Eugene Volokh rose to the challenge, when asked why he didn’t post about a matter that piqued a reader’s ire.

What are you guys scared of?

I can’t speak for my colleagues, but here are three things I’m scared of: 

1. Looking like a fool when I opine on a topic about which I don’t know enough, and thus get the facts or the analysis wrong.
2. Getting facts or analysis wrong, even if I don’t look like a fool.
3. Falling yet further behind on my various other responsibilities, as a result of taking the time to learn enough about a complicated, controversial, fact-rich question so that I can opine on it without being wrong.

While his third is a variation on what I would have written, my response being that it didn’t interest me enough to make it worthy of the time it would take to learn, Eugene’s points are well-taken.  I actually doubt Eugene is worried about looking like a fool, as I don’t believe he’s so fragile.  He’s certainly proven his worthiness too many times to be afraid of being called wrong. 

Rather, I suspect his concern is that he doesn’t want to think of himself as a fool for extending his reach beyond his grasp.  He knows his limits.  Even brilliant people like Eugene have limits.

With this in mind, I’ve noticed that Elie Mystal at Above the Law has been delving into criminal law issues lately, which is curious on two fronts.  On the first front, ATL is dedicated to the salacious aspects of Biglaw.  If you’re fascinated by which Biglaw associates are having sex or how they deal with pimples with a hot date looming, ATL is the place to read. 

On the second front, Elie is a smart cookie, having obtain both undergrad and law degrees from Harvard.  From there he went to Debevoise & Plimpton, where he became a trial lawyer in their criminal defense department did litigation until he quit the law in favor of commercial blogging.  Nonetheless, with a huge megaphone and a deeper tan than most, Elie has turned his attention from judicial boobies to judicial boobs.

On the one hand, this is a wonderful thing.  The audience at ATL could certainly stand to learn a thing or two about criminal law issues, given that their interests tend to run from Biglaw salaries to Biglaw bonuses.  The only thing they know about criminal law is that it involved yucky clients who they wouldn’t touch with a ten foot pole, and that they would be much more inclined to lock ’em up for life if they were ever to touch their Mercedes than worry about such technicalities as torturing a confession out of them.  But for Elie’s infusion of criminal law into their myopic world, they would have no exposure at all.

The problem, however, became notable with Elie’s recent posts, beginning with his apologias to Tyler Clementi’s roommate, Dharun Ravi, and last with his homage to Judge Joseph Williams of Allegheny County, Pennsylvania.

If you spend any time around criminal defense lawyers, progressive lawyers, or people in a black barber shop, you’ll hear the claim that African-American criminal defendants receive harsher sentences than their white counterparts. People have done studies about this, people have written reports about this, people have held conferences about this institutional expression of discrimination.

Rarely do we see anybody trying to do anything about it. There are many reasons this fundamental unfairness persists, but only one of those reasons makes any sense: at the end of the day, nobody wants to be more lenient on a convicted criminal just because that criminal is black. And nobody wants to be more harsh towards a white criminal just because he’s white. So while we have these wide variations in sentencing outcomes, judges can’t re-balance the system from the bench. They have to sentence the criminal in front of them.

This comes about because Judge Williams rejected a plea deal of three months probation for fighting with a police officer after a traffic stop.

A black judge from western Pennsylvania rejected a plea agreement for a man accused of fighting with police during a traffic stop, saying it was “a ridiculous plea that only goes to white boys.”

From this, Elie expounds:

This kind of thing happens all the time. White boy sits in an office with a white prosecutor, prosecutor sees a bit of himself in the impetuous youth. Suddenly, mouthing off and trying to hit a police officer during a traffic stop turns into three months probation.

And concluding:

But whatever, assume that this theoretical black defendant ends up in the prosecutor’s office (after a brief stay in the hospital, no doubt). Does somebody really want to tell me that he’d end up with three months of probation? For “resisting arrest” and “assaulting an officer” and whatever other charges the prosecutor throws at him?

There’s no doubt that his heart’s in the right place.  And there’s similarly no doubt that he’s taking a huge chance in raising a nasty, unpleasant subject on a blog whose readers are disinclined to spend sleepless nights worrying about the plight of criminal defendants, regardless of color.  As the comments to the post show, the readers aren’t exactly reluctant to offer their off-color thoughts.

Good intentions, however, are not a substitute for making a point, and backing it up with sound evidence.  Instead, Elie mashes things that never happened (defendants hanging out in the prosecutor’s office so they can work out a deal?) with street-level hyperbole.  Rather than make his point, he’s firmly convinced his readers that he doesn’t have a clue what he’s talking about.

