Some say it’s hard enough to be a criminal defense lawyer these days, what with the law becoming increasingly unfavorable, paying clients harder to find and the public unsupportive.  But consider whether your day in the trenches was as bad as Orleans Parish Public Defender Stuart Weg’s.

[Weg’s] arrest in Judge Ben Willard’s Section C on Dec. 4, 2009, when the public defender said he couldn’t believe Willard would not order the release of a man wrongly arrested because his name was similar to the suspect.

The man, Tyrone L. Claiborne, had been in jail for 10 days when Weg demanded his release.

“Go find Tyrone,” Willard ordered Weg, according to a transcript of the hearing included in Weg’s lawsuit.

Weg was booked by deputies with battery, criminal trespass and resisting arrest. The charges were dismissed in March.

The problem was that Tyrone L. Claiborne was the wrong guy, and the prosecution conceded the fact.  Most would anticipate a judge to find the error a good reason to release the defendant.  Not Judge Willard.

The dust-up took place over Willard’s resistance to release a man after prosecutors determined he was wrongly arrested.

The man, Tyrone Claiborne, had been mistakenly arrested on a warrant meant for a man with the same birthday named Tyrane Claborne. The wanted man had failed to pay his fines and fees while in the Section C drug court after pleading guilty to attempted heroin possession with the intent to distribute. 

Tyrone,  Tyrane.  An easy mistake to make,  After all, it’s not like they get the name right on the first few tries anyway.  But there remained a kink.

According to Weg, Willard asked whether the two men were related. “Upon discovering that the two are brothers, the judge declared that the matter was a ‘family affair’ and that he intended to continue holding Tyrone L. Claiborne until he… could cause his brother to appear before the court,” the lawsuit says.  

As long as they have Tyrone in a holding cell, it would be a terrible waste not to find out where brother Tyrane is hanging.  And if Weg wanted his guy out, let Weg get the story from Tyrone about Tyrane.  What’s so hard to understand?  Yet Weg took issue, for no better reason than Tyrone not being Tyrane.  That’s when things got bad.

In the Municipal Court gist, a deputy wrote that Weg “turn(ed) around and struck” the deputy and refused to leave.

Weg was taken to the ground during the incident, the suit says, and a deputy identified only as S. Livingston “positioned himself on Weg’s back and placed Weg in a chokehold around his neck.”

Another deputy, called E. Gray in the suit, “then hit and kicked Weg about his head and body as he lay on the court’s anteroom floor, causing him to suffer bruised ribs and other injuries.”

That’s the dust-up, which must be the New Orleans way of describing a kick in the head from a deputy.  Charges were brought against Weg for battery, criminal trespass and resisting arrest, but were subsequently dismissed.

Every lawyer is taught to obey the judge’s order now, appeal later.  The rule, however, presumes that judges don’t engage in an utterly unquestionable abuse of power by holding a concededly innocent person in custody for a completely improper purpose.  It makes for a very hard choice.  And a good kick in the head and ribs makes the choice even harder.

Perhaps Weg should have realized the potential for problems with Judge Willard.

After the incident, [Orkeans Parish Chief Public Defender Derwyn] Bunton sent a letter to the state judiciary commission reporting that Weg was the second public defender physically removed from Willard’s courtroom in 2009.

So stop complaining about how tough it is in your courtroom, and be happy that you don’t have to practice in Judge Willard’s.  Or have the grave misfortune of being concededly innocent there without a lawyer like Weg beside you.

H/T Packratt

Arguably, the most important piece of office equipment to a lawyer defending against accusations of financial crime in federal court is a calculator.  Not a fancy one, with sine, cosine and tangent, but your basic model, provided it’s got enough room on the screen for lots of zeroes.  That’s what we used to figure out what the government is talking about when it comes up with the bizarre and outrageous loss calculations tossed out to the judge at arraignment and again at sentence.

Bruce Karatz, former CEO of KB Homes,  found that out when he saw the government’s response to the calculations by his probation officer in the presentence investigation report.

On Wednesday [meaning today], the former chief executive is scheduled to be sentenced in Los Angeles federal court for his April conviction for fraud and making false statements in connection with an options-backdating scandal. Karatz, who the government alleges tried to make nearly $11 million from backdating, has denied wrongdoing and plans to appeal his conviction.

