The trial is over for kids-for-cash judge Mark A. Ciavarella Jr., the former Luzerne County, Pennsylvania Juvenile Court judge who single-handedly harmed more children than any child molester ever could.  And Ciavarella was  just thrilled about the outcome as he walked out of court.

Ciavarella was allowed to remain free pending sentencing after the conviction Friday. And after the verdict, he made rather strident statements to the media outside the courthouse.

“Never took a dime to send a kid anywhere. … Never happened. Never, ever happened. This case was about extortions and kickbacks, not about ‘kids for cash,’” said Ciavarella, who plans to appeal.

The defense declared victory. “We’re amazed. The jury rejected 95 percent of the government’s case.”

“I find it interesting,” U.S. Attorney Peter Smith said in response, “that a man just convicted of racketeering is claiming any sort of a victory out there today. I wonder what he would consider a defeat.”

The actual details are that Ciavarella was convicted of 12 counts, ranging from money laundering to racketeering.  But he was acquitted of 27 other counts.  Missing from all of this are any charges that Ciavarella sent kids to jail who should never have been sent to jail in order to populate his pal’s private juvenile prison.  That exercise of judicial discretion wasn’t on the table, though it resulted in the  reversal of about 6500 convictions by Ciavarella.

Despite the apparent glee of Ciavarella at being able to both walk out of court and proclaim his own brand of victory. it was momentarily dampened by the sound of Sandy Fonzo.

In response to the judge’s being able to walk pending sentencing, Sandy Fonzo, whose son was jailed by Ciavarella — and committed suicide last year at age 23 — screamed obscenities at the judge and even poked him as he and his attorneys held a news conference on the courthouse steps.

“My kid’s not here anymore!” yelled Fonzo. “He’s dead! Because of him! He ruined my f——- life! I’d like him to go to hell and rot there forever!”

Ciavarella glanced at Fonzo, then turned his back.

How dare this shrew ruin his moment in the media sun with her curses.  And what did Ciavarella do to her that was so horrible?

Fonzo’s son, Edward Kenzakowski, was a 17-year-old all-star wrestler with no prior record when he landed in Ciavarella’s courtroom for possession of drug paraphernalia. She said her son never recovered from the months he served at the detention centers and a wilderness camp.

Tears streaming down her face, Fonzo said she couldn’t believe Ciavarella was allowed to walk out of the courthouse.

“There’s no justice, there’s not. He’s never going to get what he deserves,” she said. “I just wanted to see him handcuffed and taken out. But when I saw him just being released with that stupid smirk on his face …”

If ever there was a smirk I would like to wipe off a defendant’s face, this was it.

Having turned down a deal that would have netted him about 10 years, Ciavarella now realistically faces about 13 years, ironically the length of time he sat on a bench and sent children away.  Go figure.  But given that he was allowed to walk out of the courthouse and breath the free air he denied 6500 children, it doesn’t strike me as particularly certain that a downward departure can’t be found somewhere.

While these digital pages are replete with instances of judges who failed to perform well, even adequately, there are no judges who are lower, and worse, and more despicable, that Ciavarella and his co-defendant, Michael T. Conahan.  It’s not enough that they sold their robes, but that they sold children.

There is nothing that I would hope to see happen more than Senior U.S. District Judge Edwin M. Kosik wipe that smirk off Ciavarella’s face, but his allowing him to remain  free on bond pending sentencing is troubling.

Prosecutors asked Senior U.S. District Judge Edwin M. Kosik to immediately place Mr. Ciavarella, who has been free on $1 million unsecured bail for nearly 25 months, in federal custody.

“He’s at risk for flight,” Mr. Houser told the judge. “He faces up to 157 years in prison at this point.”

Defense attorney William Ruzzo argued that Mr. Ciavarella’s strong family ties would ensure that he would not flee and noted that Mr. Ciavarella had obeyed all of the court’s instructions since his arrest.

“This man would rather go on a gurney and be injected rather than leave his family,” Mr. Ruzzo said.

Judge Kosik agreed with the defense.  Perhaps he understood Ruzzo’s argument as a deal in the offing, and took him up on it.

Many of my clients find it difficult to express themselves in writing.  This is true whether they are accused of a street crime or a financial crime.  Even corporate execs find writing to be difficult, much of the time.  I know, I was surprised to learn this too.

Which is all the more reason why I am unbelievably impressed with the clients of Rochester lawyer James Nobles, who has a   on his website that says, well, it all.  While the page is filled with excellent testimonials, this one really caught my eye:

“I am a convicted felon with an extensive criminal history.  I had just been arrested for a felony that could have potentially landed me 6 years in prison.  I had already been through a Public Defender and another paid counsel.  I was beginning to feel hopeless and was exhausting tons of money because no one would listen to me.  Mr. Nobles listened, he really listened to me and he didn’t presume my guilt.  He followed through on my ideas and thoughts and I ended up with no prison time and a little probation.  He communicated with me every step of the way and never made me feel indifferent.  I will continue to use him for any situations and refer him to everyone.”  — ASM

I mean, how many predicate felons can write a testimonial like this?  Not too many, I can tell ya.  Just the phraseology, like “made me feel indifferent,” is remarkable.  They don’t use words like “indifferent” in prison very often.  This must be one smart cookie with an extensive criminal history.

What made me think of Nobles’ exceptional testimonials was a post by law practice coach Allison Shields, who was slumming at that cesspool for the terminally clueless, the Lawyerist, that Kevin O’Keefe twitted about. 