This is where Eugene’s fears come into play.  More than just a concern, pushing the agenda without factual support, with claims that make little sense and rife with extreme allegations, not only reflects poorly on Elie (See Eugene’s Point 1), but results in an analysis that fails to accurately address the problem (See Eugene’s Point 2).

Look, given the facts available, I think three months’ probation is probably fair for a first time offender. The point that Judge Williams was trying to make was that such “fairness” would not be extended to a black kid. This is a real problem that needs to be fixed.

But white people will never let Judge Williams get away with what he was trying to do. Voters can elect people who are “tough on crime” as much as they want, but I don’t think these same voters have the stomach to see the criminal justice system that African-Americans know about applied to middle-class white people. They don’t want to live in a world where black judges and black prosecutors treat white defendants the way that black defendants have been treated for years. They would certainly want no part of a world where a “jury of their peers” is a colored wall of people unsympathetic to little Johnny’s emotional issues.

Oddly enough, Elie is somewhat right.  Not that white people get a free ride in the criminal justice system, an absurd proposition at best, but that defendants of color get an even worse ride.  Not all the time.  Not in every case.  But on the whole, sure.  The trouble is that neither this case, nor Judge Williams’ comment, nor Elie post, proves it.  Instead, the lack of support for his proposition feeds the ignorance of all those future Biglaw partner wannabes disdain for criminal defendants in general and defendants of color in particular.

There are any number of blogs that post really good stuff regularly about criminal law issues that better demonstrate the point Elie seeks to make, and provide factually accurate information in a well-understood context by people who stand beside these defendants, color notwithstanding, as they face the judge.  Elie has the reach, but not quite the grasp.  There are plenty of others who have the grasp if not the reach. 

Two options present themselves.  ATL is not only an extraordinarily big soapbox, but one that speaks to an audience that would otherwise hear little if anything about criminal law issues.  Either use the soapbox to inform based upon some time spent reading more knowledgable writing on the subject, using better examples and well-founded support, or turn over the podium to someone who has stood beside defendants and can speak from personal knowledge about the law. 

But don’t squander the opportunity like this, and ignore Eugene’s first and second points.  It not only fails to make your point, but doesn’t help your credibility much either.  And the issue is too important to screw up.

In a stunning decision, Southern District of New York Judge Lewis Kaplan did something the executive branch didn’t want him to do. His job.  As the trial of Ahmed Khalfan Ghailani was scheduled to begin, Judge Kaplan ruled on the pending motion, challenging the use of torture to gain evidence against Ghailani, as well as the good will of America to compel a guy in Tanzania to come to New York to testify. And what a ruling it was.

But just as the trial was to begin on Wednesday, Judge Kaplan ruled that he would not allow the witness to testify. He noted that the government had acknowledged that it had identified and located the witness through interrogation of Mr. Ghailani when he was earlier held in a secret overseas jail run by the Central Intelligence Agency. His lawyers have said he was tortured there.

Judge Kaplan said he was “acutely aware of the perilous nature of the world in which we live.”

“But the Constitution is the rock upon which our nation rests,” he went on. “We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand.”

Remove the whole terrorism overlay and this decision was a no-brainer, violating every precept we can think of plus a few that never even dawned on us.  But then, removing the whole terrorism overlay and we have to step back a decade,  Back before “9/11 changed everything,” and “we live in a dangerous world,” and “mission accomplished.”  Back to a time when the freedom for which American men and women died was worth preserving.

Speaking in Washington, Mr. Holder seemed to play down the ruling’s significance.

“We are talking about one ruling, in one case by one judge,” Mr. Holder said.

“I think the true test is, ultimately, how are these cases resolved? What happens?” he continued, adding, “Can they be successfully resolved from the government’s perspective?”

Yet again, E.B. White’s admonition comes into play.

Of course. Justice was obstructed along with everything else. The purpose of the executive branch is to obstruct.

You can’t blame AG Holder for doing his job, I suppose, and his job is to convict the bad guys.  It’s Judge Kaplan’s job to force adherence to the Constitution, even when that gets in the way of convicting the bad guys.  Judge Kaplan did his job.

This isn’t the end of the trial, or the end of some monumental issues that strain the fabric of freedom.  In fact, an even bigger issue looms in light of this decision.

The judge said he felt it was appropriate to emphasize that the trial was still proceeding, and that if Mr. Ghailani were convicted he faced the possibility of life imprisonment.

He added that Mr. Ghailani’s status of “enemy combatant” probably would permit his detention as something akin “to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end, even if he were found not guilty.”

How does one determine, when a person is denominated an “enemy combatant,” that hostilities with such amorphous groups have ended?  Will there be a treaty signed by bin Laden on the deck of an aircraft carrier?  As far as I can tell, there’s no method to accomplish such a goal, neither a sovereign to negotiate with or a leader who actually controls a clear territory.  Hostilities with shadows never quite reach a conclusion.  There can be “enemy combatants” forever.