The U.S. Probation Office, an arm of the courts, has recommended that Judge Otis Wright give Karatz probation and eight months of home confinement. But the U.S. Attorney’s office wants a 6.5-year prison sentence.

A key issue in the case revolves around how much financial loss KB Home and its shareholders suffered. The Probation Office believes there was no loss. Prosecutors argue that the $11 million, representing gains Karatz made or hoped to make at KB Home’s expense, qualifies him for a multiyear prison term.

It’s unusual that the PSR rejected the government’s loss calculation, and this reflects either a great effort on the part of Karatz’s counsel or a particularly independent probation officer.  Calculating loss is required under the fraud table of the Sentencing Guidelines, but how one calculates loss is another matter.

The idea that the loss caused by fraudulent conduct be actual loss, the net amount of money gained as a direct result of the conduct, is archaic.  Actual loss is often tiny, even non-existent, in most cases, and that does the government no good at all.  The loss amount is used to determine the guidelines sentence, and by coming up with a loss in the multi-millions, if no billions, the government wields a huge club over the head of a defendant, forcing a choice when deciding to roll the dice and fight, of staring down decades in prison if the court adopts the government’s calculations.

The dispute is part of a growing debate over whether the sentencing system for white-collar crimes has come to rely too heavily on calculations of financial losses to fraud victims. Under the sentencing guidelines, legal experts say, an executive of a large public company convicted of a crime like securities fraud could be sentenced to life imprisonment on a first offense.

Pretty much anything a senior executive in a public company does will give rise to ramifications, to even the most unimaginative prosecutor, in the millions of dollars.  Spend $100 on a half decent lunch to befriend the decision-maker on a foreign contract, and bear the gazillion dollar consequences of the revenue derived from the contract over ten years, replete with assumptions of market hegemony.  Forget the cost of the meal.  Forget even the cost of performance of the contract, or market share.  Assume only revenue, with terms so favorable that your favorite deity would be asking for a job, and every person in the world signing up for your service, and then we’re talking loss.

It’s not that the government’s overzealous calculations necessarily turn judges’ heads.  Judges often have a far better grasp of the real loss than do prosecutors, who have little, if any, understanding of business, and whose flights of fancy can be ludicrous.

But some judges are balking. Last month in New York, U.S. Judge John Gleeson gave a convicted securities swindler five years even though the guidelines called for 17 to 22 years. “Here in the trenches where fraud sentences are actually imposed, there is a more nuanced reality,” he wrote.

But you can’t count on it, either.  Post-Enron, when Congress responded to public outcry and trebled the guideline sentences for corporate fraud because it got congressfolk elected, there were plenty of judges who felt the pain inflicted upon thousands of people by the greedy fraudsters.  Screwing with loss calculations was one way, an easy way, to jack up sentences to meet expectations that these criminals would suffer long and hard for what they did.  Some judges generally accept the government’s accounting.  It’s the new GAAP.

But not every financial and corporate crime meets the Enron and Madoff bar.  Many are trivial in themselves, often without any discernible harm to anyone, except through rhetorical gamesmanship and wild speculation.  Yet sentences equivalent to murder are in the offing.  I can’t tell you how many times I’ve heard a corporate executive mutter, “it’s not like I killed anybody.” 

The play for sympathy, ironically, is on the government’s side when it comes to loss calculations.  This is what they  had to say about Karatz:

The U.S. Attorney’s office here wants a 6.5-year prison sentence. In a filing, the prosecutors argue that confining Mr. Karatz in his “24-room Bel-Air mansion,” would suggest “a two-tiered criminal justice system, one for the affluent….and a second for ordinary citizens.”

A 24 room Bel-Air mansion (and no mention of the cost of his shower curtain)?  Well, clearly he should go to prison instead.  It’s not like he studied hard to get into good schools, worked hard to make his way up the corporate ladder.  Served well to achieve the position of CEO.  And was very well compensated along the way.  After all, it’s a crime in America to be successful.  Or so the government contends when it uses its very own version of GAAP to calculate loss under the guidelines.

There’s a reasoned debate over whether it makes sense, in a flat world or even just a flat nation, to license lawyers to practice on a state by state basis.  Federalism be damned, the lines frequently blur and the calls for help come from all corners of the United States. 

Granted, one can always travel pro hac vice, provided you find a local lawyer willing, for a fee, to offer his office as a mail drop and messenger service, and some occasional pronunciation advice (do you say vore dyer or voir dire?), but the situation in New York has long remained static.  We don’t get reciprocity because we don’t give reciprocity. 

