In crafting a general list of things in which citizens had a right to be secure, nobody thought to include the word “email.”  Rather thoughtless in retrospect, but there were limits to even Jefferson’s prescience. 

While Congress and the courts have struggled with how to assure that our deepest thoughts would be subject to government scrutiny, just in case they were dark thoughts, the Sixth Circuit Court of Appeals has opined that our thoughts contained in emails, despite the hyper-technical path they follow as electrons through a maze of boxes and wires, are worthy of security.

Via Orin Kerr at Volokh Conspiracy, from the decision in United States v. Warshak :

Email is the technological scion of tangible mail, and it plays an indispensable part in the Information Age. Over the last decade, email has become “so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument[] for self-expression, even self-identification.” Quon, 130 S. Ct. at 2630. It follows that email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve. See U.S. Dist. Court, 407 U.S. at 313; United States v. Waller, 581 F.2d 585, 587 (6th Cir. 1978) (noting the Fourth Amendment’s role in protecting “private communications”). As some forms of communication begin to diminish, the Fourth Amendment must recognize and protect nascent ones that arise. See Warshak I, 490 F.3d at 473 (“It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in the past.”).

If we accept that an email is analogous to a letter or a phone call, it is manifest that agents of the government cannot compel a commercial ISP to turn over the contents of an email without triggering the Fourth Amendment. An ISP is the intermediary that makes email communication possible. Emails must pass through an ISP’s servers to reach their intended recipient. Thus, the ISP is the functional equivalent of a post office or a telephone company. As we have discussed above, the police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call—unless they get a warrant, that is. See Jacobsen, 466 U.S. at 114; Katz, 389 U.S. at 353. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement absent some exception.

Technology is here to stay, and every day brings yet another product to the market that alters our means of interacting.  Neither the law nor the courts have been, or will be, capable of keeping pace.  As we adopt new technologies, we do so under a generic assumption of normalcy, that we aren’t giving the government carte blanche to peer into our lives, words, thoughts or deeds.  We try not to think too hard about it, because we really don’t want to address what we fear to be true in the back reaches of our mind, that there is no privacy left.

The Warshak decision strikes a major blow against the machine, rejecting the electron path of Fourth Amendment analysis in favor of a Katzian approach.  We expect our private communicates to be private, and Warshak says that’s a reasonable thing to do.

The decision is based, however, on an unfortunately shaky foundation, noted in the emphasized language in the quote above, analogizing email to a letter or phone call.  While this would be the analogy I would chose if anybody asked me, the court could have just as easily adopted a different analogy and turned the decision upside down. 

Just as our “papers and effects” when contained in the electrons of our laptops have been analogized out of the 4th, so too could  our emails should the analogy focus on their being in the  hands of third party ISPs rather than our expectation of privacy. 

Orin is pleased with both the outcome and rationale of Warshak.

I think that is correct, for reasons I have explained before. Under the Court’s reasoning, then, 18 U.S.C. 2703(b) is unconstitutional at least in most applications– which, again, I think is correct. This is a very important opinion, and there’s a lot in there, but based on a first read it strikes me as quite persuasive and likely to be an influential decision going forward.

It’s hard to blame him, as this opinion comports with both his analysis of how electronic communications should be treated, as well as his  tech neutral approach to search and seizure law.  The gist is that courts should apply the jurisprudence developed since bootlegger says to new technology rather than reinvent the wheel.  He contends that, contrary to my skeptical assertions, this can result in a principled approach that maintains protections to our 4th Amendment rights against unreasonable search and seizure. 

I’ve contended that the exceptions have long since swallowed the rule, and importing bad law to new technology is tantamount to eviscerating the 4th Amendment before the technology is even invented.  I’ve also argued that winning the battle, under Orin’s approach, is little more than a game of rhetoric, the winning side being the one whose analogy either strikes the court’s fancy or best meets the judges’ luddite comprehension of the digital world.

Based upon the Warshak decision, it would appear my fears are unfounded, and that the court arrived at the right analogy, and therefore the right outcome, despite my cries that the sky could fall.  I’m unswayed.  It’s not that Orin’s theory hasn’t worked out in this instance; it has and it’s worked wonderfully.  Rather, one decision in one circuit is not a jurisprudence.