The government says that this witness is critical to its case against Ghailani.  Should the trial commence, the truth of this claim will be seen.  If accurate, then there stands a good chance that Ghailani will be acquitted.  That means the screws will be put to Judge Kaplan after a two-word verdict, when he gets to wish the defendant a happy life or order him back into custody.

Talk about a dilemma, as there is no provision in our Constitution to try a man for a crime, then detain him in perpetuity for being acquitted.  The same Constitution that Judge Kaplan upholds here is the one he will have to confront should Ghailani’s jury say that the government hasn’t proven he’s a terrorist, that he’s not an “enemy combatant” as far as a jury in a court in the United State of America is concerned.

Before we reach that crossroad, there’s a trial to be had.  It gives everyone involved a chance to consider the dilemmas that arise when the executive branch’s job is to obstruct justice and the judicial branch’s job is to uphold the Constitution.

Judge Miriam Goldman Cederbaum sentenced the Times Square Bomber, Faisal Shahzad to life in prison. No one in the room blinked.  The sentence surprised no one.  In the process, however, it seems that everyone forgot about a little quirk in Shahzad’s case that stood out and compelled an answer.  Whatever happened to the two weeks?

At sentence Shahzad was every inch the defiant terrorist, or as much of a terrorist as a guy who couldn’t pull off the stunt.

He asked the judge for 5 or 10 minutes, then launched into a soliloquy that was at times rambling, at times threatening and delivered with the crinkly-eyed grin of a man who acted as if he could not be happier than where he was at that moment.

“This is but one life,” he said. “If I am given a thousand lives, I will sacrifice them all for the sake of Allah, fighting this cause, defending our lands, making the word of Allah supreme over any religion or system.”

Sort of the terrorist version of Nathan Hale.  It was a nice bluff, given that he accomplished nothing beyond showing himself to be a disaffected, bumbling fool.  But then he raised his wild card.

“On the second day of my arrest, I asked for the Miranda,” he said, referring to the required notification of his right to counsel. “And the F.B.I. denied it to me for two weeks” and threatened his wife and children, he said. The judge, prosecutors and defense lawyers stayed silent as Mr. Shahzad, who has mounted no substantive defense in his case and who pleaded guilty to all charges against him on June 21, continued to speak. His lawyer, Philip L. Weinstein, had no comment on the statements after the hearing.

You may recall that the government, rather than deliver Shahzad to court to be arraigned following his arrest, decided to hang out for a while instead.  Shahzad, the terrorist who would sacrifice a thousand lives, was a talker.  At the time, the government insisted, and it appeared to be supported by his assigned counsel, that Shahzad was on board with the government, happy to blab away.

While it certainly appears clear that the government didn’t need his statements to make their case, or at least it was clear enough to Shahzad to plead guilty, that doesn’t do much to answer the question of what our government was doing holding him rather than bringing him to court.  If the linchpin is a solid case, does this mean that all rules about bringing defendants before a neutral magistrate for arraignment are history?

We’ll never know.  The missing two weeks, and its legal significance, will remain missing in perpetuity.  Except that the next defendant with the word “terrorist” attached to his name may go missing for two weeks.  Or three.  Or a month.  And then some other defendant, perhaps with the words “drug lord,” may go missing.  Or maybe they will call him a “drug terrorist.” 

The question isn’t answered because Faisal Shahzad pleaded guilty.  That too is curious, given that his two weeks of talking, during which the government claims he provided all sorts of really important information about other terrorists and their plans, should have come up at sentence.  Cooperation, anyone? 

Though there was no suppression hearing, the benefit of information provided by Shahzad to the government at sentence should have been shouted across the courtroom at sentence.  Hey, give the guy the credit he’s due.  He talked, and he should get something for that.  He provided substantial assistance, so where’s the give-back?

Instead, Shahzad got the sentence he would have gotten anyway.  He copped a plea, but received no benefit.  He talked, but received no benefit.  So as was asked at the time Faisal was spilling his guts, what’s the message? 

Not even the rosiest of rat-lawyers would suggest that Faisal will get a medal for the good things he’s given the government.  But then, since his charges carry life in prison, there’s a broad spectrum of reduced sentences available to him.  Will his cooperation serve him well?   Will a sentencing judge, upon reading his good works, reduce his 198 year sentence to 188? 

Of course, Faisal may not be cooperating for the sake of a benefit at sentence.  It’s always possible that a guy who wanted to blow up Times Square on one day wants to fulfill his duty as concerned citizen to the American government by helping to thwart terrorism the next.  People have changes of heart all the time.  At least that’s what they say when they take the witness stand, after they’ve flipped.