Until now.  From the New York Law Journal :

Leaders of the New York State Bar Association have asked the Court of Appeals to permit in-house counsels who have a “continuous presence” in New York to be authorized to practice law here without having to pass the state bar exam.

The House of Delegates, meeting Saturday at the group’s Albany headquarters, approved a resolution asking the New York Court of Appeals to add a new Part 522 to its rules to create a registration requirement specifically for in-house counsel.

While relieving in-house counsels of the bar exam requirement and the Appellate Division character and fitness tests to see if they are in good professional standing in their home states, the new rule would require them to pay New York’s biennial $375 lawyer registration fee, to meet the state’s continuing legal education requirements and to be subject to New York’s disciplinary rules.

So how many of you will rush out to mail their NYSBA dues check immediately, now that you know that  the NEW YORK State Bar Association has stood up for the rights of lawyers from elsewhere to practice in New York?  Not all lawyers, of course, but only in-house counsel, because when a lawyer works for a corporation, that changes everything about his familiarity with New York law and competency to practice law.  No really, as explained by the NEW YORK State Bar Association president.

Stephen P. Younger, president of the state bar, said the recommendation, if adopted by the Court, would address an area of “major concern” at large corporations, namely, whether their in-house counsels in New York are engaged in the illegal practice of law when they advise their executives.

“This is about maintaining New York’s place as a center for national and international business and with encouraging companies to come here without worrying that their counsels are practicing illegally,” said Mr. Younger, of Patterson Belknap Webb & Tyler.

Because it’s not like we don’t have any lawyers admitted to practice in New York who could do the lawyering piece.

Wait a second, you say.  That statement smacks of protectionism.  That statement smells like you’re (I’m) advocating to keep foreign lawyers out so that the lawyering in New York is done by lawyers admitted to practice in New York.  Hah, you say, Greenfield is a protectionist!

“Hah!,” I say back at you.  I’ve set you up and you didn’t even see it coming. 

The principled rationale for state by state admission to the bar, assurance that anyone purporting to represent or provide legal advice to another, is competent to do so, doesn’t admit to an exception for a discrete group of attorneys based solely on the nature of their employment.  Are lawyers imbued with super-competence by virtue of being hired by a corporation as opposed to anyone else? 

This is a result-oriented proposal, designed to improve the corporate climate in New York at the expense of New York admitted lawyers.  It does not, by any metric, assure that a lawyer admitted in, say, Florida, is competent to advise on New York law.  Quite the contrary, it ignores the issue altogether. 

[NYSBA committee chair, Joseph E.] Neuhaus said statutes on the unlawful practice of law are “unclear” and there is not enough case law to clarify the issue.

“Nobody thinks that [serving as in-house counsel in New York for] one week is practicing law,” said Mr. Neuhaus, of Sullivan & Cromwell. “The issue is not having a transitory presence. The issue is having a continuous presence. We are talking about someone who was transferred here for two of three years.”

Of course, if they transfer here for years, then they certainly have the time and opportunity to take the bar here as well.  But that’s not what this is all about.

New York would require a reciprocity agreement with another state or country allowing New York lawyers to be admitted for the practice of law under similar circumstances.

Aha!  So the give-back is that other states, once New York has opened the door if only slightly, will reciprocate and let New York admitted lawyers pretend they have a clue about the laws and norms of other jurisdictions.

According to the committee on attorney conduct, 44 states and the District of Columbia have adopted rules permitting out-of-state lawyers employed by in-state entities to practice locally. In addition to New York, the states without reciprocity agreements are Hawaii, Mississippi, Montana, Texas and West Virginia, according to state bar officials.

Of course, the only group of lawyers to benefit from this measure happens to be in-house counsel.  While other states offer reciprocity of admission to all lawyers coming from states that do likewise, New York isn’t one of them.  Maybe this is the start of a change of direction for New York, recognizing that lawyers shouldn’t be married to only one state in their practice of law given that our country, our world, has grown increasingly flat.  Or maybe this reflects a discrete concern of the New York State Bar Association to favor in-house counsel.  Either way, it won’t do us a lick of good.

Florida, on the other hand, would never consider recognizing a New York lawyer’s admission as being worth spit, since that would mean every semi-retired New York lawyer would hang out a shingle in God’s Waiting Room while playing a round of winter golf.  At least they understand the true meaning of protectionism, a very principled rationale.