It’s not that the Warshak decision could be chalked up to the blind squirrel rule.  The opinion contains some wonderful language expressing what we need of a court protecting our notion of privacy.

It follows that email requires strong protection under the Fourth Amendment; otherwise, the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve.

Had this been where it ended, that our need to be capable of being secure in our communications without regard to how many digital hands held it, copied it, touched it, stored it and passed it along, this would be a different post.  What remains needed is an affirmative, unqualified holding that electronic communications, notwithstanding the mechanics of how they get from our fingers to our recipients eyeballs, are secure under the Fourth Amendment.

Whether this decision will hold up has yet to be seen.  Orin finds it persuasive, and because of its outcome, I certainly hope he’s right.  But emails aren’t the only technological issue confronting our courts, and praying that the right analogy is adopted hardly gives me the warm and fuzzies. The challenge of adopting historic search and seizure jurisprudence to new technology can’t be left to hit and miss analogy. 

We need to know that our electrons, our thoughts, our idea, no matter what form they take or mechanism they travel, remains ours.  We need better than a fortuitous choice of analogies to know that there will be some privacy left in a digital world.

Orange County deputy alternative defender (I likely got the position wrong, but feel confident that, if so, I will be swiftly corrected) Lee Stonum sent me an email to both make a point and vent a bit.  On the one hand, he came face to face with the Perpetual Listserv Conundrum: 

Stupid people ask stupid questions answered by other stupid people who either don’t have a clue or just make stuff up, making everyone the worse for participating.  I don’t want to waste my time by getting involved and enabling stupid people.

But, if no one who knows anything participates to help the stupid to learn the correct answer, then they will forever be stupid.

Columbia political science professor and HuffPo blogger, David Epstein, has been charged with incest. Information remains scant, though it’s been suggested that he’s engaged in a  three year sexual relationship with his over-18 daughter. 

Before you start gagging, Eugene Volokh raised an interesting, albeit gross, discussion about the problems with basing law primarily on the argument that it makes most people want to toss their cookies.  Accounting for the hard problems with incest, such as gene pool, offspring, control and coercion, what of, say, adult sibling choices where reproduction isn’t involved?  What about this makes it criminal?

Eugene’s point is that our disgust toward this conduct, which obviously can’t be denied or ignored, reflects our disgust toward other sexual taboos, such as interracial sex and marriage. 

Professor  Stephen Bainbridge stepped into the ring.

The arrest of Columbia professor David Epstein on charges of incest with an adult family member prompted my UCLAW friend and colleague Eugene Volokh to offer some typically erudite (but somehow abstract) thoughts on criminalizing such things. This in turn raised the question of whether law can ban something just because it is immoral, a point Eugene addressed here. Doug Mataconis then chimed in to argue that “the fact that there’s what might be called an ‘ick factor’ is not, by itself, sufficient justification to make the act illegal.”

 I have no problem with basing laws on the yuck factor, as I’ve explained before. Leon Kass aptly called it “the wisdom of repugnance”; i.e., “emotional expression of deep wisdom, beyond reason’s power to fully articulate it.”

While the “wisdom of repugnance” raises an interesting response, Bainbridge then blows his wad by relying on  Lawprof Ann Althouse’s gut.

Yuck. Double yuck. I want it banned and the harm principle can be damned. Do I have a reasoned analysis of how to fit the yuck factor into a coherent political theory? No. And I don’t care. Some things are just too yucky for a civilized society to tolerate.

It’s not that I don’t agree with the yuck, but that I’m disinclined to base crime-worthy conduct on the number of “yucks” issued by either Bainbridge or Althouse.  Do triple yuck crimes carry the death penalty?  Don’t answer that.

Kass’ “wisdom of repugnance,” however, offers a more rational explanation for criminalizing incest, giving permission to be disgusted by things despite the inability to articulate a rational explanation.  If society maintains a sense of disgust that is so broadly accepted, even if incapable of clear, logical articulation, shouldn’t that be sufficient?