The silence at sentence about the real issues raised by this case, and Shahzad’s conduct, was both deafening and perplexing.  Why was nothing said about this?  It’s now buried forever.  Will the next “terrorist” talk when there’s nothing to be gained?  Will the next “terrorist” be held incommunicado rather than be brought for arraignment, being made to talk?  Will the next “terrorist” even be a terrorist?  Nothing was learned from Shahzad’s sentence.

Some people think I’m occasionally snarky when it comes to the modus operandi of Avvo, suggesting that any lawyer whose name appears on its pages is readily available for free advice.  Moi?  I think not.  The missive in my email this morning likely asks a question that many people want answered, and so I offer my response here, that any interested party may see it.

Hello,

I am writing to see if you can help me. I was given a public urination summons in NYC and am trying to figure out the best option. I have to work on the day I am supposed to appear and I do not want this to affect me negatively in any way. Can you help or know someone who can? Any help is appreciated. Thank you.

No wise cracks about my experience with public urination, or the likelihood that a gentleman of a certain age would do well to wear Depends.  Now that would be snarky.

This is a very common dilemma, and one of the most frequent requests I receive from Avvo readers, trumped only by shoplifting.  You see, New York is not very urination friendly.  Go to a bar, drink yourself blind and, as you wind your way home, there’s a sensation in your loins.  No, not that sensation.  The urge to pee. 

You look around and see the blackened facades of storefronts, Not that it matters, since most sell shoes and deny that they have indoor plumbing anyway, unless you you spring for some Jimmy Choos.  And still the urge persists.

So you look around and, seeing nothing, heed nature’s call.  Naturally, it’s the only time you can find a police officer in the City of New York.  Or to be more precise, he finds you.  Bummer.

Having identification, the officer issues a summons for public urination.  Is this really necessary, Officer?  Well, sure it is.  How else can they make their quota?  Duh. 

In the cold light of morning, however, the implications of the night peeing on the town strike home.  First, there’s the matter of this criminal court summons, the one that says you are commanded to appear.  Commanded?  That seems pretty harsh.  Can’t we just arrive at mutually convenient time and deal with this like gentlemen?  You know, shake hands and call it even? Yes, you washed your hand first.  Please.

Then there’s the matter of having to work for a living. Not everybody can live the life of luxury of a lawyer, available to go to court on any given day.  There are jobs and bosses and bills and jobs.  Explaining to your boss that you can’t show up for work because you have to appear in criminal court is generally frowned upon.  This is true even in a bad economy.

So what are the options?

Not good. Not good at all.  As much as public urination is considered disgusting in some circles, it really does not constitute a huge break with the social contract, sufficient to justify its consequences.  The Avvo reader can, of course, retain counsel, but you notice how that isn’t really part of his question.  Still, this won’t stop some from seeing the opportunity presented by this email.

Some readers will say to themselves, “Hey, this could be the start of a niche practice in public urination defense.”  I anticipate receiving an email from a certain lawyer in Houston informing me that there are lawyers making seven figures doing public urination defense.  I bet they all favor blue suits.

My experience tells me, however, that the real question belying this email is whether he can write a letter to Mayor Bloomberg, apologizing for making a mess of his sidewalk, promising to never urinate again, and avoid this whole megillah.  Unfortunately, that option was foreclosed by recent amendments to the criminal procedure law of the State of New York, closing the “say your sorry and call it even” loophole.  It’s understandable that the writer might not be aware of changes that have limited his options to appearing in court as commanded or hiring a lawyer.

In passing, I note that my public presentation of this unfortunate incident comes because this email was unsolicited and its contents are so common and generic that they reveal nothing about its writer.  Unlike the double homicide emails that come via Avvo, which would not likely be as generic.

I sincerely empathize with the young man who asked this perfectly reasonable question.*  After all, the offense is quite petty, and merely complying with the summons carries significant consequences.  Putting good money into hiring a lawyer to defend against the charge is likely out of the question, both because the charge hardly merits it and because he doesn’t have the money to pay.  Yet, he certainly doesn’t want to have a record for public peeing, which will come back to haunt him in his next run for the Senate.

No, there are no good options to be had here, and I consider it a mitzvah to offer what little comfort I can, for free of course, to any Avvo reader who seeks a quick, easy and free solution to their problems.  How fortunate that we have Avvo so that no urinator’s question goes unanswered, even if the answer is no.

*  Just so you know, I responded to the email in a professional and sensitive manner, though the options didn’t improve. 

Pick ’em.  Vulnerable victim.  Abuse of an official position.  Neither one grab you?  What about raping a teenage girl?  Under most circumstances, that would be good enough to garner enough interest, even outrage, to cause someone to pay attention.  But not when it comes to probation officer Tony Simmons. 