Testimonials are a popular lawyer marketing tool precisely because they have proven to be powerful. If a client does not have a referral from someone they trust, a testimonial is the next best thing. Testimonials carry more weight than other marketing copy because they are the words of a third party, rather than the words of the business (or law firm) themselves; they are a good way for lawyers to demonstrate their value through the words of their clients. Those words can be very persuasive, and they can be an important part of your . (This is a link back to Allison’s own blog.  Slick move, no?)

But what kind of testimonial brings in the big bucks?  Allison again:

Many marketing consultants will tell you to get results based testimonials, and those kinds of testimonials can be helpful, particularly in certain practice areas. However, those testimonials can be difficult or problematic to obtain, in part because clients may not be willing to divulge (even anonymously) the specifics about their case in hard terms, but also because lawyers have to be careful about giving the appearance of guaranteeing clients a specific outcome.

This doesn’t seem to be a problem for James Nobles, who has a whole ‘nother page called “.”  None of that malarkey about past performance being no indicator of future results here, brother. 

So how does a lawyer make sure his client testimonials are most effective?  More from Allison:

Although you may want to guide the client in creating their testimonial by using  questions designed to solicit specific kinds of feedback, the best testimonials are in the client’s voice. In order to be believable, the testimonial must sound like it came from the client, rather than the lawyer. It does not need to be slick, and probably should not be. When the testimonial tells the client’s story in their own voice, there will be no question that it is genuine, even if it is anonymous.

Nothing, but nothing, beat authenticity, which is why I am so incredibly jealous of James Nobles.  I’ve had some smart clients, but never one who could produce so erudite a testimonial as his.

For those of you who, like me, find our clients lacking in the ability to express themselves in writing as well as Nobles’ clients, a word of caution.  Don’t let the green monster get the better of you and try to manufacture client testimonials that say precisely what you think would make for effective internet marketing.  As Allison Shields says, they have to come in the client’s own voice to be effective, and there are very, very few of us, in fact there may not be another lawyer anywhere, whose clients have a magnificent a voice as James Nobles.

Just suck it up and wonder why you didn’t open up shop in beautiful Rochester, where the smart clients are.

As for me, my favorite testimonial is from a guy called “Shark,” who said, “I’m outa here.”

H/T Don Thompson

Every once in a while, a case comes along where so much went wrong, so many bad decisions were made by those involved, that it has a lesson to offer at almost every turn.  The  case of 25 year old Patricia Marilyn Spottedcrow in Oklahoma is such a case.

On Dec. 31, 2009, Spottedcrow and her mother, Delita Starr, 50, sold a “dime bag” of marijuana to a police informant at Starr’s home in Kingfisher, court records state.  Starr handled the transaction and asked her 9-year-old grandson — Spottedcrow’s son — for some dollar bills to make change for the $11 sale.  Two weeks later, the same informant returned and bought $20 of marijuana from Spottedcrow.

The two women were arrested for drug distribution and because Spottedcrow’s children were in the home, an additional charge of possession of a dangerous substance in the presence of a minor was added.  “It just seemed like easy money,” said Spottedcrow, who says she is not a drug user but has smoked marijuana.  “I thought we could get some extra money.  I’ve lost everything because of it.”

At  Just Say Now (via Ed. of Blawg Review) follows the headline of the Oklahoma news story, taking the spin that a $31 of pot bought a 10 year sentence.  The gist is to compare the cost of imprisonment at an average of $16,202 to show how the war on drugs takes its fiscal toll on society.  It’s certainly a valid point, but one that fails, in this case, to tell enough of the story to be helpful.

As the story notes, it wasn’t mere possession of $31 in pot, but sale.  It wasn’t mere sale, but sale that peripherally involved a 9 year old child, who apparently was the cashier for the enterprise. Spottedcrow sold pot because it was easy money, as do many who take risks committing crimes for easy money.  It was a poor choice, but not her last poor choice.

The women were each offered plea deals of two years in prison.  But because neither had prior convictions and the drug amounts were low, they gambled and entered a guilty plea before a judge with no prior sentencing agreement.

A 2 year prison deal for first offenders is steep, so they decided to roll the dice and leave it up to the judge.  Not necessarily a bad option, but one that required them to grasp the nature of what they were doing and make some effort to show their sentencing judge that they would not be back in business the next day.

A presentencing investigative report prepared by the Department of Corrections rated Spottedcrow’s risk of re-offending as “high” and recommended substance abuse treatment while incarcerated.  “It does not appear the defendant is aware that a problem exists or that she needs to make changes in her current behavior.”

Spottedcrow was unemployed and without a stable residence when arrested, the report states.  The family lost their Oklahoma City home for not paying bills.  “When she needed money … this is the avenue she chose rather than finding legitimate employment,” the report states.  “The defendant does not appear remorseful … and she makes justifications for her actions.”

Just as she appears to rationalize her choice of selling pot because it was “easy money,” she showed no recognition that it was a crime.  This puts the judge in a very difficult position.  What’s a judge to do when a woman, one with four children, a first offender, puts her life before the court for committing a relatively low rent crime, but demonstrates no recognition that there’s any problem here?

Former Kingfisher County Judge Susie Pritchett, who retired in December, said the women were conducting “an extensive operation” and included children in the business.  “It was a way of life for them,” Pritchett said.  “Considering these circumstances, I thought it was lenient.  By not putting the grandmother in prison, she is able to help take care of the children.”

“This was a drug sale.  When I look at someone in front of me, I’m thinking, ‘What is it going to take to rehabilitate this person?’  We look at their attitude and other factors.”

It’s a stretch to call a ten year sentence over pot, no matter how bad an attitude and how little grasp of the concept that one doesn’t engage in crime merely because it’s “easy money.”  Ten years is a very long time, and proportionally, it’s a massive sentence for pot.  But to the extent Judge Pritchett might have had regrets over her sentence, Spottedcrow soothed them.