Eugene responds to the Kass argument:

In fact, Kass’s New Republic article itself notes, “Revulsion is not an argument; and some of yesterday’s repugnances are today calmly accepted — though, one must add, not always for the better.” Kass of course goes on to argue that, “In crucial cases, however, repugnance is the emotional expression of deep wisdom, beyond reason’s power fully to articulate it.” But if we recognize (as I think we must) that some of yesterday’s repugnances are rightly accepted today, and that even today’s repugnances might be rightly overcome (which is Kass’s view with regard to nonmarket organ transplants), we can no longer simply rely on our repugnance. We have to reason about exactly why something might be harmful, and whether its harms are exceeded by its benefits (or by the harms of trying to criminalize it, which include both deprivations of liberty and expenditures of taxpayer money).

His ultimate point, whether the default position in cases where we all agree about the yuck factor but can’t put our finger on the harm, raises the critical issue:  Is the default position to criminalize things we all find yucky, at least for the moment, or should the default position be to suffer the yuck factor and not criminalize conduct unless we can articulate a particular harm to be stopped?

Weird how something that we would all rather not think about at all be turned on its head to match a sacred cow of criminal law, that conduct which causes no cognizable harm not be criminalized because of an excess of emotion and a dearth of reason. 

This situation more typically arises today when a tragedy strikes a child and legislators rush to enact laws to criminalize conduct already criminal or that wouldn’t impact the conduct under any circumstances.  We have little problem ridiculing such laws, and the cynical politics behind them.  Yet, an age old taboo like incest, carrying the weight of our collective repugnance, defies our ability to use only our rational brain.  The yuck factor is still there, no matter how hard we try to ignore it.

About the closest reasonable analogy can be found in homosexuality, which some still find too yucky to tolerate.  Many, hopefully most, heterosexuals have gotten past the yuck factor and accepted it.  Even though who haven’t have embraced it to the extent that it is no longer criminal and requires imprisonment.  For the benefit of you young-ins, yes, years ago people did find homosexual conduct to be that yucky, and it was a broadly held view in society sufficient to invoke the wisdom of repugnance.  And now it’s not.

By no means does this suggest that I find incest, in any variation, acceptable or less than utterly repugnant. Sorry, but I’m not the broad-minded a person.  But if we’re busy thinking, then we can’t help but do it right, and Eugene has given us cause to do some of the very hard work that make our heads hurt.  And it’s not very good for our stomachs, either.

It takes a special sort of fellow to wrap himself up in authority in order to beat the daylights out of another guy.  But what if it’s a woman?

From the Gothamist :

Ann Stanczyk, 49, was walking her terrier Psotka (Polish for prankster) near her home in Rockaway Beach on the Friday after Thanksgiving when two NYPD officers took a special interest in her dog’s business. She claims that two cops approached her and ordered her to scoop poop that wasn’t Psotka’s, and after she begrudgingly complied, they violently arrested her for talking back.

“I started to scream, ‘My dog! My dog!'” explains Stanczyk. “They punch me in my face. They punch me in my breast. They punch me in my stomach.” It’s also unclear if the poop was entered into evidence.

According to court papers obtained by the News, Stanczyk was accused of “causing a ruckus by yelling at the officers to leave her alone.”

Here’s the rub, regardless of whether Stanczyk was “causing a ruckus,” and who wouldn’t as the police were beating you, or whether they initiated the tuning up to teach her a lesson in public health, what sort of cops felt compelled to do this to this woman?

The obvious presumption that is that Stanczyk failed to demonstrate due respect for the officers’ authoritah, contempt of cop as it’s known.  We certainly can’t have woman denying that their dog pooped when police think otherwise.  Nor can we have women complaining to officers that the have fallen short of that “protect and serve” stuff written across the side of cruisers.  That could seriously impair their branding, and diminish public respect for the police. It’s no longer about dog poop, but about sustaining our way of life.

So if she spoke to the officers in a somewhat disrespectful tone, regardless of the tone used by the officers to tell her to shut up and do as she’s told, one can easily see why the officers felt constrained to take action to assure that their shields were respected and the quiet and peace of Rockaway Beach was restored.