Via Radley Balko, the Daily News explains what happened to 15 year old Ashley, charged with the heinous offense of filing a false instrument, in the bowels of Manhattan Family Court:

A hulking juvenile counselor named Tony Simmons led her in handcuffs from the girls holding area to the elevator.

She expected Tyson, as Simmons was called, to bring her up to the courtroom where she was scheduled to be sentenced for filing a false police report.

Instead, the elevator descended to the basement. The 42-year-old counselor pulled down her pants and raped her with calm, practiced precision that made him all the more terrifying.

“He knew exactly what he was doing,” Ashley said. “Everything.”

When he was done, Simmons pulled her pants back up and the elevator ascended to the courtroom. He raised an extended index finger to his lips in a mute command for her to say nothing.

Ho hum, right?  But here’s the best part.  Ashley pulled a bullet for her crime.  Simmons, on the other hand, got probation.  Did I mention that two other girls came forward, having been sexually assaulted by Simmons? 

Simmons continued to prey on teenagers in his custody until 2008, when a 15-year-old girl came forward to say he had sodomized her behind a locker in the girls holding area, which he stocked with condoms and cookies. Investigators believe the assaults go back a decade to the rape of a 13-year-old in the holding area.

The probation covered that too.  One might expect that there were others as well, but he was only indicted for the three.  And then, poof, probation.  This is where it gets really interesting.

Prosecutors never objected to a no-jail plea deal for a city worker who sexually attacked three girls inside the Manhattan Family Court building, a transcript shows.

The revelation came a day after Manhattan District Attorney Cy Vance Jr. blasted the judge’s probation sentence for Tony Simmons as “outrageously lenient.”

It’s nice that Cy was outraged.  It would have been a whole lot nicer if that outrage either extended to the ADA, Amir Vonsover, who stood up and agreed to the plea, or somebody supervising him, found their outrage before the deal was done.  And so, the spin begins:

A law enforcement source said Tuesday that Vonsover did object, but at an off-the-record bench conversation with the judge where he insisted on a minimum sentence of 1 to 3 years. The judge decided to offer probation, the source said.

It would certainly seem as if the poor prosecutor had no choice, since the evil judge forced probation down his throat.  Except that’s not how it works.  On the facts, this would have been first degree rape, a class “B” felony, for which probation is unavailable.  This had to be a plea bargain, which requires the prosecution’s approval.  While a judge can reject the deal, she can’t force the prosecution to take it. 

And then there’s the “off-the-record bench conversation” where it’s claimed that Vonsover “insisted” on state prison. Yet on the record:

But according to a transcript of Monday’s hearing, the assistant district attorney in charge of the case offered no objection to the plea deal.

“Your Honor, it’s my understanding that the defendant … is willing to plead guilty in exchange for a promised sentence of probation,”

Notice where he expressed the prosecution’s outrage at the promise of probation?  I didn’t either.  Clearly, his mouth was working.  Clearly, the court allowed the prosecution the opportunity to speak.  This would have been an awfully good time for the ADA to voice his outrage over giving this court official who used his position of power and authority over vulnerable teens to rape and sexually abuse them.  Instead, he uttered the standard plea mantra, the one where everything is hunky dory and there are smiles all around.

Certainly filing a false police report, as Ashley did, claiming that she didn’t know the identity of the perp who jumped and cut her on her way to school, is a horribly heinous crime.  It impairs police work and has the potential to make them less effective than they would be with accurate information.  The fabric of society is at risk.

But Tony Simmons, on the payroll to counsel juveniles, was just having some fun.

Simmons, 47, admitted he raped a 15-year-old, forced a 16-year-old to give him oral sex and molested a second 15-year-old in the courthouse. The victims were all in court custody.

Cy really needs to either time his outrage better or find himself some ADAs who can distinguish between the severity of a kid’s lie and the likes of Tony Simmons. 

No, there is still no clear basis to know why Tyler Clementi took his own life, even as the variety of advocates use him to promote their own agendas.  That means it’s ripe for politicians to usurp the tragedy for their very own.  Via Eugene Volokh :

The Daily Record reports:

Several days ago, three Ocean County legislators called for action on a bill introduced in both houses of the Legislature that would establish the crime of “cyber-harassment” in New Jersey. Assemblyman Brian E. Rumpf, Assemblywoman DiAnne C. Gove and Sen. Christopher J. Connors, all R-Ocean, would make any electronic communication that is designed to harass someone a petty disorderly persons offense.

The renewed push stems from the Tyler Clementi suicide, which was apparently prompted by the surreptitious videotaping of Clementi having sex, followed by the release of the videotape. And such surreptitious videotaping of sexual behavior is already rightly criminal. But the bill goes far beyond such behavior.