When Spottedcrow was taken to jail after her sentencing, she had marijuana in her jacket. 

It’s unclear how best to characterize her arrogance, to come to court for sentence on a sale of marijuana with pot in her pocket.  Regardless of one’s stance on whether pot should be legal, it was a crime that day, and Spottedcrow was there to be sentenced on it.  Among the many things one shouldn’t do, possess more pot is a biggie.

So $31 in pot resulted in a monumental sentence, for a recidivist no less a first offender, at a staggering cost to the taxpayer.  All true, even though the judge believes she was being lenient.  Leniency, like severity, is subjective, and one finds it along the spectrum of what each of us believes to be reasonable.  As stupid, arrogant and self-serving as Spottedcrow was, it was still pot.

But neither Spottedcrow, nor I, get a vote in the manner in which Judge Susie Pritchett imposes sentence.  To presume, as she did, that she could engage in a crime because it was good for her at the moment, and continue to make choices that were so cavalier is tantamount to begging a judge to whack her as hard as she could.  Spottedcrow had pretty much every objective factor a pot dealer could have weighing in her favor, and yet she exacerbated her situation at every turn.

While a two year, or five year, sentence would likely have been more than sufficient to drive home the point that a person can’t put her own financial benefit ahead of society, or that if you’re going to commit a crime, keep your kid out of it. Or even that one regrets getting caught, if not engaging in the crime itself, as a reason for expressing remorse, it’s not terribly hard to see how Spottedcrow pushed the wrong button at every turn.

Apparently, even a ten year sentence in Oklahoma doesn’t mean ten years, so the headline itself exaggerates the situation somewhat.

In a year, Spottedcrow will have a review and hopes to shorten her time in prison.

“I’m already changed,” she said.  “This is a real eye-opener. I’m going to get out of here, be with my kids and live my life.”

So maybe this is what it took to enlighten Spottecrow?  Or maybe she’s just figured out the right thing to say to get out of prison and back to selling pot. 

H/T Doug Berman

As a rosy-cheeked college frosh, I studied labor history with Professor Roger Keeren.  Keeren, bearded and bespectacled, looked every bit the liberal academic, but it wasn’t until his enthusiasm for the International Workers of the World came across that one realized where his true sympathies lay.  My girlfriend at the time came out of class and announced, “I want to be a Wobbly.”  He was that persuasive.

I wasn’t convinced.  It seemed to me that the concept was flawed over the long haul, as Unions were required to seek perpetually greater benefits for their members or they had no reason to exist.  While they served the needs of workers well in the early days, things had changed over the decades and the imbalance of power wasn’t nearly as imbalanced as it was when Eugene V. Debs ran for president.  Yet Unions showed no interest in shutting their doors, a job well done.

Professor Keeren liked me, I suspect, as he didn’t flunk me for expressing my views.  Needless to say, my position was not embraced.

The problem was both worse, and different, with public sector unions.  While the economic incentives that made private sector unionism theoretically viable, the offsetting clout of strikes and lockouts, meant that both sides had skin in the game, no similar balance could be achieved in the public sphere.

Government exists to serve public needs.  Forget about all the issues surrounding how well it does so, as that doesn’t change the theory.  It can’t tell its unionized employees that if they don’t like their salary and benefits they can go find another government to work for, and then shut the doors.  Yet while public employee strikes are unlawful, they are invariably forgiven as part of the settlement the resolves labor disputes.

Then there’s the political element, which gives public officials an incentive to get along with public employee unions while pretending to talk tough.  They know that the public really can’t live without schools and subways, even though the public hates paying taxes.  The beauty is that the cost of increased public employees salaries and benefits isn’t felt until the next guy is in office, and then he can wash his hands of responsibility blaming his predecessor.

But Governor Scott Walker has drawn a line in the sand, saying that the gravy train has come to an end.  It would be a lot more convincing if he hadn’t exempted friendly unions and targeted unfriendlies, but political purity is hard to find.  In the New York Times, Paul Krugman asserts that Walker’s War isn’t motivated by fiscal conservatism, but a power struggle between the proletariat and the oligarchy.

Why bust the unions? As I said, it has nothing to do with helping Wisconsin deal with its current fiscal crisis. Nor is it likely to help the state’s budget prospects even in the long run: contrary to what you may have heard, public-sector workers in Wisconsin and elsewhere are paid somewhat less than private-sector workers with comparable qualifications, so there’s not much room for further pay squeezes.

So it’s not about the budget; it’s about the power.

Krugman then channels George Orwell, a requirement in such arguments.

In principle, every American citizen has an equal say in our political process. In practice, of course, some of us are more equal than others. Billionaires can field armies of lobbyists; they can finance think tanks that put the desired spin on policy issues; they can funnel cash to politicians with sympathetic views (as the Koch brothers did in the case of Mr. Walker). On paper, we’re a one-person-one-vote nation; in reality, we’re more than a bit of an oligarchy, in which a handful of wealthy people dominate.

Given this reality, it’s important to have institutions that can act as counterweights to the power of big money. And unions are among the most important of these institutions.

Now it’s awfully arrogant of me to do what I’m about to do, given that Krugman won the Nobel Prize and I won, well, nothing of consequence, but I’m constrained to do so anyway.  Here goes: Krugman’s wrong.

Regardless of whether public employees have a statutory right to engage in collective bargaining, they still have the right of association.  They can form interest groups, political action committees, to promote their wants.  Even though Walker seeks to end their statutory right to compel the state to bargain collectively with them, that doesn’t preclude the ability to lock arms, walk as one and express their ideas.