But what kind of man beats a woman like this?  Tell us, Officers Shaun Grossweiler and Richard DeMartino.  What kind of man beats a woman like this?

The “us vs. them” mentality that sustains a police officers ability to overcome the limitations of normalcy and human restraint and act against another person without remorse requires them to dehumanize others.  There is no way that a normal person can simply beat another, inflict this sort of injury with his hands, without seeing that other person as something less than human.

While we often ignore it, or excuse it, when the person beaten is described as some heinous criminal, it cannot be rationalized when it’s a woman, about whom the worst one can claim is that she failed to scoop poop.  It is not acceptable, excusable, explainable.  This is the product of a sick mind.

And the  complaint against her was ACD’d.  You might think this is because she hadn’t suffered enough to deserve an outright dismissal, but the underlying reason is more likely that an ACD is not considered a termination in favor of the accused, just in case she might want to sue for her beating.

American corporations doing business overseas are subject to certain limitations, like the Foreign Corrupt Practices Act.  And then, maybe restrictions like enabling mind-bogglingly sick sexual abuse of little boys.  Via  Randazza and  Bennett, courtesy of Wikileaks, security contractor DynCorp provides some insight into how it networks and  genuinely engages :

Bacha boys are eight- to 15-years-old. They put on make-up, tie bells to their feet and slip into scanty women’s clothing, and then, to the whine of a harmonium and wailing vocals, they dance seductively to smoky roomfuls of leering older men.

After the show is over, their services are auctioned off to the highest bidder, who will sometimes purchase a boy outright. And by services, we mean anal sex: The State Department has called bacha bazi a “widespread, culturally accepted form of male rape.”

DynCorp, whose revenues are almost entirely paid by Uncle Sam, was contracted to recruit and train Afghanis to be police.  What better way to draw the right sort of folks than throw a party?  And obviously, half their training would already be accomplished with the proper inducement.

According to the cable published by the  Guardian UK, the Minister of the Interior, Hanif Atmar, needed the United States’ help in quashing any reporting of these bacha bazi parties.  It just wouldn’t look good.

Beyond remedial actions taken, we still hope the matter will not be blown out of proportion, an outcome which would not be good for either the U.S. or Afghanistan. A widely-anticipated newspaper article on the Kunduz scandal has not appeared but, if there is too much noise that may prompt the journalist to publish.

Certainly the anal rape of young boys at a party thrown by an American contractor to recruit Afghan police would reflect poorly on somebody.  Then again, the concealment of this happening reflects poorly on everybody, but only once it becomes publicly known. 

Atmar said he insisted the journalist be told that publication would endanger lives. His request was that the U.S. quash the article and release of the video. Amb Mussomeli responded that going to the journalist would give her the sense that there is a more terrible story to report. Atmar then disclosed the arrest of two Afghan National Police (ANP) and nine other Afghans (including RTC language assistants) as part of an MoI investigation into Afghan “facilitators” of the event. The crime he was pursuing was “purchasing a service from a child,” which in Afghanistan is illegal under both Sharia law and the civil code, and against the ANP Code of Conduct for police officers who might be involved. He said he would use the civil code and that, in this case, the institution of the ANP will be protected, but he worried about the image of foreign mentors.

As noted, this conduct violates both Sharia law as well as the Afghan civil code.  Nor, it appears, is it universally considered an acceptable thing to do.  But the fact remains that good ol’ DynCorp, whose base of business operations in the United States is in Dallas/Fort Worth, threw a little party and then needed some political muscle to cover it up.  DynCorp  denies any impropriety and says it’s all a big misunderstanding.

According to a DynCorp’s VP of communications, Ashley Vanarsdall Burke,

the company has beefed up its ethics in many ways including enhancing their code of ethics and business conduct; reviewing, revising and strengthening the company’s business practices; hiring a chief compliance officer; and setting up a 24-hour hotline for whistleblowers and a training program that focuses “specifically on behaviors that support successful teams.”