What’s a tragedy if not an opportunity?  The proposal actually amends existing law, primarily by inclusion of the following (underlined portions to be added):

[A] person commits a petty disorderly persons offense if, with purpose to harass another, … [the person]:

a. Makes, or causes to be made, a communication or communications anonymously or otherwise, or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

*  *  *

A communication under subsection a. of this section includes, but is not limited to, the posting of a photographic images or other descriptive material on an Internet website, or the sending of a telephonic message, electronic mail, text message or similar type of electronic message or communication, by means of an electronic communication device. “Electronic communication device” includes, but is not limited to, a telephone, cellular telephone, computer, computer network, computer system, video recorder, facsimile machine or pager. A communication under subsection a. may be deemed to have been made either at the place where it originated or at the place where it was received.

No big deal, since no law-abiding person posts anything on the internet that uses coarse language or is likely to annoy a person.  And now an image that does that, say of a cop committing a crime or a politician with her knickers down falls into the same category.  While invasion of privacy laws already prohibit the broadcasting of Tyler Clementi’s private experience, how could ambitious and deeply concerned people fail to employ his death when, with the jerk of a knee, there was political capital to be gained?

Lest anyone not notice, this law would encompass the efforts of almost every blawger of any merit, since our descriptions and images certainly tend to cause annoyance.

Eugene notes that the law was unconstitutionally overbroad to begin with, and is made worse still by the changes.

The existing harassment statute was already flawed, it seems to me; but at least such statutes have generally been seen as focusing on speech said to a particular unwilling listener, and leaving people free to talk to the world at large. This proposal would make clear that speech to the public about a person is now a crime (albeit a petty one) if it is said “with purpose to harass another” and is “likely to cause annoyance.” So if I publicly harshly condemn Assemblyman Brian E. Rumpf, Assemblywoman DiAnne C. Gove, and Sen. Christopher J. Connors, then I could be a criminal if a prosecutor and a judge conclude that my speech is “likely to cause annoyance” and was said “with purpose to harass another.” Likewise if I post annoying comments criticizing a New Jersey journalist, or a New Jersey actor or sports figure or whoever else.

The mens rea component is covered by the “purpose to harass” language.  Words like “harassment” and “cyber-bullying” have become ubiquitous, but remain essentially meaningless.  They are undefined and open for pretty much anyone to claim to be the victim.  Eugene suggests that the best we can do is substitute “annoy” for harass, such that if the purpose of posting a description or image online is to “annoy” someone, then the mens rea component is met. 

Of course, we often intend to annoy people with online utterances, and believe they damn well deserved to be annoyed for their conduct.  That’s the nature of scrutiny, that people who engage in impropriety not be shielded from the consequences of their conduct.  There’s no exception here for annoying liars, miscreants or frauds.  There’s no exception here for annoying people by expressing disagreement with their well intended, or deceptively intended, public claims or statements.  There’s no limitation here for the private conduct of non-newsworthy private persons. 

But heck, Tyler Clementi is dead and we can’t let that go to waste.  Even though we still have no clue as to what really went through Tyler’s mind, or Ravi’s for that matter, the forces of disingenuity can’t let a tragedy go to waste.  They’ve got agendas to sell, and if they can find people stupid enough not to grasp their abuse of tragedy, they’ve got a winner on their hands.  

Let’s face it, when it comes to a tragedy like this, one that even touches vaguely related sacred cows, even relatively smart people jump on board, blinded by their adoration of underlying causes and happy to close their eyes to rational relationships.  In other words, who cares if it makes any sense, as long as the spin serves your desired outcome.

Just wrap up your beef, your issue, your next petty offense, in a tragedy and a ribbon and only evil people could possibly oppose you.  After all, we’re just doing this for poor Tyler Clementi.

As has been discussed here numerous times, it’s become quite common in federal sentencing for the defendant to submit letters to the court as part of his presentation.  This, in a sense, is the counterpart to a victim impact statement, a more slippery proposition given that the victim isn’t a party to the case.

But there appears to be a trend developing where others, wholly unrelated to a case, want to have their say as well.  From the Columbus Dispatch :

The man from Portland, Maine, had never met Billy Joe Gregg Jr.

But he was angry enough about Gregg’s abuse of cows that he fired off a letter to Judge Michael J. Grigsby of Marysville Municipal Court:

Please set a new standard by putting this guy away for as long as you possibly can, and fine him to the maximum. We, the concerned citizens of this country, are watching closely to see that true justice is done for those who cannot defend themselves.

