Not knowing anything more about 21 year old Robert Michelson, it’s impossible to say whether he is a moron or under the influence of a controlled substance.  That said, we teach our children that the way to get answers is to ask questions. 

That doesn’t mean, however, that 911 is the best place to ask. 

What scares me most about this is that Michelson hails from Farmington, Connecticut, close enough that we might have been driving on the same road at the same time at some point.

For future reference, 911 is for emergencies.  It’s 411 for information, though this isn’t really the right place to ask this question either.  Just saying.

Last February, the Israeli ambassador to the United Nations, Michael Oren, went to the University of California at Irvine to speak.  It was controversial, as the Muslim Student Union took issue with Israeli policies.  No surprise there.  Regardless of one’s position, there is little doubt that others will disagree.

A group of Muslim students made a decision, that they would engage in a concerted protest against Israel by standing up during the speech, yell a slogan expressing their political opposition to Israel’s policies, and peacefully walk out, into the waiting arms of police.  There would be no violence, no chaos.  But they would seize the opportunity, with Oren standing there, to state their opposition.

It was a principled protest.  These students believed in their cause and purpose.  They realized they would suffer some form of sanction for the actions, particularly since it was seen as a serious breach of academic etiquette to disrupt an invited speaker.  Indeed, UC Irvine founding Dean, Edwin Chermerinsky, whose liberal passions are legend, refused to recognize the free speech of the protesters trumping the free speech of the Israeli ambassador.

The nature of protest being what it is, the school was not happy about the students’ decision to protest, and disruption of the event.  No doubt the students expected as much and were prepared to face the consequences.  Perhaps they would have to endure a stern talking-to by Dean Chermerinsky.  Maybe suspension and picking up trash around the campus.  While they might have hoped that the school would perceive their effort as akin to the peaceful resistance offered by Martin Luther King, they must have realized that there was a very good chance that no day would be named after them.

What they did not anticipate, however, was that Orange County District Attorney Tony Rackauckas would see the actions of the Irvine 11 as an opportunity to strike a blow for America by prosecuting these students for the felony of conspiring to commit a misdemeanor.  Apparently, in Orange County it’s a crime for Muslim’s to interrupt.

During an NPR Interview, Dean Chermerinsky denounced the prosecution.

Dean Chemerinsky’s position is that the students didn’t have a first amendment right to disrupt the speech, but that criminal charges aren’t warranted.  UCI had already taken disciplinary action against the disruptive students and suspended the Muslim Student Union for the fall 2010 quarter.  The MSU is also serving two years of probation.

Typical of the academic mindset, they can’t understand why what happens in Vegas UC Irvine doesn’t stay in UC Irvine.  The problem, it appears, is that the outside world doesn’t seem to respect the walls around academia, much like a parent and wayward child, or angry spouse.  Publicly complain, and darn if there’s a public reaction. 

The LA Times, similarly, condemns the protest.

The behavior of the students was wrong. They could have held up signs or distributed leaflets or chanted slogans outside the lecture hall, but they should not have tried to shut down the event by making it impossible for Oren to speak. Protesters have the right to voice their objections in many ways, but not to silence those they disagree with. This principle is especially important at a university, which exists, in part, to promote the free exchange of ideas.

You know, protest all you want, but do it nicely, in a way the doesn’t annoy anybody.  Everybody enjoys a nice, orderly protest.  While the point is well taken, that silencing speech in the name of speech reflects an inherent contradiction, it misses the point of protest.  UC Irvine didn’t invite the Muslim Student Union to take a seat on stage and offer a rebuttal following Oren’s talk.  When you elevate one side of a political controversy to preferred status, does it surprise that the other side turns to more extreme measures to have its voice heard?

Yet the times, like Chermerinsky, condemns the prosecution as well.

Criminal charges, however, are not appropriate. They would be overkill, a punishment out of proportion to the offense. Is it really necessary to threaten the futures of students who engaged in a nonviolent protest that didn’t, ultimately, stop Oren from delivering his remarks? These students have been punished already, in an effort to make clear the difference between legitimate protest and their unacceptable actions. We hope they’ve learned a lesson. Now it’s time to move on.

Definitely inappropriate.  Clearly overkill.  But those aren’t words that ring well in the criminal justice system.  There is no motion to dismiss inappropriate charges.  Instead, district attorneys are elected with the implicit understanding that they will exercise discretion to reflect the sensibilities of their constituents.  Not all their constituents are holed up in the Ivory Tower.