Burke granted that no “company can guarantee that their employees will behave perfectly at all times, under all conditions,” but said that the company can guarantee that expectations will be clearly defined, employees will be trained to adhere to those expectations, and people will be held accountable. “We will also act swiftly and consistently if shortcomings are identified,” which they did do in the wake of this traditional dance gone apparently awry.

So maybe then they won’t have to ask the Afghan ministry of the interior or the State Department to cover it up under the guise that revealing parties where little boys are anally raped would “endanger lives” if disclosed? 

But you probably know all this, having heard all about it in the big exposé in the newspapers and on TV.

Update:  From Mike Cernovich, here’s the Frontline program about the bacha bazi, the dancing boys of Afghanisten .

Attila Adam is a film maker in Los Angeles working on a short film on prisoner re-entry, June Gloom, in need of some angel support.  He had the good sense to ask Lawprof Doug Berman at  Sentencing Law & Policy if he would mention the project in the hope that someone might care and contribute.

Notably, for the seemingly bargain price of only a $500 supporting pledge, one can get executive producer credit on this film. I wonder if readers and regular commentors like Bill Otis or federalism or Supremacy Claus or others will be interested in having their names on the big screen. Better yet, perhaps readers can pool pledges and we can have this blog’s readers listed as a executive producer. Seems a small price to pay for a good cause and for having one’s name on a movie, no?

It hardly seems necessary to discuss why prisoner re-entry remains a huge problem, with budget shortfalls, offender registries and the societal rejection of the notion that any prisoner’s debt is ever repaid. 

But Doug does a very interesting thing, taking a good cause to a curious place.  For those who have so much to say, often strident and sometimes bizarre, let’s see if the strength of their convictions meets the depth of their wallet.

Here’s the shocking punch line:

Ever the interesting fellow, (in)famous regular commentor Supremacy Claus wrote to me to report that he was going to make a $500 pledge and was going to do so in my name so that I would get executive producer credit.  For this kind gesture (which is now reflected on this June Gloom blog), I am awed and grateful.  And I have now added another $100 pledge (and provided that the goodies that come with this pledge go to SC).

For those unaware, Supremacy Claus has been one of the louder, more outrageous commenters in the blawgosphere for a very long time.  He’s made his way around the blawgs, usually being quickly banned for his hatred of lawyers, judges and the legal system, which he argues is a vast conspiracy designed to subjugate the citizenry.  If I recall correctly, he lasted here about two days.

Berman, on the other hand, let SC have his moment in the sun and there he’s stayed, often to the chagrin of other commenters.  No doubt it’s been a disruptive experience, but Doug has been tolerant.  More so than anyone else.  And he’s now been rewarded with executive producer credit on Supremacy Claus’ dime.

While $500 doesn’t make inanity any less troubling, it does do one thing of worth.  It shows that as wacky as Supremacy Claus may be, he’s not just blowing smoke up the butt of the blawgosphere.  To his enormous credit, he’s put his money where his mouth is.  Not too many people around here do that.

Obviously, every reader isn’t in a position to kick in money every time a good cause comes around.  There are a lot of good causes, and not always a lot of money.  But then, for those who feel very strongly about something, so strongly that they can’t control themselves and must, absolutely must, speak their mind, the value of your beliefs would be greatly enhanced if there was more demonstrative evidence of your views.

Though I know not everyone is a huge fan of how Supremacy Claus sometimes seeks to take over the comment threads, I think everyone should be a huge fan of his efforts in this context. And if merely 1/10 of all the readers who dislike SC’s comments would simply make a pledge of 1/10 of what SC put up on my behalf, the June Gloom film would have extra resources for final production and promotion. (As I noted before, the  minimum pledge to support this project is a mere $10, and I hope a lot of readers might consider themselves able to pledge at least 2% of what Supremacy Claus put up.)

Hey, if SC can cough up $500 to make Doug Berman the executive producer, a 2% contribution wouldn’t break you.  Is it worth $10 (or more) to show that you’re not just tough talk?

Bernie Madoff’s oldest son, Mark, has taken his own life.  Some questions:

Bernie Madoff:  Was the scheme, the grandeur of living the life of a wealthy man, worth the price?