Notice how the letter writer appointed himself spokesperson for “the concerned citizens of this country”?  No doubt he believes himself to reflect the true sensibility of all right-thinking Americans.  Who doesn’t?  So what impact did this concerned citizen have on Joe Gregg’s sentence?

The judge, however, never read the letter. Nor did he read any of the 24 others that were sent to his office about Gregg, the former hired hand who pleaded guilty Sept. 24 to six counts of animal cruelty for abusing cows and calves at Conklin Farms near Plain City. Gregg will spend the next four months in jail.

To his credit, the judge recognized that the 25 letters(!) failed to reflect any reasoned thought worthy of consideration in his sentencing decision.  But the mere fact that 25 people felt empowered to express their opinion to a judge is utterly extraordinary.

But the legal system isn’t easily understood by outsiders, and people, by and large, aren’t sending the letters to peddle influence or try to meddle in affairs where they don’t belong. Most simply have an opinion they want to share, and they don’t understand that there is a better way to go about it, said Charles A. Schneider, administrative judge of the Franklin County Common Pleas Court.

It’s unclear what Judge Schneider means when he says “there’s a better way to go about it.”  There neither is a better way for a person wholly unrelated to a case to express an opinion, nor should there be.  Sentencing is not supposed to be a popular referendum.  As for those involved in the case, mechanisms exist for them to inform the judge of their views, but the fact that outsiders from across the country are so bold as to think their opinions demand consideration is a very different, very troubling trend.

To some extent, it would appear that this is an outgrowth of the internet, including blogging.  Maybe especially blogging.  Newspapers write stories and then allow for public comments, whereas they were limited, in the dead tree days, to letters to the editor that either expressed a cogent thought in a meaningful way or came from a person with some inherent credibility.  But the online comments are often little more than outrageous rants, inflammatory accusations and incoherent diatribes.  They typically read like a catharsis class from the asylum.

The internet provides people far distant from local stories access to information about criminal cases that would never make their radar otherwise.  This is both the beauty and the curse, as it not only serves to enlighten people about injustices and improprieties happening elsewhere but provides access to every angry ax-grinder.  It’s a toss up whether there are more of one than the other.

And with this knowledge comes the egalitarian belief that all opinions on a subject demand airing.  It’s one thing to post a comment to a news story, or on a blawg about a story or case.  To the extent the comments are just nuts or irresponsible, they can be moderated.  To the extent they allow the free flow of ideas or views, there’s no harm.  But there also isn’t any reason to believe that the writers are positioned to influence any decision-maker.

When people move from the discussion amongst themselves to reaching out directly to the decision-makers, it’s an entirely different story.  Judge Schneider says, “by and large, aren’t sending the letters to peddle influence or try to meddle in affairs where they don’t belong.”  I think otherwise.  I think that’s precisely what they are doing, seeking to influence the court’s decision by making sure the court knows what “concerned citizens of this country” think. 

As has become brutally clear from reading and moderating the comments here, people think their opinions are extremely important.  So much so that they are often the grist of battles, going to the mats to prove their right.  Often insightful, sometimes hysterical, they usually reflect very strongly felt beliefs.  That doesn’t make them necessarily valid, or even intelligible.  There’s a bizarre tendency to proffer a firmly held opinion that’s utterly devoid of basis.  I particularly love the legal insights on nuanced issues by non-lawyers.  “I don’t know nothin‘ about birthin‘ no babies, but…”  And there’s an inverse correlation between knowledge and the need to express one’s opinion that’s just stunning.

Yet we’ve reached that stage where every person with a strong opinion feels empowered, if not compelled, to express it.  If this stopped a news stories and blawgs, no harm done.  The worst that can be said is that it eats up bandwidth with nonsense.  Sending them to sentencing judges, however, raises the ante.

Although various courts might approach the pre-sentence letter situation differently, the judges all seem to agree that there is little or no value in letters en masse from people with no direct connection to a case. Of the letters sent to Grigsby about Gregg, more than half were from out of state, mostly from people who identified themselves as interested animal lovers who wanted to see Gregg get the maximum sentence allowed.

“A judge is not and should not ever be swayed by that,” said [Ric] Simmons, the law professor. “We don’t sentence people by popular referendum.”

It’s hard to imagine a judge admitting that a wealth of letters from people lacking any connection to a case would influence her judgment.  But if it did, there’s an awfully good chance that no one would ever know.  Indeed, the judge might believe that popular opinion played no role in her decision-making, but judges are human, and humans are susceptible to influence.  Humans are also poor at assessing the extent to which their views are formed by others, as we all want to believe we’re independent thinkers and are only motivated by the highest and best aspirations and goals.  We tend not to see ourselves faltering.

