from the classroom. The end justifies the means.

The problem, of course, is that whenever integrity is weighed on a relativity scale, it ceases to be integrity. As criminal defense lawyers, we confront his issue all the time, with clients and witnesses who want to give false testimony in order to beat the rap. Our ethical obligation is clear, that we can neither present nor permit a witness to knowingly lie on the witness stand.

Before some wag argues the obvious, that prosecutors do this all the time, allowing cops to testily in order to make sure the bad guy gets convicted, this isn’t intended as an opportunity to whip out our cynical cries of cheater. No doubt there are some who do this, though my experience suggests that most of the time the cops lie to prosecutors as well, having too little trust in the righteous boys and girls to let them in on their dirty little secret. Either way, the fact that there might be unethical prosecutors doesn’t excuse anyone else’s ethical lapse.

Our duty doesn’t change whether we believe our client to be innocent or guilty. Our ethical obligations aren’t that flexible, allowing us to mold them to fit whatever we believe to be the “just” outcome. It’s a terrible moral dilemma, particularly when we clearly believe another witness to be lying through his teeth and see the potential for an off-setting lie to do the trick. Still, it’s unethical. Still, we can’t do it.

The Wisconsin physicians writing fake notes rationalize their conduct.

When they did stay on it message, it wasn’t much to behold. One of the unidentified young physicians tells an inquisitive local libertarian organization called the MacIver Institute, “We are here writing doctor’s notes to support our public employees who have been mentally anguished and distressed this last week and needed to be out here for their mental health.” Medically speaking, that’s comedy.

Elsewhere in the tape UW faculty member Dr. James Shropshire signs a fake sick note for the MacIver videographer, who tells him he’s from California and isn’t tolerating the cold Wisconsin weather so well. Dr. Shropshire responds flatly, “So I’m concerned about that. I’d like you to take the rest of the day off today, get some rest, and try to stay healthy,” and signs his excuse note.

There’s little doubt that they believed in their cause, the righteousness of providing a note for the teachers, and manufacturing strained justifications to give it the appearance of pseudo-justification. It’s equally clear that the rationalizations are nonsensical, a sham to excuse what they are doing.

Vox contends that this conduct will cause “lasting damage [by] tarnishing medicine’s public image.” I’m not entirely sure he’s right, given that much of the public sees little problem with what’s perceived to be “white lies,” harmless falsehood justified by serving a greater good. To many, as long as the physicians believed in the cause and the cause was, at least arguably, worthy, this fake notes are trivial.

However, the damage this does internally to a profession is not so easily dismissed. Regardless of how the public perceives it, the breach of the bright ethical line opens the door to a future of facile ethical lapses whenever a doctor believes his cause is proper and, on balance, it serves a greater good,. The problem, of course, is that once the constraints of ethics no longer apply, then anything goes. Each of us is free to decide for ourselves when we can toss ethics out the window, and still feel good about it.

There may well be life and death situations where we are prepared to put ethics aside because the harm done could be irreparable. And should that happen, we should be prepared to face the consequences of our lapse, realizing that there is a price that must be paid for our choice. But this was hardly so extreme a situation that it justifies physicians indulging their politics and flagrantly ignoring their ethical obligations.

And once a person gives up his integrity, it’s gone. Even physicians in Wisconsin.

H/T Jonathan Adler at Volokh Conspiracy

Shield Law Must Yield

The case against Angelo Diaz was built on who said what, like so many others. But the answer to the question depended on what a Daily News reporter heard. And more importantly, from whom. This gives rise to the dreaded conflict of rights, pitting the freedom of the press, and more particularly the media’s ability to protect confidential sources, against the right of the accused to defend himself from false accusations.

From the First Amendment Center :

In the case, Angelo Diaz is charged with attempted second-degree murder. According to prosecutors, Diaz shouted “shoot the cop” while Angel Rivera and a police officer fought for control of a gun. In its story about the incident, however, the Daily News quoted “authorities” as saying that the person who yelled “shoot the cop” was Rivera’s mother, not Diaz.