United States Attorney, Southern District of New York:  Did you intend to exact the death penalty in your zeal to push the envelope as far as you possibly could?

Media: Are you satisfied that your unquenchable thirst for salaciousness, to suck every drop out of the Madoff story, finally produced something truly disgraceful?

Irv Picard:  Has Baker Hostetler earned enough yet?

Us: When is enough enough?  Do we ever reach the point where we are sated?

If only lawyers didn’t have kids who expect to eat every day, we could serve the greater good for free.  Alas, we have to pay the dinner bill just like everybody else.  It sucks, but that’s the deal, which is why lawyers who defend the indigent submit bills.

From the Buffalo News :

It may cost Niagara County taxpayers an estimated $64,000 to provide legal defense for the convicted killer of youth counselor Renee C. Greco.

Robert M. Pusateri, administrator of Niagara County’s conflict defender and assigned counsel office, disclosed the figure to a County Legislature committee Tuesday.

He said that E. Earl Key, the court-appointed defense attorney for Anthony J. Allen, had told him he would submit a bill for more than $40,000 for himself and cocounsel Samuel P. Davis.

Expert witnesses called by Key and Davis in the trial cost $17,241, and Key spent $4,368 on court transcripts and statements, Pusateri said.

Does $64 grand seem like a lot of money for a murder defense?  Not from where I sit, but then, it’s not like I’m inclined to believe that money spent on the legal fees for the defense of an accused is money wasted.  I could be biased in this regard.

The bill will be sent to our favorite upstate jurist, Sara Sheldon Sperrazza, the one who approves of cops getting folks to be compliant at the end of a Taser and that the solution to the marijuana problem is to banish defendants from Buffalo, for her approval.  She could cut the bill without explanation because, you know, she just could.

It’s not easy getting to the $40k mark on 18B rates of $75 an hour.  That’s a lot of hours, and those hours spent on the defense of Anthony Allen were hours that couldn’t be spent elsewhere, whether on the defense of a paying client or in the backyard playing ball with the kids.  Either way, they come from somewhere and were used up on defending a client.

Of course, defendant an accused murderer, especially now that he’s convicted, isn’t the sort of expense that taxpayers tend to appreciate.  Allen was convicted, for crying out loud.  A complete waste of money defending a murderer, right?

The problem was that they had to use Earl Key to defend because of conflicts with the local public defender.  There was a co-defendant, and he needed a lawyer too, and then the conflict-defender ended up with a conflict of his own.  What’s a county to do to save money?

Legislator Dennis F. Virtuoso, D-Niagara Falls, said the county should try to borrow public defenders from other counties in such cases.

That’s because all those other counties have gaggles of public defenders sitting around with nothing much to do, just in case a neighboring county wants to save money on its murder cases.

What’s striking is that at least one lawmaker, a person duly elected to make sound decisions on behalf of his constituents, has absolutely no clue that public defenders are not merely sitting in the courthouse eating bon bons, but overwhelmed (and underpaid) with the work on hand.  Imagine the speech he would give in the state legislature about how the counties could save a bundle if they only used their spare PDs to cover the gap when some murderer absolutely had to be defended (darn that law thingy).

But then, it’s certainly a lot easier to just borrow some spare public defenders from a neighboring county than either covering the responsibility of defending those accused by your own PDs, or paying the freight of 18B when the law mandates. 

H/T Our hinterlands correspondent, Kathleen Casey

Hate him.  Fear him.  It’s people like him who can destroy life as you know it.

Keith Fitzhugh is his name, and he has done the unthinkable.  He has forsaken the opportunity for a moment of fame and glory, a chance at quick and dirty celebrity, and has chosen to be a responsible, hard-working adult instead.  Damn you, Fitzhugh.

From The Gothamist:

On Monday night, the Jets were pulverized by hated rivals the New England UGG Spokesmen in their worst performance of the season. What was initially billed as the battle for AFC supremacy turned into a Foxboro Massacre as tackles were routinely missed, the offense was non-existent and defense players went down with injuries. And proving how much bad luck the Jets seem to be having right now, even the journeyman safety they offered a roster spot to gracefully rejected them.