The problem is that they won’t.  The problem is that workers pay union dues because they are forced to do so, and expect a quid pro quo in return.  Eliminate ever-higher salaries and benefits from the mix, and the union hall will have a deafening echo.  It all about the money, just as every teacher negotiation employs rhetoric about teaching children until it settles for a 3% salary increase.

The loss of the union voice, Krugman contends, spells the death of democracy and the surrender to oligarchy.

You don’t have to love unions, you don’t have to believe that their policy positions are always right, to recognize that they’re among the few influential players in our political system representing the interests of middle- and working-class Americans, as opposed to the wealthy. Indeed, if America has become more oligarchic and less democratic over the last 30 years — which it has — that’s to an important extent due to the decline of private-sector unions.

That’s some false and dangerous reasoning.  Neither the oligarchy, nor the unions, speak for “the interest of middle- and working-class Americans.”  Indeed, they are both out to get what they can from us for their own benefit.  When was the last time a Union negotiated over a pension for all Americans who are pensionless?  When was the last time a Union bargained away their dental plan so working-class Americans outside the union sphere could get a raise?

That’s right, the unions talk the good talk, but they walk for the benefit of their own.  And if you aren’t one of them, then they will burn your interests in a flash without the slightest remorse.  That’s how unions continue to exist.

When it comes to undue influence over government, conflicting with our populist notion of one man, one vote, there is nothing less democratic than public sector unionism.  They get to force the government to sit down and bargain with them, enter into a contract and hold them to it, law (that applies to everyone else) be damned.  You try it.  Call the governor and demand that he sit down and bargain with you.

The argument is that public employees have a greater stake, since their salary and benefits are on the line, that entitles them to a louder voice then other citizens and taxpayers.  There’s merit to this argument, that some pigs are more equal than others (see, I can channel Orwell too).

But that doesn’t necessarily translate into giving them the right to compel the government to bargain in good faith with their collective representative.  Without this right, public sector employees can still have their voice, astounding monetary and voting influence by joining together for their mutual benefit and funding the election campaigns of their heroes and promoting their cause.  If, that is, they found common ground aside from how big their next paycheck would be.

And what of the Oligarchs, left to control our thoughts by tossing money at politicians without any countervailing interest group to throw money at the other team?  They may still be enjoying their Citizens United rights to buy government, but there are still more of us than them.  The solution is to rid ourselves of undue influence rather than have two masters rending the fabric of politics apart to our detriment.  The solution is for the public to take responsibility for our democracy rather than expect unions to serve our interest by counterbalancing the oligarchy.

Neither the unions nor the oligarchy loves us.  We need to stand up for ourselves, to whatever end that might be, and stop waiting for Superman.

Update: In light of the comments below, much of which is either illogical, purely subjective or based of false allegations of fact, this video via  Nick Gillespie and  Radley Balko from Reason seems enlightening.

For those whose reaction is that you disagree, or as one twit put it, I  undervalue the worth of unions as a counterbalance to corporate and oligarchical influence, this post reflects my point of view of the value of public sector unionism.  To the extent you think differently, you’re allowed.  I have no expectation that I would persuade you otherwise as this is a matter of religious-like faith that defies reason.

But then, why would you expect me to suddenly have an epiphany that unionism is a “universal right,” an assertion that makes me chuckle every time I think of it, merely because some unknown person on the internet screams, “but you’re WRONG!!!” Hey, I didn’t go to your house to read your thoughts; you came here.  Nobody put a gun to your head and demanded you read what Greenfield writes, or else.

So yes, I get that others disagree with me.  You’re allowed, but you can’t manufacture facts to support your position.  And if your argument is that I (and anyone else who disagrees with you) am evil, then you should expect to treated like the nutjob you are.  To those of you who demand that I meet your approval, whether in my substance or my manner of dealing with comments, take a hike.  You are not the center of my world (or anyone else’s except your own).  It’s time someone told you this.

If this doesn’t meet with your approval, so what?

There’s much to commend dogs.  They make fine pets, if you’re so inclined.  They can fetch dead critters if properly bred and trained.  Some are even considered attractive, in a canine sort of way.  But the mythology that surrounds their ability to sniff out drugs, long vaunted by police and the media to the point of near infallibility has got to go.  Pet them. Love them.  But don’t bet the Fourth Amendment on them.

At Reason, Greg Beato takes on man’s best friend.

When [Jonathan] Huynh was an eighth-grader at Oak Avenue Intermediate School in Temple City, a drug dog picked out his gym locker during a random search. When Huynh returned to the locker room at the end of class, a school administrator opened his locker in front of him and the rest of his classmates. The detection dog immediately lunged for the backpack and took hold of it, but when the administrator subsequently searched it, he found no drugs or other contraband. When the administrator and the canine team left, all the other students started laughing at Huynh. “I felt completely humiliated,” he later wrote on an online message board.

Such incidents have done little to damage the reputation of drug dogs among the animal lovers on the Supreme Court. In the 2005 case Illinois v. Caballes, the Court ruled that a canine sniff for narcotics at a traffic stop was not a search, even when there was no reasonable cause for suspicion. In writing the opinion for the majority, Justice John Paul Stevens further enhanced the power of drug dogs by claiming that even their false alerts are no cause for concern, because no “legitimate private information” is conveyed when they indicate the presence or absence of contraband material.

And who took on this dubious rationale?  None other than former criminal defense lawyers turned Virginia prosecutor extraordinaire, former CLTV star and blawging stalwart, Ken Lammers.