But there is a “harder” argument to be made against the prosecution of the Irvine 11, notwithstanding their flagrant breach of academic etiquette.  Prosecutor’s don’t indict students for interrupting speeches on campus, or intervene in such parochial matters.  Except, perhaps, when the protestors are Muslim and the speaker is the Israeli Ambassador?  

This smacks of the selective prosecution of Muslim students because, well, we hate Muslims for blowing up the Twin Towers, the USS Cole and a couple of embassies in East Africa.  How many chances does the Orange County DA get to strike a blow for American against Muslims?  Carpe Islam.

Caveat: This post is not about whether Israel is right in its treatment of Palestinians or settlement policy.  Do not post comments expressing your view that the Irvine 11 are wrong, dumb, ugly or dress funny, or that Michael Oren is the front man for an oppressive Zionist regime.  The underlying politics has nothing to do with the fact that there are two sides (actually, more) to this very controversial issue, and that the Irvine 11 protestors reflect a side that strongly opposed the policies of the nation Oren represents.  I don’t happen to agree with Irvine 11’s position, but I fully understand their desire to have their position recognized.  Leave it at that.

It’s not that the Irvine 11 get a free pass at consequences for their actions.  If they want to proudly wear the mantle of Martin Luther King, they need to remember that he was a regular at the Birmingham jail.  King was willing to pay the price of his convictions (pun required).  That’s how nonviolent protest works.

And so does disapproval of prosecution for such protests, when the only group worthy of prosecution for engaging in disruptive speech just happens to be a bunch of Muslim students.

If Tony Rackauckas was a speech martinet, prosecution disrupters without regard to their views or religion, maybe he could be forgiven for inappropriate emphasis on the Irvine 11.  By singling out these Muslim students for prosecution, however, he’s just another opportunist trying to squeeze some All-American political juice out of them.  Selective prosecution, however, is unAmerican, even when “red-blooded” Americans bristle at the content of their character.

Few, if any, trench fighters don’t cringe whenever  another story of zero tolerance disaster comes across the news.  The stories are legion, and condemnation is essentially universal amongst those of us who fight for rationality and proportionality against those bureaucrats who are given a set of rules to be treated as absolutes. 

How, we wonder, can any thinking person, not recognize that zero tolerance, a palliative for the simple-minded, is a failure?

How indeed.  Enter a particularly fine mind, UCLA lawprof Eugene Volokh, in support of zero tolerance.  So what, you mutter, comforted by the self-righteousness of being merely correct.  Let’s not forget that people, and by people I mean journalists, politicians, elected officials and, perhaps most importantly, school administrators, adore professors. 

Have you ever noticed how, in the midst of a story about some heinous crime, the reporter will insert a paragraph stating the views of some crimlaw prof who knows absolutely nothing whatsoever about the actual practice of law, but who opines as to the magnitude of the crime and likely outcome?  Why, you wonder, would this reporter ask someone who is utterly clueless when there are literally thousands of incredibly knowledgeable lawyers available for comment?  Because he’s a professor.  Being hired by the Academy imbues an otherwise unemployable, and certainly incompetent, lawyer with the most important of magical abilities:  Instant credibility.

Taking that a step farther, when the professor is one who can be called “well-respected,” as opposed to the double assistant adjunct prof at Okefenokee Junior College and Auto Repair, his word is written in stone.  No mere person of actual competence can challenge or question it, as he’s a Scholar and we’re mere groundlings, barely worthy of fetching him sherry.

Now I’m not saying that Eugene thinks this, and know, in fact, that he doesn’t.  He appreciates the work of trench lawyers, and realizes that we do the heavy lifting while he gets to hang out by the pool with those UCLA law school starlets.  Still, he understands the power of being a professor.  He needs to use it wisely.

To begin with, a zero tolerance policy means zero tolerance for some class of behavior, with some mandatory penalties. This suggests that some such zero tolerance policies might be good, depending on what is banned and what the penalties are. Zero tolerance for, say, fighting (with an exception for self-defense), with mandatory penalties starting with an afternoon of detention and working up from there, might well be sound. Zero tolerance for bringing sharp knives to school, with no exception for honest mistakes, but with mandatory penalties starting with a week of suspension and working up from there, might also be sound (depending on the circumstances). Zero tolerance for bringing toy pistols to school, with the penalty being a call to the parents, admonition to the child, and confiscation of the toy might be sound as well.