There is little question, had it been the prosecution seeking to compel disclosure of the identity of the person who spoke the words reported by the Daily News, that disclosure of a confidential source was precluded by law. But this was the defendant seeking disclosure, and thus different interests were at stake. While the prosecution has no authority sufficient to trump the journalist shield law, Diaz had a constitutional right to defend himself, and the right to obtain the evidence needed to do so.

The case was before Supreme Court Justice Mark Dwyer, former chief of appeals in the Manhattan district attorney’s office, whose decision threaded the needle between the First Amendment interests of protecting confidential sources and the defendant’s need to be able to defend.

A defendant’s Sixth Amendment rights to confront witnesses and present a defense are generally subject to rules of privilege and to other evidentiary restrictions. A defendant generally could not, for example, insist on presenting testimony about a co-defendant’s privileged communications with that co-defendant’s attorney. Nor could he expect to elicit declarations in violation of the rules against hearsay. But under some extreme circumstances, rules of evidence must be subordinated to a defendant’s due process right to a fair trial.

The rule may be stated this way: where a criminal defendant seeks press information that (1) is highly material, (2) is critical to the defendant’s claim, and (3) is not otherwise available, then the press privilege must give way in the face of the Sixth Amendment. And that is true even if the information is confidential.

Justice Dwyer carefully fashioned as limited relief as possible to both ascertain that the defendant was able to obtain disclosure of the identity of the Daily News source while protecting the source from disclosure beyond what was absolutely necessary.

Finally, the court’s relief will be narrow. Counsel for the Daily News need disclose to the court, in camera, only whether the confidential source is one of the two officers present at the crime scene and, if so, which of the two he is. The court will in turn disclose that information only if the source testifies, and denies that he made the statement published in the Daily News. Of course, if the named source denies making the statement, an appropriate witness from the Daily News will be obliged to testify on the defense case.

Notably, Diaz’s defense counsel, Laurie Dick of Brooklyn Legal Aid, did a surgical job in her application for the identity of the source. seeking only the identity of the source if it turns out to be one of the two police officers present at the time the alleged crime occurred. It appears, from the decision, that by doing so, the critical focus of the application on a witness whose testimony would necessarily contradict the prosecution’s trial witness facilitated the court’s decision to breach the press shield law.

Before deciding, Justice Dwyer gave the Daily News the opportunity to moot the issue, in light of the limited nature of the defendant’s request, and thus avoid reaching a decision that need not have been reached.

The court offered the Daily News an opportunity to end this litigation by stating that the source of the report was not one of the two officers present at the time of the incident. The Daily News declined to accept the invitation, but in doing so did not indicate anything about who the source might be.

Thus, the scene was set and the clash of rights was unavoidable.

It’s never pleasant when constitutional rights clash, particularly when they are both dear causes and worthy, in themselves, of the utmost protection. But when it happens, something has to give. This case presented such a situation, and Justice Dwyer concluded that the defendant’s right to defend himself trumped the media’s right to protect its confidential sources.

On balance, it was not only the correct decision, but it was a decision handled in precisely the right way, inflicting as little damage on either right as possible in resolving the inherent conflict.

As it turns out, the Daily News apparently agrees, and has decided not to appeal the decision. From the Reporters Committee For Freedom of the Press :

The Daily News has chosen not to appeal Justice Dwyer’s order because we think the decision was narrowly confined to the unique facts of the case: the accomplice liability charge against the criminal defendant rests solely on the arresting officers’ word that it was Diaz who shouted ‘shoot the cop, shoot the cop,'” Anne B. Carroll, vice president and deputy general council for the Daily News, said via email.
“Rather than risk a New York appellate decision that might sweep more broadly than the facts in Diaz warrant, we complied with Justice Dwyer’s narrow order to reveal to him in camera only whether our source was one of the arresting officers,” she added.