The player in question, Keith Fitzhugh, was an undrafted rookie in 2009 who spent time on the team’s practice squad last year and in training camp with them this year. The Jets front office called him yesterday afternoon to offer the spot, having lost two safety’s to injury already this season. Of course, Fitzhugh didn’t reject the team because of their poor play on Monday. As he told the NJ Star-Ledger, he has a stable job with health benefits as a conductor with Norfolk Southern railroad outside Atlanta, and he is the breadwinner in the family now.

Has he never heard of Kim Kardashian or Paris Hilton?  Does he not realize that there is no higher goal in the scheme of slackerhood than to become an overnight celebrity?  He could have been a contender.  Instead, he’s employed.  What is he thinking?

While many millennials find it difficult to hear the harsh words that there are choices in life that need to be made, good and bad ideas that need to be considered, because they function under the misguided belief that they can do whatever makes them happiest at the moment, entitled to success regardless of whether they take the hard road or the easy one, not every kid is a Slackoisie.  Some, like Fitzhugh, make hard choices, and they chose responsibility to themselves and their family.

It would be nice if his employer, Norfolk Southern, would give him a some time off to see if he’s got the juice to play safety for the Jets.  But even that is risky, as he could come back brain-addled and broken, and not much use to the railroad or anyone else. 

Note the risks: 

As NBC points out, Fitzhugh’s story points to the hardships of life in the margins of the NFL: “We forget sometimes how short professional sports careers tend to be on average because all of the focus goes to the guys who make big money over long careers…[their] concerns — health insurance, financial security and the like — are exactly the same as they are for most of the rest of us.”

It could have been a once-in-a-lifetime chance at greatness.  Or the quick trip to the emergency room, since for every 12 year player there’s a guy whose career is over in three months.  Keith Fitzhugh chose to be a responsible human being, to take care of the things that mattered most to him rather than sacrifice those he loved for the chance at his personal moment of greatness.

So if you see him, stay away.  It could be contagious, and you certainly wouldn’t want to catch responsibilities and priorities that could interfere with your entitlement to fame and fortune.  After all, there’s no cure.

Whether it’s happened to any other crime lab in the nation is unknown, but for the moment at least, the Nassau County, New York, crime lab is the only one placed on probation by the accrediting agency, The American Society of Crime Laboratory Directors/Laboratory Accreditation Board, in the country.  We are number 1, HEY!

You might suspect that the head of the lab, Nassau County Police lab director Det. Lt. James Granelle, would proudly announce his distinction when he learned of the honor last November.  But no, according to the Wall Street Journal, which bought him a reassignment.  Naturally, nobody mentioned its failures to all the defendants whose cases depended on the lab’s integrity.

Melendez-Diaz decision, requiring the prosecution to produce the lab tech as a witness per Crawford to introduce the testimonial report if the defense demands, appears to be overwhelming critical in the scheme of keeping this critical even close to honest.  The decision is at huge risk of reversal, with states (not New York, mind you) whining that it’s too expensive and unwieldy to force them to produce living, breathing witnesses.  As far as they are concerned, the piece of paper that says “GUILTY” is good enough to put someone in prison forever.

While cross-examining a lab tech isn’t necessarily likely to result in him breaking down on the stand, admitting that he fudged the tests and fabricated the report, it remains the only way to test the reliability and veracity of lab reports.  To be confronted with a conclusory and self-serving piece of paper is worthless for the purpose of testing its reliability, and the historic argument that these reports are sacred is now shown to be nonsense.  Labs can fail.  Their reports can be false.  Pieces of paper alone are evidentiary garbage.

Professionalizing the labs is but one of many, many changes that are desperately needed in creating and maintaining the integrity of scientific evidence in court.  One change that is no longer subject to dispute is that labs must be independent.  Just ask Lt. Granelle, who somehow didn’t see any problem at the Nassau County lab.  But this is just a start.  Other changes, like actually using testing that’s scientifically valid and verifiable, would be nice too.

It happened in Nassau County.  It could happen where you practice.  The point is, it happens.  Never assume that its true just because the lab says so.