Eugene goes on to explain why discretion on the part of school administrators is problematic, offering a number of instances where discretion feeds both the behavior to be eliminated as well as the perception of unfairness, from which he finds:

This suggests that there are substantial possible benefits to a zero tolerance policy, where at least some punishment is required with no possibility of discretionary waiver, and no “honest mistake” defenses. And while there are some costs to such a policy, those costs are comparatively low for modest punishments, though much higher for greater punishments.

With the equivocal “tentative,” Eugene concludes:

This leads me to tentatively think that the problem is not with zero tolerance policies as such; some zero tolerance policies are probably a good idea, depending on the sorts of student behavior problems and administrator-parent tensions that might be present in the school or the school system. The real problem is with zero tolerance policies that (1) are defined too broadly (for instance, to include butter knives, nerf guns, easily identifiable over-the-counter medicine, and the like) or (2) carry punishments that are highly unjust as to a nontrivial fraction of the incidents in which the policy will be applied.

It’s hard to pin down a problem Eugene’s views, since he does the putatively undoable: He supports zero tolerance with caveats.  The problem, of course, is that there is no animal like that.  Zero tolerance, by definition, doesn’t come with reasonable discretion, which is what makes it zero (as in, “zero”) tolerance.

From an academic perspective, Eugene’s views are completely understandable, as scholars can equivocate like nobody’s business.  From the bureaucratic perspective, they offer solace to grocery clerk with a checklist who expels students for the most absurd offense.  Why?  Because a professor endorsed zero tolerance.  Not just any professor, mind you, but a well respected one.

Just as we keep scratching our heads and wondering how it’s possible that anyone, anyone, could cause the mindless, idiotic harm to children that school administrators so routinely, and so unapologetically, do, a well-respected academic like Eugene comes along and offers an overly nuanced, highly qualified (as in, too many qualifiers to make “zero” mean “zero”) yet open endorsement of likely the most dangerous and damaging approach to discipline around. 

Eugene, don’t do it.  I realize that intellectual freedom, the need to discuss, raise, question, challenge ideas, pushes your curiosity into such matters.  To the scholar, this might be a worthy debate on a theoretical level.  But like it or not, you have power to influence others.  They will seize on your words and use it to prove that zero tolerance is a wonderful concept, a justified and justifiable concept, and they will expel students with nerf guns, or who point fingers, or draw images of bombs bursting in air. 

Sure, we know that your musings aren’t worthy of such recognition, but they don’t.  The media, the politicians, the grocery clerks, are so overwhelmingly impressed by your professorial status that they will hang their policies on your conclusions, and hang their students alongside.  Is this what you want?  Do you want to be the cause of such mindless pain and suffering?

No doubt it’s been an interesting intellectual exercise thus far, and I truly hope you’ve enjoyed it, Eugene.  But please, I’m begging you, see the writing on the wall, how your words will be spun, shortened, simplified and abused.  Your support for zero tolerance will be the counterweight to all those voices screaming for its demise.  Don’t let that happen.

Eugene, use your power for good rather than evil.  Denounce zero tolerance.  Do it for the children.

There is was,  right on twitter this morning, much to my surprise.

The Rocket Matter, LLC Daily is out! ▸ Top stories today via @ consumerfinance @ lavocate @ davisesq212 @ scottgreenfield

@ rocketmatter‘s response will be “I’m doing you a favor by promoting your blawg. You’re welcome.”

Do you never want anyone to quote a sentence of yours or link to your posts? What is OK and what is not?

My lord @ scottgreenfield complains so much he sounds like an old lady on a bus.

Let’s make it clear up front that Arizona has become the odd state out of the Union lately, fighting furiously for its independence from the rest of the nation to free it to be as bizarre a banana republic as possible.  From Crazy Joe Arpaio in Maricopa County to its hatred of people whose names end in a vowel, Arizona has become special.

Yet, even a clock thats stopped is right twice a day.  Could this be Arizona’s moment?

Jeff Gamso writes about proposed SB 1433, Arizona Senate, First Regular Session 2011, which proposes to fix the relative rights and powers between the federal government and the sovereign state of Arizona as of 1912, the year it was admitted to the Union.

For example, check out section 2 of the bill:

It’s too horrible.  You won’t be able to handle it.  Don’t watch. 