Given the sensitivity with which Justice Dwyer handled the disclosure, there’s little doubt that the Daily News wasn’t going to get a more circumspect decision at the Appellate Division, and may well have fared worse.

As important as the freedom of the press is, and its ability to protect the identify of confidential sources, in its ability to present truthful and accurate information to the public, the right of an accused to defend himself must be paramount. Justice Mark Dwyer nailed this one.

Revolution Spreads to Miami

Via Jeff Gamso, while oppressed people in the middle east risk their lives for freedom, law students at the University of Miami Law School join the fight for their rights. They don’t risk physical harm in their quest for freedom, but merely humiliation for demanding their own Bill of Rights.

The Chi-Chi Guevera behind this act of insurrection, Megan somebody (she mumbles) who informs that she’s “not a politician,” as if someone might be confused, explains:

Despite her year and a half in law school, Megan somebody says that “she’s yet to be satisfied with her legal education.” I was heartened to hear that, since her satisfaction is important to me and lawyers everywhere. Go Megan somebody!

Unfortunately, her “frustration” wasn’t that shared by the legal profession relating to the quality of education and its relevance to the practice of law. Rather, it was the lack of control by law students, left to the “whims” of professors “because the system doesn’t provide law students with resources in which to keep professor behavior in check.”

Poor Megan somebody isn’t going to be happy when she learns that she’s not going to be able to keep judge’s behavior in check either. To the extent there’s any point to a legal education, at least she’s learning that frustration at being subject to the whims of others is part of the job.

Here are her demands:

They’re a bit hard to read, as Megan somebody chose to use some cute font to make it appear handwritten, like that other Bill of Rights. Needless to say, they fall somewhat shorter on the lofty goals scale. Don’t strain your eyes trying to figure out what Megan is fighting for. It’s not worth the effort.

On the one hand, I admire any law student willing to make an effort to do, well, anything that doesn’t directly involve getting a job, a car or sex. That said, this effort is slightly misguided. There is a reason why we don’t give law students the “resources” to dictate their education to their professors, or inmates the keys to the asylum.

The gist of the “rights” can be easily summed up: They don’t want to be compelled to learn anything they won’t be tested on, and don’t want to be graded on anything they have been expressly told will be on the test. Fair, right? Just as courts will never expect them to be minimally competent in their chosen area of practice if their professor didn’t cover it in class.

It almost seems disingenuous at this point to invoke the Slackoisie, entitled to the right to dictate their legal education as if becoming a lawyer is their cash-and-carry right, and since they are saddled with their lay-away debt, at least they should be able to demand that it be tied up in a pretty bow.

The bad news for Megan somebody is that neither attending law school, nor entering a profession, comes with the promise that the experience will be fun and sufficiently convenient that students need not reach any further, try any harder, learn any more, than can fit in a blue book. Frustration is very much part of the lesson, as is recognizing that a student has no right to an easy and pain-free grade.

Like Megan, I share concerns about lawprofs’ whims, particularly given that their focus on their scholarly interests often does little to prepare students to practice law. There are demands that I would support, like bringing the theoretical back to earth, and expecting applicability of the lesson to the courtroom rather than a lawprof’s pie-in-the-sky anticipation of what they think the law ought to be. Students don’t attend law school to ponder the majesty of the theoretical, but to learn how to be lawyers.

But as much as I’m troubled by leaving such decisions in the hands of lawprofs, I would much prefer that than putting into the hands of law students, especially students whose primary concern is limiting the scope of their studying to what will get them to happy hour on time.

Megan somebody’s “vote” on the student bill of rights was supposed to come and go last week. What became of this initiative is unclear, and I’ve seen nothing about the outcome. Regardless, it’s not like unanimous approval by the law student body means anything, as the faculty has not, to my knowledge, handed over control to the masses.

That said, it would be wonderful if Megan and her fellow law students took this political zeal and put it to use for a cause of far greater significance. Perhaps the right to wear flip-flops in class. Or do they already have that right?