Steve Landsburg, an economics professor at University of Rochester, posts a Law School Admissions Test at his blog, Big Questions.  It comes in two parts, the first being the “test” itself.

Here I have a couple of urns. The one on the left contains 70 red balls and 30 black. The one on the right contains 30 red and 70 black.

While you weren’t looking, I reached into one of these urns and randomly drew out a dozen balls. As you can see, 4 of them were red and 8 were black.

 

 

Here are three questions that I think you ought to be able to answer if you want to be in the business of assessing evidence:

1. If you had to guess, which urn would you guess I drew from?
2. What’s your estimate of the odds that you’re right?
3. Do you think you’re right beyond a reasonable doubt?

Stop here.  Without overthinking the problem, the answer should be reasonably clear, because probability is what it is.  But Landsburg’s point isn’t about probability.  In his second post on the test, Landsburg recounts the reaction from some lawyers at a cocktail party.  One lawyer chose the counterintuitive route, which the others rejected.

The other lawyers all agreed that this was not a very rational thing to do — that the evidence was in favor of the right-hand urn.

“But by how much?” I persisted. After a while a consensus emerged: The evidence is meager; the odds might go up from 50-50 to 55-45, but “…as lawyers we are trained to be skeptical, so we would slant our best judgments downward and act as if the odds were still roughly 50-50″.

The correct answer is about 98%. Yes, the balls were drawn from the right-hand urn beyond a reasonable doubt. This story points out the fact that most subjects vastly underestimate the power of a small sample.

Notice where he slides seamlessly from statistics into the abyss?  I’ll repeat it in case you missed it:

The correct answer is about 98%. Yes, the balls were drawn from the right-hand urn beyond a reasonable doubt.

Landsburg has put the likelihood that a defendant committed a crime sufficient to overcome reasonable doubt at 98%.  You might think he pulled this number out of his butt, but he didn’t.  His put his statistical skills to good use in a different arena, citing to one of my favorite law review articles ever, Alexander “Sasha” Volokh’s “n Guilty Men,” 146 U. Penn. L. Rev. 173.

While 10 guilty men might indeed be the industry standard, the legal scholar Sasha Volokh has documented a long tradition that encompasses a wide range of numbers, some as high as 100 or more. It is difficult for me to believe that the largest of those numbers were ever meant to be taken seriously.

Seizing upon the ancient aphorism, an example of a concept memorialized in a variety of expressions to encompass the idea that we do not accept the conviction of innocents as the price for conviction of the guilty, Landsburg has taken them literally and used the 10 to 1 ratio as the measure of collateral damage.

While acknowledging that 98% suggests that some of those convicted are in fact innocent, and in a nation where so many are convicted, that’s a whole lot of people, he further explains (for the benefit of lawyers, I trust) that it’s not quite a straight two percent who are not guilty.

One commenter suggested that if we adopted a “98%” standard, then 1 out of every 50 people on death row would be innocent. That’s not true, because under that standard, we’d convict everyone who’s 98% sure to be guilty plus everyone who’s 99% sure, plus everyone who’s 99.5% sure, and so forth. So among the entire convicted population, the fraction of innocents would likely be well below 2%.

So rather than 2% of our convict population being innocent, statistical progression suggests that it would “likely be well below 2%,” a surprisingly imprecise expression given Landsburg mathematical bent.

Lest we think Landsburg a hardcore badge-licker, he offers some basis to suggest that his numbers far exceed what we’re staring at from jurors already:

Indeed, I learned from yesterday’s comments [based upon Wikipedia] that as an empirical matter, potential jurors appear to set their cutoff for conviction at something like 70-74% certainty.

70-74% certainty sounds like roughly the right standard to me in a world where the police can be counted on not to take advantage of that standard by falsifying evidence against people they don’t like. Given that prospect, though, I think I prefer something a little tougher — though not as tough as 98%.

With this background, I offer my Law School Admissions Test: Why is Professor Steve Landsburg completely wrong?

H/T Eugene Volokh

I’m ashamed to admit it, but I haven’t kept abreast of trends in polygamy.  I know, but I’ve got one wife and the idea of having more would make my head explode.  If you’re like me, however, fear not.  Jonathan Turley provides all you could possibly want to know, and more, about what’s happening in polygamy these days. 