In a 2005 essay for the NYU Journal of Law & Liberty, criminal defense attorney Ken Lammers translated Justice Stevens’ dubious argument into plainer language: “It is as if Justice Stevens had upheld a warrant by arguing: ‘When Officer Smith lied to Judge Jones in order to get the warrant, the lie, in and of itself, did not reveal any legitimate private information, and therefore the warrant is valid.’ ”

There was no slipping any rhetorical nonsense past old Ken.  More to the point was the dog hits simply aren’t anywhere nearly as worthy of credit as courts have held.  Consider whether it would be equally acceptable for a cop to flip a coin in order to establish probable cause to search.  For a dog whose established ability to sniff out drugs runs in the typical 50% range, it’s no more likely to be accurate than a flip of a coin.  And I’m not even going to touch the “tainted money” dilemma here.

Yet the use of dogs as a facile means of circumventing the warrant clause is not only continuing, but eludes meaningful review because of the fact that dog sniffs, for the most part, are either not considered a search or not a sufficiently significant intrusion on privacy to warrant redress. 

In March 2010, the Third Court of Appeals of Texas held that a student who was forced to leave her backpack on her desk for a drug dog to sniff after she and other students vacated the room had not been victim of an unreasonable seizure because that seizure did not lead to a significant invasion of privacy. But a seizure doesn’t have to compromise someone’s privacy to qualify as unreasonable—it just has to be unreasonable. “Consider an officer walking up to you on the street and grabbing your briefcase out of your hand,” attorney Ken Lammers writes in an email to me. “He has seized it, but he has no idea what is inside it and therefore your privacy has not been infringed upon. [But] would a reasonable person believe your constitutional right against unreasonable seizure of your property had been violated? Of course he would.”

The use of drug dogs in schools is becoming increasingly pervasive, and is not only permissible, but implicates no 4th Amendment scrutiny.  This might be less problematic is the dog sniffs were as reliable as fabled, but when intrusive searches are the product of coin tosses dog hits, and are unassailable because of the reliability of a dog alert to establish probable cause to search, we’ve handed over enormous power over our children to a dog.

The rationale behind a dog alert not being a search isn’t quite as nutty as one might think.  if an odor emits from a sealed container, such that it can be smelled by a dog outside the container, then the privacy rights of the person whose container it is isn’t violated.  It’s analogous to putting an odor in plain sight, or speaking loudly enough for others to hear a crime being executed.  It makes some sense, but it similarly depends on the efficacy of the dog.

The confluence of a dog’s lack of mythical powers, the rationale that no privacy interests are violated by the false positive alerts since there are no drugs to be found as a result and the pervasive use of dogs as a quick and easy means of establishing probable cause, serve to make this one of the easiest means of circumventing the 4th Amendment. 

It seems to me that any dog handler with any skill could get his cute and cuddly buddy to alert at will, essentially providing carte blanche to search any darn time he wants.  And there’s nothing anyone could do about it.  There isn’t a judge in the nation who won’t uphold a search on probable cause based upon a dog alert.  Judges love dogs.

But then, no harm can come from a search based on a false dog hit.  Unless, of course, you have an issue with being subject to searches at will, or happen to have something else in your car, locker, briefcase, that you would prefer the cops not see.

H/T Ed. at Blawg Review

It’s like cigarettes causing cancer.  Everybody knew it, and still the tobacco companies denied it and fought it to the death.  Now the obvious has been proved: The New York Police Department has ticket quotas.  I’m shocked. Shocked!

From the Village Voice :

A Brooklyn jury yesterday ruled that ticketing and arrest quotas, long denied by the NYPD, do exist, and left a woman in cuffs after trying to stop her son’s arrest.

In a lawsuit filed by Bedford-Stuyvesant resident Carolyn Bryant, the jury found that the NYPD had a “custom and policy” on arrest numbers which violated her constitutional rights…

Notably, the Voice has had a series, “The NYPD Tapes,” about the 81st Precinct in Bed-Sty, where stop and frisk is generally based on people breathing and walking on the street.  Again, the proof came from inside the precinct.

Key testimony in the case came from Capt. Alex Perez, who told jurors that indeed arrest quotas were key in judging cops’ productivity.

It’s just management.  After all, how else can a supervisor know if beat cops are working or hanging at Dunkin’ Donuts?  There has to be some tangible evidence, like, oh, the issuance of tickets.  Arrests are a little harder to come by, plus somebody could get hurt if they have to run to catch some perp.  Tickets are quick, easy and generally result in a he said/she said dispute where police officers are likely to prevail.  After all, as the argument goes (and has always gone), why would the cop lie?

Now we have the answer.  Because if they don’t make their quotas, the catch it from upstairs, are unlikely to get better assignments or promotions and may well be treated poorly by peers and superiors alike.  Nobody wants to be the goat of the precinct.

The problems arise at the end of the day, or end of the month, when a cop’s numbers are down.  He knows it because his sarge has just humiliated him in front of all the other cops, and told him to get his butt on the street and write.  And so he must.

But there isn’t much to write about, as the natives are behaving well.  Yet there’s some kid in a backward baseball cap with his pants hanging low, or somebody driving a beat up car with darkened windows.  Bingo. And if nobody stands out, there’s always the baby momma with the big hoop earrings and nasty mouth.  Any cause will do, and no cause will do as well.  Just write them up.  There’s no way he’s going back to the precinct without a pocket filled with tickets to prove he’s working.

And the NYPD smiles.  Their cops are hard at work, earning their pay and protecting the citizens of the City of New York from all manner of miscreants.  They’ve got the tickets to prove it.  They remain a vital and necessary force for the protection and service of the law-abiding taxpayers.

So what does the NYPD have to say about this verdict?

Despite the jury verdict, a city lawyer [Zev Singer] told reporters, the NYPD “does not use quotas.”

Does that come in menthol?