That’s what the federal Judge Ewing Werlein Jr. District Attorney Pat Lykos and Houston Mayor Annise Parker contend, that this video shouldn’t be released as it’s too “shocking and sickening” for our delicate sensibilities.

Whether your stomach can take it is up to you.  I warned you.

The young man in the year old video, Chad Holley, was convicted of burglary and sentenced to probation.  Given Texas law, he’s lucky he wasn’t shot to death by a neighbor.  They get a bit sensitive about intrusions into their castles in Harris County.

But the Houston police, for reasons that remain unclear, took a special interest in Holley.  Unfortunately, it appears to have been “feet only” day on the Houston streets, explaining why officer after officer felt compelled to kick this kid from head to groin, over and over, despite his lying prostrate, hands in plain view, unarmed and non-threatening.  What better time for the cops to kick the crap out of a kid?

There are questions as to why the police on this video were not charged with misdemeanor assault  rather than the lesser offense of official oppression.  The police chief fired the four charged officers, together with three others, and plans to keep them fired until they are reinstated with back pay at an arbitrator’s whim.

More importantly, what does this video say about the culture of police in Houston?

Disbelief that our paid professional police force includes groups of officers capable of such actions against a prone, unarmed youth. And shame that it took an inadvertent video-camera tape from a self-service storage company to expose their actions. How many other similar incidents have gone unreported because they occurred outside the view of witnesses and camera lenses?

This  Houston Chronicle editorial asks an interesting question, but one that should have been asked long ago.  It’s not as if this is the  first video of cops beating someone.  Did they forget about others? 

What is most striking about this attack is how these fine, upstanding police officers kick Holley, over and over, one after another.  What a fabulous show of force, manly men all.

After watching the video, I’m constrained to agree with the judge, the district attorney and the mayor.  This is a video that no one should ever see.  Not because it shows Houston police engaged in shocking and disgusting conduct, something that everyone ought to be aware of and recognize to be the sad reality on the streets, but because the police in Houston, as opposed to elsewhere where the cops, when compelled to give a perp a damn good beating, do it like men.

There’s plenty of machismo in the drinking water of Harris County, as well as the rest of Texas, where no one hesitates to pull the trigger of a 12-gauge when they spot some kids crushing the neighbor’s blades of grass or walking too close to the garden gnomes for comfort.  They’re a tough bunch of hombres.

But the Houston police behaves like sissies, kicking a man down.  Not even man enough to throw punches, save one, empowering his brother cop to step behind Holley and give a few more kicks to his crotch.  How masculine.  How powerful. How macho.

No, this isn’t the way Houston should see their police.  It’s one thing for them to watch a video where the police beat Chad Holley for no reason whatsoever after he’s prone on the ground, and that’s the sort of thing any manly Texan can appreciate.  But to do so like such sissies is too much for any good Texan to stand. 

If it’s not too late, avert your eyes.  No one needs to see this humiliation of Texan manhood.

There are places in the human body where things can be secreted.  Anyone who’s read Papillon knows, as does anyone familiar with some of the tricks of the drug mule.  Yet, the physical integrity of a person isn’t, by definition, the playground of the police should they decide, for whatever reason, that they wish to determine whether there’s anything lurking in a fellow’s anus.

Enter the professional. 

When it came to the extraordinary move to paralyze an Anderson County man to search his body for drugs, this doctor didn’t hesitate.

“That exam was going to occur with or without his consent,” Methodist Medical Center of Oak Ridge Dr. Michael LaPaglia testified Tuesday in U.S. District Court.

No muss.  No fuss.  No warrant.  Doctor’s orders.

After his arrest, officers contended he was unusually fidgety and temporarily “barricaded” himself in an interview room. Booker struggled with jailers after a strip search at the Anderson County Jail and, according to Jailer Jerry Shelton, was strapped naked into a “safety chair” before being hauled, still naked but wrapped in a blanket, to the Methodist Medical Center emergency room.

Once there, the shackled and handcuffed Booker was given a dose of a muscle relaxant after LaPaglia insisted Booker “clenched” his buttocks to thwart a cavity search.

“He still had enough voluntary consciousness to clench his muscles,” LaPaglia testified. “I decided to paralyze the patient and retrieve the object.”