Turley, “lead counsel for the cast of the TLC reality TV show ‘Sister Wives’ on possible polygamy charges in Utah,” is going international as an expert in polygamy, providing an affidavit “as a legal expert in the polygamy case before the British Columbia Supreme Court — a case that is being watched closely around the world.”  As an aside, isn’t it always the unassuming professorial types who turn out to be oddly knowledgeable about cutting edge sexual relationships?  Just saying’.

The affidavit itself it a brief two-pager, adopting under oath the content of his expert report.  But before you get to the report, one has to wade through Turley’s curriculum vitae, which weighs in at a whopping 40 pages.  How he managed to cut it down to the bare bones, I’ll never know.  When a lawprof burps, it’s a new line in the CV. 

The primary thesis of the report is that societal and legal views of polygamy, and Turley provides a definitional section to describe it in all its glorious permutations, are intellectually dubious and changing.  He argues that the long-held societal prohibitions reflect a  tyranny of the majority against bona fide religious beliefs and intrusion of government into personal choices, private consensual unions.  He argues that plural unions are not inherently dangerous, and therefore nobody’s business, much like homosexual unions.  Do these women look dangerous to you?

While it hadn’t occurred to me before, his point that societal norms are a’changing makes some sense, given that The Learning Channel does indeed air a television reality show about alleged polygamists.  This is how minds begin to change, seeing that the folks who engage in this conduct don’t have horns. 

Perhaps this is the start of a trend toward normalization of polygamy, though it hasn’t done much for Housewives in New Jersey.  Still, I can only imagine what comes next:

Pot Luck (Bravo, 8:00 p,m,) — The gripping story of a group of sexy marijuana farmers dealing with the highs and lows of hydroponics while keeping one step ahead of the laws. 

While nothing in Turley’s affidavit made me think that polygamy is a good idea for anyone who doesn’t put on magic underwear every morning, it’s certainly quite informative and relatively persuasive.

Considering that second (or third) spouse, and yes, ladies, multiple husbands (or polyandry, as we are informed) is on the table as well, in the near future?  Then this is a must read.  Whether your plan is the next great reality TV show or a stint in the local hoosegow, the time to bone up on poly-whatever is before you’ve said, “I do.”  And “I do, I do, I do, I (hmm, not sure about you; Well, okay) do.”

And he says :

Although yodle should not have put a picture on their micro site that would put their client at risk, if I am not mistaken, are you not paying for leads from people searching for your services. Who cares where it came from as long as it brings you a new cusotmer/ ROI.

When Mark Bennett received this comment from James J. McCarthy, IV, “Senior Account Executive of Business Development” at eLocallisting.com, he sent out an email to some friends asking whether they had posted the comment, because it seemed as if someone was goofing on him.  It seemed impossible that anyone would be so mind-bogglingly stupid as to leave a comment like this if they were serious.  And yet, there it was, McCarthy’s contribution.

Regular readers of blawgs like Bennett’s and mine will get the joke.  Some will find it funny.  Most will find it boring and unfunny.  They’ve heard enough of the joke in its many permutations.  “We get it,” the let us know.  “Can’t you move on already and get back to the stuff we like, lying cops, slimy prosecutors and dopey judges.”

Preaching to the choir has its pleasures, such as the positive feedback from those who agree with us when we’re busy picking low-hanging fruit.  There’s a story every day about one of the troika, cops, prosecutors, judges, going wild.  It’s not that we don’t care about readers’ interests, but that it gets tedious to post the same thing, over and over, with only the names changed, unless there’s some point to be made.  If the only point is that there are lying cops, slimy prosecutors and dopey judges out there, then read an old post and pretend it’s new.  It’s already been said.  You got it.  We got it.  Everybody got it.  Would the last guy out please shut off the lights?

But there is a battle going on within the legal profession that won’t interest some readers, but should.  Writing blawg posts may be great fun, and it may even be fun to read them once in a while, but the real deal happens in courts, big and small, around the country where regular people who don’t spend a lot of time reading blawg posts hire lawyers to save them from the system.  As would be expected, many people turn to their computers to help them pick their lawyer, even though it’s far from the best way to do so.  Indeed, it’s likely the worst, in my opinion, but then nobody asked for my opinion.

If you’re a lawyer who has spent years honing his skills, has his head on straight about what we, as criminal defense lawyers, do for our clients and takes personal pride in doing the best work he can, putting honesty and integrity ahead of self-interest, and being effective for your clients rather than bemoaning the injustice in the world, then you need to pay damn close attention.  You are a member of a minority group.