Lest one think this puts the question to rest, bear in mind this was a Brooklyn jury, meaning that in the scheme or New York City credibility, it ranks poorly.  This is seen in the balance of the verdict.

Jurors came back with an invalid verdict, deciding there was no false arrest. But they still awarded punitive damages, prompting Bryant to accept a $75,000 out-of-court settlement.

Fuggedaboutit.  It could have been worse, had the case been tried in the Bronx.  For those inclined to wonder about the genesis of the underlying action:

Bryant claimed she was hurt confronting cops who busted her son for drugs. Charges against her were dropped and the drug case against her son was dismissed.

The plaintiff claimed injuries to her neck and knee, and was seeking $5 million in damages.  The settlement amount is about the New York norm for someone unlawfully forced to endure the odor of bad breath on the subway, which Bryant’s lawyer declared to be a “moral victory.” 

But at least the jury of six men found that the New York Police Department uses quotas, as if anyone thought otherwise.

H/T Packratt at Injustice Everywhere

A curious search warrant was granted in Sarasota, Florida, that provided for the search of all persons who entered a parking lot, which the police contend had become a “vibrant open air drug market.”  These things happen.  This is how  Orin Kerr described it:

In Sarasota, Florida, a vacant lot next to an apartment building has become a vibrant open-air drug market. The police are having trouble cleaning it up. So the police tried something they had never tried before: The applied for, and obtained, a warrant to search “all persons” who parked or set foot in the apartment building parking lot.

During the two-hour raid, a dozen people were searched and, even though officers justified the wide search by telling a judge no “innocent persons” congregated in the abandoned lot, only four people were charged with drug crimes. An 80-year-old man was among those detained, then released, during the operation

I suppose the government would argue that this case is unlike Ybarra because the warrant was for “all persons,” not “Greg.” But that theory runs into obvious problems with the facial validity of the warrant. From a particularity standpoint, a warrant “all persons” is as much of a general warrant as you can get for a warrant authorizing a search of persons; and from a probable cause standpoint, I don’t know how the affidavit possibly could have established that there will be probable cause to believe that there is evidence on every particular person who enters a parking lot.

Both Orin and the many commenters at Volokh Conspiracy then pursue a variety of ideas, comparisons, arguments, in an effort to explain or unexplain how this warrant, which gives every appearance of being the despised and prohibits “general warrant”, could be granted.

The discussion goes in many circles, but despite the investment of some very thoughtful people, ends up nowhere.  There’s a very simple reason, I suspect, but it’s one that defies the most brilliant legal minds in the blawgosphere.  The reason this warrant issues is that some judge in Sarasota signed it.

Rarely, and even rarely is likely a gross overstatement, do trial level judges put a great deal of legal thought into what they do.  Some shoot from the hip.  Some shoot with their eyes closed.  Some bear a striking resemblance to  Governor William J. Le Petomane in Blazing Saddles. 

One of the aspects of life in the trenches that one must endure is the ability to smile as a judge issues a decision which is patently wrong.  Things fly fast and furious at times, and decisions are made off the cuff.  While ex parte applications are troubling enough, there being no one to oppose or question the premise, and judges approaching matters with whatever bias they bring to the bench, there is a more basic reality that we face on a constant basis.  Wearing a robe doesn’t make anybody a genius or legal scholar.  They’re just guys like us who wear robes.

Judges often forget this, though that isn’t the reason why they make snap, and grievously wrong, decisions at times.  The nature of the job is to make decisions, and no experienced lawyer or judge presumes that anyone is going to nail it with every decision.  Similarly, some don’t nail it with any decision.  For some judges, their greatest skill is licking envelopes at the political party office and not annoying the party leader.  Getting along is one of the foremost qualifications for being offered a judicial post.

This isn’t offered as a cynical view of the judiciary, but a practical one.  Not all judges are well-suited to the task, and bad decisions happen with unfortunate frequency.  Indeed, that’s why we have appellate courts, to correct mistakes made below.  The problem with appeals, of course, is that appellate panels too often defer or protect their trial level brethren, reversal besmirching their fine reputation.

This hard reality is reflected in the maxim that every defendant is entitled to a fair trial, not a perfect one.  Fair is relative concept, leaving many a defendant shocked at what suffices.  When a lawyer can sleep through portions (not important portions, perhaps, but portions nonetheless) of a capital trial and not be found ineffective, the lack of perfection is driven home.

Back to this warrant, there are many judges who are disinclined to scrutinize the requests of the police too closely, both because they tend to side with the police as a general matter and recognize that most search warrants fall under the no harm/no foul rule.  If a person is searched and no drugs are found, then he’s released to go his merry way.  If a person is searched and possesses drugs, then he’s a criminal and bad warrant or not, deserved to be prosecuted.

Clearly, there is harm to the person who is searched without cause, and there is no shortage of Supreme Court verbiage explaining it.  But that’s mostly ivory tower stuff in the trenches, where judges are well aware that tens of thousands of innocent people are routinely stopped and searched for no particular reason.  Consider the New York City stop and frisk program.  It doesn’t escape the judge’s notice that the cops are searching hundreds of thousands of innocent people who, because there is no charge, will never have the opportunity to complain about it.  It’s just life on the streets, as far as their concerned.

One of the people arrested under this “all persons” warrant challenged the search and seizure.  As one might expect, suppression granted wasn’t the gut reaction.

In court this week, Judge Rochelle Curley upheld the legality of the search warrant. But an attorney for one of the men arrested outside the Mediterranean Apartments has vowed to push the case to the district court of appeal.

Those involved say a decision by the higher court could lead to a new precedent for police searches in Florida, essentially banning such broad searches or signaling approval for more widespread use.