One has to wonder what might make an arrested defendant “unusually fidgety” so as to surmise that he’s concealed narcotics within his body.  Perhaps it’s a lot like a second grader squirming because he has to pee.  Maybe it’s different, the sort of motion that alerts a professional, like a doctor, to believe there’s something to be found on the other side.  Either way, Michael LaPaglia, the physician, was determined to find out.

LaPaglia, of his own volition, decided to inject Felix Booker with a drug to paralyze him.  Not because of medical necessity.  Not for any benefit to his patient.  Not because he was under constraint of a court order to do so.  LaPaglia made his own decision, took the initiative.  Carpe Anus.  And he dove into his work, a place where he would appear right at home.

Booker is on trial in federal court, it should be noted, for possession of the 5.7 grams of crack unearthed by the curious Dr. LaPaglia after his arrest for being a passenger in a car, inexplicably stopped and searched.

Booker was a passenger in a car stopped by Oak Ridge Police Officer Daniel Steakley last February. Steakley found a scant amount of marijuana in the car. He testified Tuesday that he let the driver, a relative of Booker’s, go because he was “cooperative.” But he arrested Booker, who objected to the search and had $1,731 in cash in his pocket.

Without any further details, it’s impossible to discern from this description the justification for the stop or search of the car that revealed a “scant amount of marijuana.”  But then, there’s always the price to be paid for being “uncooperative” by objecting to a search.  After all, what better reason to end up with someone thrusting past the sphincter than asserting a constitutional right?

Yet, Booker’s suppression motion was denied, as the judge, Leon Jordan, failed to find this conduct sufficient shocking, which is a curious commentary on Judge Jordan’s experiences.  Booker’s lawyer, Bob Jolley, decided to take the issue to the jury by questioning LaPaglia about his motivations to go delving into Booker’s backside on his own. 

“If I did not do the rectal exam and he overdosed on some medication, it would have been my fault,” LaPaglia testified.

And how much worse would Dr. LaPaglia have felt if it was a 16 year old psychiatric patient who suffered for his neglect?

Jolley, however, questioned LaPaglia’s judgment, noting that the doctor had been accused of smoking pot and engaging in inappropriate conduct with a 16-year-old psychiatric patient.

The answer, thus, may never be known. The power of rationalization is an amazing thing, as LaPaglia argues that his initiative in ferreting out the drugs was really done for the benefit of Booker, lest he suffer the indignity of ongoing unusual fidgeting and risk anal overdose. 

However, the medical ethics of physicians who not only cooperate with the police for the purpose of law enforcement, the search for evidence with which to convict their “patient,” doesn’t seem to give LaPaglia pause.  Here, he not only was compliant in the search, but based upon the story, took the lead, made the decision to inject a drug to paralyze Booker and took the dive on his own.  His post hoc rationale that there was a medical benefit to Booker is laughable.  Where was the informed consent?

There are serious medical ethics questions raised by physicians willingly serving the police even where a warrant has been ordered; after all, the fact that a judge has approved a search doesn’t implicate a physician’s duty to use his professional abilities to make it happen.  Do no harm?  Unless the police want you to.  Unless you happen to agree with the cops and think it’s fun to paralyze people and enter their anus in search of contraband. 

The doctor is under no compulsion to become the pawn of the court any more than he is subject to the command of the police.  He makes the choice to limit his involvement to the treatment of patients rather than the facilitator of law enforcement.  Whether there’s a warrant authorizing him to do so or not.

But then, why should Dr. Michael LaPaglia hesitate from paralyzing a person and entering his body.  After all, it was going to happen anyway.

H/T Radley Balko

I’m neither wise enough nor knowledgeable enough to have a view worthy of expressing on what’s happening in Egypt.  I do know that anyone applauding anarchy is a naive fool, but I suspect the rest of you know that as well.  Nature abhors a vacuum, and someone will fill the void.

What I do know, however, is that monumental and irreparable damage can happen in the blink of an eye during the brief moment when there is no one in control.  With forces preoccupied, Egypt is at grave risk.  Not politically, but historically.  It’s an ancient civilization that possesses artifacts of priceless historical value.  Stewardship of history is not high on the agenda of erstwhile anarchists.  But it makes for some damn fine looting.

Some kept their heads in the midst of chaos and potential ruination.  While Egypt’s antiquities were imperiled, some chose to put their bodies, their lives, at risk by standing between the relics and the protest.

Egypt’s ancient treasures appear to be safe today, after citizens, and later the military, banded together to stop looters amid an uprising that left some of the world’s most prized artifacts perilously vulnerable to common thieves.