It’s not based on your skin color, ancestry or gender.  It spans all the immutable factors.  It’s the group of lawyers who think that the comment by James J. McCarthy IV is a joke. 

Who cares where it came from as long as it brings you a new cusotmer/ ROI.

New lawyers, digital natives, coming into the fold don’t care.  They care that the phone rings.  Old lawyers discovering the magic of the internet don’t care.  They care that the phone rings.  If the phone isn’t ringing, then they pay someone to perform the magic of SEO juice to raise their search results.  If the phone isn’t ringing, they pay someone to create a website for them, providing a list of reasons why potential new clients should hire them.  Not just that, but why they should hire them rather than you. 

This is a zero-sum game.  If a client hires another lawyer, it means that the client does not hire you.  One lawyer gets a fee.  Another does not.  The basis for getting a fee may be the quality of representation.  It may, however, having nothing to do with the lawyers’ skills, honesty or zeal to defend his client.  It may be based upon the manufacture of a fiction designed to entice clients to select you over another lawyer. 

What’s the difference?  As long as you get the client and do your best, isn’t that all that matters?  Many lawyers who do the dirty wrap themselves up in this rationalization, telling themselves that as long as they do their best, it doesn’t matter how they scored the case.  Like McCarthy, who cares where it came from as long as it brings you a new customer.

A cheating scandal has erupted at the University of Central Florida.  Hundreds of students are implicated.  On Good Morning America, some students were interviewed.  One said that there are enough unethical people in business already, and cheating is wrong.  Another said everybody cheats, and getting ahead by any means available is all that matters.  These are our children talking.  Who do you want to be right?

The legal profession is at a crossroads.  Maybe past the crossroads, but some of us hope not so far past that we can’t change course.  The implications reach well beyond any individual case.  They strike at the core of what we, as lawyers, do, and at the very justification for our existence.  If we, as a profession, give up internal integrity for the next legal fee, then every curse ever uttered about lawyers is absolutely right.

There will always be outliers to ethics, to honesty, to integrity.  As long as they are outliers, we can address them on an ad hoc basis, if we have the will to do so.  The shift on the internet has been that honest lawyers are now the outliers.  And if this trend is not stopped, is not reversed, we will be exactly what people think we are.  We will be the joke.

And that’s why guys like Bennett and I keep boring you with this stuff.  I’m sorry if it doesn’t make you laugh or cry, but your entertainment is not my primary concern.

Houston, better known as Harris County around them parts, has selected its first public
defender.

Alex Bunin, federal defender from the Northern District of New York.

From his bio at Albany Law School :

Federal Public Defender for the Northern District of New York. Appointed to establish that office by the United States Court of Appeals for the Second Circuit. Established federal defender offices in the District of Vermont and the Southern District of Alabama. Board Certified in Criminal Law by the Texas Board of Legal Specialization since 1991. Author of articles on criminal law, criminal procedure, and the death penalty.

Excellent choice.  Your gain is the Northern District’s loss, and there’s probably no one more capable of establishing the office of Harris County Public Defender.

H/T Bennett

For new readers, I occasionally write about pressing sartorial issues because of my renown knowledge of legal fashion, from haute couture to the latest in Nikes.  While my concerns are usually limited to lawyer attire, it would be irresponsible of me to ignore my responsibility as a counselor and the needs of potential clients.  To this end, I note Jonathan Turley’s post.

Columbus police have a video showing a man who failed in a bank robbery effort when he tripped over his baggy pants.

The baggy gunman entered the bank in the afternoon and assaulted two employees before fleeing with money. However, his baggy pants tripped him up and then the dye pack went off in the money. He proceeded to drop the bag and flee (as best he could) in his baggy pants.

The intersection of form and function has long been a problem for bank robbers.  Even Clyde Barrow struggled with what tie to wear, necessitating his partnership with Bonnie Parker.  But whereas that was merely a matter of taste, this fellow clearly succeeded in the splendor department.

Note the coordinating hat, bandana and jacket, demonstrating a great deal of thought on the part of this fellow, not to mention (and this will likely be missed by those of you who are not as astute as I) that the solid red field of his jacket looks spectacular on video.  Strips or checks would have caused some distortion, making in quite difficult to appreciate the thought that went into the selection of this outfit.