It’s unknown whether Judge Curley was the one who signed the warrant in the first place, which presents the somewhat awkward situation of asking a judge to concede that she totally blew it when she approved a general warrant.  But regardless, Judge Curley had the chance to consider (or reconsider, as the case may be) the decision and stuck to her guns.

The problem, for Judge Curley, is that controverting a warrant, or granting suppression, means that you let a bad guy go, piss off the cops and offer up your smile as posterchild for soft-on-crime.  Better to be wrong on the side of the angels than right on the side of the devil. 

And so an appellate court may review the warrant, and may reverse.  Or may not.  Or may play some rhetorical games to cover up the wrong that appears to flagrant to so many.  Or may just switch around some salient facts to create a scenario that bears no familiarity with what we think we know now.  Or whatever.

Life in the trenches rarely meets the academic or theoretical purity that we pretend informs the law.  It’s ugly and nasty, and it’s often unfair.  That’s why we fight about it, and try to out-unfair the other side as well as the judge.  Because we know that there’s a judge somewhere who will sign a warrant for “all persons,” and do some pretty awful other stuff as well.

While there are some  major problems with the government’s ability to deal with technology, sometimes these problems inure to the benefit of those favoring privacy.  From the New York Times :

The F.B.I. has been quietly laying the groundwork for years for a push to require Internet-based communications services — like Gmail, Facebook, Twitter, BlackBerry and Skype — to design their systems with a built-in way to comply with wiretap orders. On Thursday, the bureau made its first full airing of the “going dark” problem.

“Due to the revolutionary expansion of communications technology in recent years, the government finds that it is rapidly losing ground in its ability to execute court orders with respect to Internet-based communications,” said the F.B.I.’s general counsel, Valerie Caproni.

While the government has yet to settle on what exactly it wants internet communications companies to do to facilitate its ability to access our every communication at will (although it would never do that, because it would be wrong), the gist of Caproni’s testimony was that the FBI wants Congress to mandate that all internet based communications include a “back door.”

Somewhat surprisingly, her request was not met with thunderous applause.

Representative John Conyers Jr. of Michigan, the ranking Democrat on the Judiciary Committee, was one of several lawmakers who said he was likely to greet such a proposal with skepticism. Forcing Internet communications services to build in “back doors” for law enforcement surveillance, he said, would hamper innovation and create vulnerabilities for hackers and foreign governments to exploit.

“Requiring back doors in all communications systems by law runs counter to how the Internet works and may make it impossible for some companies to offer their services,” Mr. Conyers said.

Notably, Rep. Conyers’ concern wasn’t about privacy or abuse, but rather economic development and external exploitation. 

Several lawmakers of both parties raised concerns about how such a mandate would affect the competitiveness of Internet companies that operate in the United States. Still, several Republicans suggested sympathy with law enforcement officials’ fear that changing technology could hamper their ability to investigate criminals and terrorists.

Clearly, there’s potential for a political rift here, given the need for some to seek re-election on a tough-on-crime platform, while others plan to run on it’s-the-economy-stupid line. 

Regardless, the current state, and apparent development, of technologies designed to thwart hackers and protect confidences also precludes many new tech companies from giving the government what it wants; plain text versions (like on white paper in courier 12 point font, in triplicate) of all communications, no matter what medium is used, going back years.

The FBI contention is not that they seek greater powers to intercept communications, but merely that they are trying to stay afloat as technology sinks their plans.

A 1994 law requires phone companies to build their networks with the capability of immediately starting to intercept a user’s communications when the company is presented with a wiretap order. But that law does not cover Internet-based communication providers.

As a result, while they, too, are subject to court wiretap orders, they are often unable to comply, for technical reasons, when presented with one.

While unmentioned during Caproni’s testimony, my sources inside government inform me that if Congress fails to provide the FBI with the resources it needs to intercept any communication via any medium now or in the future, there are secret contingency plans to go the garage/headquarters of all developing internet communications provides and beat the living daylights out of them until they acquiesce.

For the moment, however, there might be a more valuable purpose to twitter than previously realized.

At least for now, no one is arguing that 21 year old Evan Daniel Emory isn’t deserving of some condemnation.   Eugene Volokh thinks so.   Jonathan Turley thinks so.   Radley Balko thinks so.  Kinda.

Evan Daniel Emory, 21, got permission from Beachnau Elementary School officials in Michigan to record himself singing the song “Lunch Lady Land” in front of a class of first graders, but under the false pretense that he wanted to use the video as part of his application to a school of education. Emory was actually planning a comedy bit. He later dubbed in sexually profane lyrics and posted the video to YouTube, making it look as if he had sang the dirty lyrics directly to the children.

And then all hell broke lose in Ravenna, Michigan.

Now, I can understand if Beachnau school officials and parents don’t share Emory’s sense of humor. I can understand a parent becoming rather irate upon learning that Emory had serenaded the kids with filthy lyrics. And even after learning that the dirty audio had been dubbed in, I can also understand a parent might still be ticked off that his kid’s face appeared in the finished product. (The video is obviously offline now, but according to the article, it begins with Emory writing on a chalkboard, “Disclaimer: No children were exposed to the ‘Graphic Content’ of this video.”)

Then Radley played a bit of a joke on his readers, suggesting that the local prosecutor, Muskegon County District Attorney Tony Tague, responded by calming down the townspeople with their torches and pitchforks.

“Look, I know a lot of people are upset. But the video has been taken down, and the actual damage done to the kids is minimal. They didn’t actually hear the sexually suggestive lyrics. Any time you have a story about sex, children, and the Internet, there’s going to be a tendency for some people to overreact. Mr. Emory showed incredibly poor judgment here, and I hope he has learned his lesson. But my job is to fairly apply the law, and I simply don’t think it would be in the interest of justice to charge Mr. Emory with a crime just to register our moral outrage at his prank.