Egyptians, desperate to protect their country’s heritage from the kind of mass looting that devastated Baghdad’s museums in 2003, created a kind of human shield around Cairo’s Egyptian Museum this week, linking arms in front of the historic site and chasing down vandals who had managed to enter the building after it was abandoned by the country’s police.

It’s unlikely that many readers remember the Dropsy Days. I don’t, and I’ve been around longer than most of you. I do, however, remember learning all about the Dropsy Days when I was a pup.  For those asking, “what’s this guy talking about, I don’t even know what dropsy is,” allow me to explain.

Back in the 1960s, following the Supreme Court’s monumental decision in Mapp v. Ohio that held the exclusionary rule to be applicable to the states…

You mean there was a time when it didn’t?
Yes, Tiffany, there was; a time, long, long ago.

…the police were suddenly compelled to come up with explanations for the otherwise rampant conduct of warrantless searches of people they decided, for whatever reason, needed searching.  And suddenly, out of nowhere, came the dropsy search.

Dropsy was when a police officer merely approached a person, without any questions or commands, and, inexplicably, the person would let a package whose contents were unknown fall from his hands to the ground.  He would drop it.  By doing so, he abandoned it, thus removing it from the purview of the warrant clause, whether state or federal.

The officer would then reach down, having seen the “thing” fall from the person’s hand to the ground, and pick it up. He would look at it. He would know, based on his training and experience, that it contained contraband. He would seize the package, and the person who inexplicably abandoned it on the ground.

This happened in case after case, defendant after defendant, day after day. It was incredible!  Didn’t these criminals ever learn?

Criminal defense lawyers with long hair and muttonchop sideburns, often wearing wide flower ties, would argue that their clients didn’t toss the drugs to the ground, that such a claim was an outrageous lie.  And judges would uphold the seizures because, well, there was no reason not to.  The officer had no reason to lie.  The defendant couldn’t prove that he did.  Suppression denied, and the promise of Mapp proved empty.

I have very fond memories of listening to Irving Younger talk about the Alger Hiss case at Cornell, thinking he was quite the spellbinding raconteur. He was also the man who wrote an article in The Nation in 1967, the year before he was elected a city judge in Manhattan, called The Perjury Routine.

When I wrote about the Ruiz decision out of Florida’s Fourth District Court of Appeals, it would have been the perfect opportunity to take this walk down memory lane. But I didn’t.  Thankfully, Johnny Gardner at Law and Baseball did.

‘* * * Policemen see themselves as fighting a twofront war —against criminals in the street and against ‘liberal’ rules of law in court. All’s fair in this war, including the use of perjury to subvert ‘liberal’ rules of law that might free those who ‘ought’ to be jailed * * * It is a peculiarity of our legal system that the police have unique opportunities (and unique temptations) to give false testimony. When the Supreme Court lays down a rule to govern the conduct of the police, the rule does not enforce itself. Some further proceeding * * * is almost always necessary to determine what actually happened. In Mapp v. Ohio, for example, the Supreme Court laid down the rule that evidence obtained by the police through a n unreasonable search and seizure may not be used in a state criminal prosecution. But before applying the rule to any particular case, a hearing must be held to establish the facts. Then the judge decides whether those facts constitute an unreasonable search and seizure. * * * The difficulty arises when one stands back from the particular case and looks at a series of cases. It then becomes apparent that policemen are committing perjury at least in some of them, and perhaps in nearly all of them. Narcotics prosecutions in New York City can be so viewed.

Before  Mapp, the policeman typically testified that he stopped the defendant for little or no reason, searched him, and found narcotics on his person.  This had the ring of truth.  It was an illegal search (not based upon ‘probable cause’), but the evidence was admissible because Mapp had not yet been decided.  Since it made no difference, the policeman testified truthfully. After the decision in Mapp, it made a great deal of difference. For the first few months, New York policemen continued to tell the truth about the circumstances of their searches, with the result that evidence was suppressed.  Then the police made the great  discovery that if the defendant drops the narcotics on the ground, after which the policeman  arrests him, the search is reasonable and the evidence is admissible. Spend a few hours in the New York City Criminal Court nowadays, and you will hear case after case in which a policeman testifies that the defendant dropped the narcotics on the ground, whereupon the policeman arrested him.  Usually the very language of the testimony is  identical from the case to another. This is now known among defense lawyers and prosecutors as ‘dropsy’ testimony.  The judge has no reason to disbelieve it in any particular case, and of course the judge must decide each case on its own evidence, without regard to the testimony in other cases. Surely, though, not in every case was the defendant unlucky enough to drop his narcotics at the feet of a policeman.  It follows that at least in some of these cases the police are lying.