But then we have this:

Whatever was he thinking?  You can’t even SEE his sneakers, and I would bet money they are top of the line Nikes, probably with the red and brown swoosh that perfectly matches both his outfit and his semi-automatic weapon (just guessing on this one).

There is no question but that I support a young man’s right to wear his trousers in whatever fashion best suits his desire to express his personal sense of style.  He can look as stupid as he wants to look.  But there’s a big difference between selecting a style that mimics the manner of dress predominant in prison for lack of a belt and a decent tailor, and putting form ahead of function at those time when you’ve got someplace else to be.

And yes, those pants make his butt look fat.  And he can’t get away, either.

Over at Volokh Conspiracy, Orin Kerr conducted an impromptu survey about whether readers knew that cellphones transmitted locations to cellsite in order to know where to send calls.  The results (with an astounding 1600 responses, 95% understanding how cellphones work, at least in this regard) reflected either a particularly knowledgeable group of readers or the bias of conducting a survey which essentially asked the respondent, “Are you a moron or not?”  Still, five percent conceded they were.

Orin later explains the purpose of his survey.

The reason I asked, as some have figured out, is that one of the legal issues that arises in whether the Fourth Amendment protects cell-site data is whether users know that the information is transmitted. My own view is that as a matter of law, courts should assume that users of a technology understand the technology when the courts apply Fourth Amendment law to it. The Constitution shouldn’t safeguard ignorance, and even if it did, improving understanding over time means that any rule based on ignorance has a limited shelf-life. Further, past Supreme Court cases have presupposed understandings of the technology: In Smith v. Maryland, for example, the Court presupposed that people know how telephones work when there wasn’t actually any evidence in the case that this was true.

This is a significant, and troubling, issue, given that Katz’s reasonable expectation of privacy remains the threshold.  Whether an expectation of privacy is reasonable depends on what’s known, by us and by people generally, about the technology we use.  For those with some degree of tech savvy, the fact that cellphones communicate with cellsites on their own is hardly a shock.  For others, it’s just a thingy that lets you make phone calls without wires.  That it works matters.  How it works, not so much.

This becomes particularly problematic in law because judges, charged with deciding whether to suppress warrantless searches and seizures and issuing search warrants, are not required to have any particular degree of technological knowledge or scientific acumen.  Yet they do tend to suffer from the same irrational bias that afflicts the rest of us, they believe they are reasonable.

Some courts have concluded that reasonable people don’t know how cell phones work, and that they are sort of a magic box that secretly gives away location information. They haven’t offered any empirical support for this view: It is just offered as a guess of what reasonable people think. My intuition is that this guess closely matches what the judge thought before the judge had the case: If the judge saw the technology as a magic box, then that is how a judge will conclude a reasonable person would think about it.

In other words, the reasonableness of our expectation of privacy in technology is dependent on whether the judge understands how things work or thinks they are some sort of magic box.  While it’s not entirely clear, I suspect that Orin’s point with regard to cellphones is that if everyone understands that cellphones provide tracking information to their third party provider, there’s no reasonable expectation of privacy in that information. 

This strikes me as showing two discrete problems.  The first going to Orin’s point, that judges’ concept of reasonable is built on his degree of technological worldliness.  Given that we presume to be a nation of laws rather than men, who cares what each individual judge knows about technology?  Why should our rights be dependent on whether some 90 year old prefers an iPad or an IBM Selectric? 

Moreover, once a judge is taught the technology during a case, the entire world of reasonableness flips on its head, and suddenly the reasonable person knows all there is to know about technology, because the judge has finally learned something.  And this further presumes he learned and understood it correctly, which is likely a stretch.  This goes to Orin’s argument that a rule based on ignorance has a short shelf-life. 

Orin argues that preserving the right to be ignorant of technology offers little support for a rule.  The same is true of a rule based on cutting edge knowledge of technology.  The same is true of a rule based on technology at any moment in time, given that the amount of knowledge generally possessed today is likely to be significantly less than what’s known a year or two from now.  Tech changes far too quickly to be deemed static, as were other inventions of the last century which generally stuck around for decades, other than the 8 track tape.

So if the issue arose about how 4G works today, and whether it would be reasonable for a person to expect privacy from others on his 4G network (for example), the decision would be rendered in a year or two based on generally accepted understanding a year or two from now.  By that point, everybody would understand how 4G works, even though today most of us have no clue what 4G is, other than an advertising slogan.