Of course, that’s not what happened. Instead, Emory was arrested and charged “with manufacturing child sexual abusive material, a 20-year felony.”

While no voice has yet been raised in support of the charge, contending that anything done here satisfies either the local statute or some broader notion of creating child porn.  Still, there remains a question of whether this conduct constitutes a crime, and if so, what?

It appears from Radley’s post, most notably his title, The Criminalization of Borat, that this conduct falls into the prank category, and that, “in the interest of justice,” it’s dismissed as no harm, no foul.  It’s not nearly as clear to me.

There appears to be little doubt that Emory lied his way into a school, thus fraudulently inducing the school to permit him to obtain footage of first graders for his own purposes.  My understanding is that their faces were readily identifiable in the video, which was gone before I could see it.   While the children were never, in fact, exposed to anything inappropriate in song, they were exposed to the world in the video.  That alone troubles me.

It may well be that my personal sensibilities about the exploitation of children color my vision.  It may be that a shot intentionally fired at a person’s head, which happens to miss, doesn’t negate an attempt at murder.  But the conduct here strikes me as going beyond a mere prank, and exceeds the no harm, no foul, analysis. 

If so, then what crime would it be?  Or am I overly sensitive to improper conduct involving children?

As I watched Lance Armstrong win the Tour de France, again, my admiration for his achievement was dampened by the sight of a U.S. Postal Service logo on his chest. The post office  spent $4 million  for the endorsement.  This came at a time when the price of stamps was increasing hourly while service cutbacks were constantly threatened.  Performance by postal employees did not reflect performance by Armstrong.

Now $4 million, in the scheme of a big money operation like the postal service, isn’t a great deal of money, although it would be a few rolls of stamps.  What was disturbing was that these quasi-public monies were being used to fund a private team for the purpose of marketing.  I wondered, “wouldn’t the better use be to improve service, reduce costs, perform its public function,” than put its logo on Armstrong’s chest?

Apparently, I was the only one who thought this, as there was no cry of anguish at the sight of a stylized blue eagle (as if the lack of an up-to-date logo would have adversely affected the existence of the Postal Service) stretched across Lance’s yellow jersey.  As much as it bothered me, I was alone.

Following the Superbowl,  Jonathan Turley noted that there was a Navy flyover in the pregame that cost about $450,000.  While these flyovers stir patriotic fervor, and can be pretty cool to watch, he still found it a bit problematic since the stadium was domed. 

The Navy insists that it is good for public relations . . . for the public to see that it is willing to spend hundreds of thousands of dollars at a time of economic stress to fly over a closed domed stadium.

Much of the cost for the flyover stemmed from having to transport the F-18 jets from Virginia Beach to the Great Republic of Texas, even though the spectators inside the stadium watched the flyover on the jumbotron.

Turley  raises another issue with the military’s expenditure of $100 million to sponsor NASCAR.  For those of you unfamiliar with NASCAR, it’s the auto racing progeny of bootleggers escaping from the revenuers, reduced to turning left at high rates of speed. Via CNN :

Rep. Betty McCollum, D-Minnesota, is offering an amendment to the 2011 House budget bill to ban the sponsorships, which her office said has cost the military $100 million over the past 10 years, according to the Minneapolis Star-Tribune.

The National Guard sponsors Dale Earnhardt Jr.’s team, the Army sponsors Ryan Newman, and the Air Force sponsors AJ Allmendinger, according to HamptonRoads.com.

“I would challenge the Pentagon to give me one example of someone today in Iraq or Afghanistan who saw the Go Army car going around the racetrack and that’s why they joined the Army,”

Not surprisingly, the people who get the money think otherwise.

“NASCAR fans are the kind of people who fight America’s wars, which would put into question the wisdom of banning the military’s ability to reach out to them,” NASCAR spokesman Randy Poston said in the HamptonRoads report.

He’s got a point about NASCAR fans, with the rest of us sipping champagne in our limos.  Yet the point doesn’t seem to have any nexus, any connection between logos on cars and getting killed in Iraq.  Well, maybe the getting killed part.

At what point did marketers infiltrate our government and whisper in the ears of elected officials that tax dollars would be best used to “authentically engage” with the public, thus making them desire to hand over their money, vote for the incumbent, offer up their children as canon fodder and subject their genitalia to a quick feel by overweight men?

I say this not because of any skeptical view as to the efficacy of spending $100 million on NASCAR, which could have otherwise been used to buy a couple of Bunker Busters in case Saddam is resurrected, but in sympathy with Turley’s point, that our schools are cutting teachers while the military is sponsoring race cars.  This might trouble some people, especially teachers.

One of the fundamental benefits of being a government is that you’re the government.  You have the ability to tax, as well as the ability to decide where those tax dollars get spent.  While talking heads spew sound bites on television carefully crafted to impugn the other side while not cracking up on camera, you know that nobody else gets to form a government to compete with you. 

Sure, there private enterprises challenging governmental hegemony, from Federal Express to Halliburton, but has anybody figured out that they way to maintain control is to do the job well rather than market?  And if you can’t provide a service as well as a private company, then that’s just one less thing you have to worry about in office. 

My guess is that marketers, of the sort who promote their services to lawyers and laundry detergent, can offer a ringing endorsement of why our tax dollars should be spent on promoting government services, with a bit of it going to the marketers who come up with these bright ideas. 

Still, I have to wonder whether aficionados of NASCAR are willing to have their kids’ teachers laid off so that our military can put Army on the hood of Ryan Newman’s Chevy. What?  Oh.  They laid off their teachers years ago and nobody notice?