People v. McMurty, 314 N.Y.S.2d 194, 195-96 (N.Y. Crim. Ct.1970), (Younger, J.). “Dropsy” in 1970 has evolved into “consent” in 2010.  The more things change the more they stay the same.

Dropsy died overnight. Judges rejected the testimony as facially incredible, and, miraculously, there were suddenly no more dropsy cases. But, as one might expect, that wasn’t the end of the story, or the end of seizures.

Chances are fairly good that there aren’t many judges sitting on the bench today who were practicing criminal law back in the 1960s, or remember Irving Younger’s article in The Nation, or think about the dropsy cases and how they suddenly disappeared from the well.  They should remember, but it would likely make them feel sheepishly embarrassed at the rulings they give after suppression hearings, and no one wants to feel bad about themselves.

Judges have feelings?  Do judges suffer from low self-esteem?
Yes, Tiffany, even judges have feelings. They’re human too. Some more than others.

But judges should remember. And Chief Judge Gross is wrong that “dropsy” had evolved into “consent” in 2010. The Dropsy Days were an easy, breezy time, when the cops fixed liberal rulings with simple “white lies.” Times have grown more complicated, and the police have adapted. No matter how good your fastball, you need to change it up with a curve every now and then. Maybe even a spitball if the ump will let you get away with it.

Consent has been part of the arsenal since those early, immature days.  As has the ability to use the few provable facts combined with the unprovable, like the “poignant” smell of marijuana, or the omnipresent glassine handed off, as seen from 700 yards away through two buildings and a parked car. Whatever was needed, arose.

Yet here we are, forty-something years later, still approving convenient testimony that no one really believes to be true, because we haven’t come to grips with the Dropsy Days when Irving Younger explained to all that the police do not always tell the truth.

I first met her when she was working for New York City’s corporation counsel, defending the City against claims that police officers violated the civil rights of individuals.  She subpoenaed me to testify in federal court in a claim by my client.  She was nice enough about it, and understood that I wasn’t going to give her anything to use to hang my client.

Her first question to me before Judge Jed Rakoff was whether I was a “criminal lawyer,”  That was all I needed, and I went off correcting her, that I was a criminal defense lawyer, a very different thing.  Judge Rakoff enjoyed the repartee.  I did as well, as she played fair and honest.

Soon thereafter, she left the womb and hung out her shingle to represent those who had suffered at the hands of the police.  I welcomed her joining the side of the angels.  One of the things she chose to do was join the New York State Association of Criminal Defense Lawyers, because her fortunes where inextricably tied with what we do.  As a member, she joined the listserv.

Nobody told her, however, that she should put aside her healthy belief in ethics.  Just as she played fair and honest in the employ of the City, she was fair and honest in all her dealings.  It never occurred to her that her integrity, something that would maintain her in good stead during her years of fighting for good causes, would be the basis for her eventual vilification.

Rose Weber took umbrage with a lawyer on the listserv who asked a question, one that she believed any criminal lawyer should know the answer to, or at bare minimum should find the answer to rather than prevail upon others.  This is an ongoing issue on listservs in general, and the NYSACDL listserv in particular.  There are two schools of thought, one being that the listserv isn’t a substitute for personal responsibility, and the other being that it’s better that people ask then screw up.  My support goes to the former view, but that’s not the reason for this post.

After a skirmish broke out over the issue, Rose took a look at the website of the person asking the question and noted something troubling.  Yup, you guessed it.  It said she was “highly experienced.”  Two years out of school, both spent in the service of a nearby legal aid office.  Whether that constitutes “highly experienced” may be a subject of debate, as it’s a purely subjective assessment.  Some would (and did) argue that she earned that description in the trenches.  Others would disagree. Still this isn’t the point of this post.

As has been argued  here and elsewhere, and elsewhere, and elsewhere, and still elsewhere, one of the foremost problems confronting the legal profession in this age of technology and rampant self-promotion is the puffery, the deception, the over-hype that marketers, and marketing lawyers, employ to sell themselves.  While the ABA 20/20 Commission considers what, if anything, to do, many within and without the profession consider the internet to be an ethics-free zone, the place where lawyers are entitled to lie through their teeth about themselves, their abilities, their experience, to get clients and make money.