Given what technology is doing to our privacy, which is essentially rendering it wholly non-existent, determining reasonableness in this fashion will eviscerate any expectation of privacy, no matter how strongly we believe that our telephone calls and emails and IMs shouldn’t be open to government inspection.  Other will know far better than I what technology is on the horizon, and how that technology, when viewed through the traditional Fourth Amendment lens, exposes our secrets to anyone with a password or backdoor. 

Like privacy?  Then we need a new set of rules that provide a different baseline for what’s ours and what’s not.  The traditional paradigm is dead, as nobody with even a half-baked knowledge of technology is unaware that every single thing we do passes through the hands of a third-party provider, with a dozen copies living on some server in the bowels of a building in a town we never heard of, abrogating every rule created in the quiet days when rum runners outran revenuers.  There’s no outrunning computers.

If Orin’s “technology neutral” approach prevails, we can take comfort in having a principled approach that just happens to leave no aspect of our lives private.  The good news is we have a rule.  The bad news is that the rule is that you have no reasonable expectation of privacy.  Now up against the wall and spread your legs.

Six counts carried the potential for death, and death it was on all six.  After three and a half days, 19 hours, the jury returned its verdict.  The survivor, Dr. William Petit, called it  “A verdict for justice.”  Someone else called it “absolute justice.”  It’s always about justice. 

There are a few things in this case that make it both difficult and pure.  There’s no doubt that Steven Hayes is guilty.  There’s no doubt that the murders of Jennifer Hawke-Petit and daughters, Hayley Petit, 17 years old, and Michaela Petit, 11, were horrible.  There is a great deal of support for the jury and its decision.  For many, this is a man who needs killing.

When and whether the sentence of death, to be formally imposed on December 2nd, will be carried out remains anyone’s guess.  For all I know, Hayes will live longer than I.  Some are asking if he can be put to death tomorrow.  Some relish in the visceral reaction to horror.  If they asked for volunteers to pull the switch, there would be no shortage.

Of the Connecticut blawgers, Gideon struck first

My only hope is that one day, we as a State can look back upon this and other sentences of death with a certain sadness coupled with the knowledge that those days are past us – that we no longer ask our citizens to stake their mental well being on the anguishing task of deciding the fate of another man’s life – that we are no longer in the business of adjudicating worthiness to breathe.

Until then, I mourn. For this morning, Steven Hayes was the only one with blood on his hands. Now it’s on all of ours.

Connecticut doesn’t put people to death regularly.  It hasn’t actually done so in 50 years*.  New York doesn’t do it at all anymore. Others do.  I’ve learned much about it from Ohio’s Jeff Gamso, who has stared at execution as the lawyer for the dead man walking.  Each execution causes him anguish.  He doesn’t have one to make his cause celebre.  But he also taught me that either way, execution or life without parole, it’s the death penalty.  The only question is how long it takes to complete.

Dr. Petit said :

This is not about revenge. that belongs to The Lord. This was about justice.

For those who believe that capital punishment is inherently wrong, that the state should never put a person to death, then none of this is true.  This is the fiction of justice that those who abide capital punishment wrap around themselves to feel comfortable with their decision.  But there are a lot of those people who have no issue with capital punishment in the right case.  This was such a case.  For them, there was never a doubt what the verdict should be.

But do we all have blood on our hands because of this verdict, as Gideon suggests?  It’s melodramatic, but so is just about everything surrounding this verdict.  To some extent, we have have always had blood on our hands, the blood of children murdered on the streets, starving to death, dying for lack of medical care, dying on drugs, dying in a shoot out with cops when trying to rob a liquor store with their teenage friends.  And when they die in the execution chamber. 

If we took a vote of the people of Connecticut as to whether the verdict of death for Steven Hayes represents Justice, my guess is that there would be overwhelming support.  According to Hayes’ lawyer, Tom Ullman, Hayes sought the death penalty and smiled when the verdict of death was announced.  Maybe he thinks this is Justice too?

I can’t say that I care deeply about what happens to Steven Hayes.  In fact, I really don’t care at all.  My interest is solely focused at the pure question, whether capital punishment is a proper sanction for society to impose.  Nothing about this case causes me to change my mind, and believe that capital punishment is the right thing for the state to do. 

And so I keep hearing that this is Justice.  Lots of people say so today. But it’s not my justice.  And there’s no blood on my hands today that wasn’t there before.