Rose Weber raised a question.  It was a good question, a right question.  Some may quibble about the context or manner or tone, but someone will always quibble about such things.  We’re no more likely to share sensibilities than common sense.  It’s just a diversion from the issue, that one person’s approach isn’t the way another would prefer it. 

And so I finally come to the point of this post, bearing in mind that Rose’s question was put out on the NYSACDL listerv.  She was vilified for having questioned the propriety of holding oneself out as more than she might be.  Put another way, deceptive marketing.

The important official voices of this bar association spoke out in unison, we don’t ask such questions.  The target of Rose’s question was furious, asserting that the listserv was a safe haven for criminal defense lawyers, a “member benefit,” where no one would ever challenge her or say anything that might hurt her feelings. 

The important official voices cried “hallelujah,” that this bar association existed to make its members happy, to embrace them no matter what they did, as long as they paid their dues.  But let me not put words in anyone’s mouth.  From Kevin O’Connell, the new president, only a few days in office:

This listserv should be a safe environment for a colleague to ask a question without fear of ridicule. While colleagues do sometimes ask pretty rudimentary questions, it is better that the question gets asked and answered than not….Attacks launched in this semi-public forum have a serious chilling effect of the flow of information.

Is there a problem with some of our colleagues puffing their qualifications? Clearly there is, but that is an issue that should be dealt with in another setting. Perhaps we should consider taking it up in a CLE event of some type…

Can we please get back to business?

And there’s the reaction of the immediate past president, George Goltzer, who, despite no longer speaking for the association, can’t find it within himself not to.

rose, i stopped speaking for the association three and a half days ago when i administered the oath to kevin o’connell. he speaks for the association now and just spoke very well.  a smiley face is sometimes better than vitriol. as for this important issue, i can think of more pressing problems plaguing our members than each others advertising.

Why would a bar association concern itself with such trivialities as lawyer deception when it can offer a smiley face?  After all, it’s hard enough to keep the slightly more than 200 members statewide paying their dues, and we all know that happy lawyers, even if liars, are more likely to pay dues than ones whose integrity is called into question.  Certainly, in the quest for bar association dollars, the ones used to pay for its ongoing existence in the hope that someday it will again serve a purpose as it did when its was formed, there is no higher purpose than appeasing any lawyer with an open checkbook.

Whether Rose Weber’s point was right or wrong isn’t the question.  That she challenged the propriety, the honesty, of claiming to be “highly experienced” within the “safe environment” is precisely what must be done to protect the integrity of the profession.  Maybe the lawyer had damn good reason to make her claim of experience.  Maybe not. 

But when the NYSACDL was formed, and some very hard-nosed lawyers fought long and hard for it to reflect the best that criminal defense lawyers could be, they screamed and yelled at each other, challenged each other, called each other some pretty bad names, all the time.  And nobody, but nobody, ever told anyone in the room to play nice and behave like good little boys and girls.  These were lawyers, and they argued their points, and they were honest enough to call someone out when they disagreed, and they were tough enough to handle a challenge.  These were lawyers, not smily faces.

So these important officials made Rose Weber the bad guy for having done the unthinkable, raised a pressing and justified question about the potentially deceptive marketing of another member of the club.  And for that, they vilified Rose.  Because, as Goltzer said, “i can think of more pressing problems plaguing our members than each others advertising.”  Like membership for its own sake, since it’s not like this bar association gives a damn about the integrity of its own little niche of the profession. 

Rose Weber did nothing more than raise a valid and important issue, and for that she was castigated by the important official people.  I may be neither important nor official, but I applaud Rose Weber for putting integrity on the table while other made clear they couldn’t care less.

Of course, that was  made clear before this happened.

* A note for the uninitiated. I was a board member and vice president of the New York State Association of Criminal Defense Lawyers, and twice resigned.  I am, and always have been, a huge supporter of what this association was and could be.  I am disgusted by what it’s become, and I’ve made that clear in word and deed.  This, in turn, has made me an outcast to some in the association, and the voice of reason and institutional memory to others.  If it didn’t matter to me, I would ignore its existence, but the criminal defense bar needs a strong, honest voice rather than a smily face.