So what’s next, a letter writing campaign whenever a case occurs that causes passions to swell?  This is hardly far-fetched.  Nor is it sufficient to disclose letters sent to the judge to all counsel, thus shifting the burden to counsel to either come up with a letter writing campaign of their own or to argue against any member of the public who fancies himself the spokesperson for all right-minded people.

It’s one thing for parties to a case to submit to the court letters in support of their cause, but our current empowerment of public opinion has to stop at the courthouse door.  Hopefully, judges mean what they say when they claim that they neither read such letters nor entertain public influence.  But I wouldn’t trust every judge to be so pure, no matter how well-intended.  Comment on the internet all you want, but keep your letters out of the courtroom.  You don’t get a vote on sentence.

H/T Bad Lawyer

The presumptive suicide of Rutgers student Tyler Clementi is a potent one for use to make any number of important points.  It’s similarly potent for abuse, as tragedy invariably is, by seizing upon this poor young man’s death as the hook for tangential, or even completely unrelated, agendas.  The former is a teaching moment.  The latter is reprehensible.

Dan Solove, at Concurring Opinions, offers the responsible view.

From the facts I’ve learned thus far, it remains unclear precisely what motivated Ravi and Wei’s actions.  What is clear is that this case illustrates that young people are not being taught how to use the Internet responsibly.  Far too often, privacy invasions aren’t viewed as a serious harm.  They are seen a joke, as something causing minor embarrassment.  This view is buttressed by courts that routinely are dismissive of privacy harms.  It continues to persist because few people ever instruct young people about how serious privacy invasions are.   Another attitude that remains common is that the Internet is a radically-free zone, and people can say or post whatever they want with impunity.

The fact that we don’t know either Dharun Ravi’s intent in posting videos of Clementi online, or the thoughts that went through Clementi’s mind in deciding to jump to his death, precludes any responsible person from imposing their notion of the wrong done, or extrapolating from it greater messages or calls to action,   Yet that’s exactly what many have done.

Was this a prank gone horribly wrong, an example of bullying, whether generic or online, or a hateful attack based on Clementi’s sexual preference?  From the single bit of information available, a twit by Ravi, it appears that he thought it quite the joke:

‘Roommate asked for the room till midnight. I went into Molly’s room and turned on my webcam. I saw him making out with a dude. Yay,’

Whether he knew his roommate’s sexual preference is unknown.  Whether he harbored any ill-will toward gays is unknown.  Whether he meant to hurt Clementi is unknown.  I can easily see him explaining himself, saying, “Come on, dude, it was just a joke. Chill out.”  It’s quite possible that Ravi’s purpose was more nefarious, but to impute such motive without basis is irresponsible.  To then take such imputed motive and use it to further an agenda is disgraceful. 

The death of this young man is a tragedy.  Whether this online airing of his private moment drove him to suicide, was the straw that broke the camel’s back, somewhere in between or entirely unrelated, will never be known.  The secret truth of Clementi’s purpose died with him. 

It’s fair to assume that Clementi’s sexual preference, that the video of his encounter with another man, was a significant motivating factor.  To use this tragedy to urge and educate about tolerance and sensitivity toward gays presents no problem, regardless of whether it’s an accurate assessment or not.  This is a worthy goal regardless of what role sexual preference played in Clementi’s decision. 

But to use this as a call to action for a new crime or enhanced punishment is an abuse of this tragedy.  The abuse of tragedy to further irrelevant agendas has become so common that we barely notice anymore.  We’re particularly blind when we happen to like the disconnected agenda, happy to see any outcome, no matter how tragic and irrelevant, used to further a cause in which we believe. 

This tragedy has also been seized upon by applying the pejorative “bullying” to it, despite a near total absence of connection whatsoever.  Bullying has become a trendy cause, both because it’s a very real problem  as well as a  to deflect criticism and responsibility, and a facile means to create victimhood whenever feelings are hurt.  Vague notions like bullying, which are as easily derived from the sensibility of those hurt as those doing the hurting, have enormous potential for misuse.

But to use this as a call to action against bullying, and particularly cyber-bullying, is an abuse of this tragedy.  While Ravi’s prank, if that’s what it was, was callous at best and came at Clementi’s expense, it demonstrates the stunning insensitivity rather than an intention to bully. 

Mike Cernovich at Crime & Federalism  made an important point by putting this tragedy in real-life context.

Clementi’s roommate was an 18-year-old boy.  Although 18 is old enough to die in Iraq, 18 is not a man. An 18-year-old brain isn’t fully developed.  Most of us – especially we males – who are free and successful people are free and successful because of luck.  

The stupid shit we [did] didn’t have consequences.  We embarrassed and ridiculed people, or we joined the mobs in laughing at others unlike us.  Fortunately our victims did not kill themselves.

What if they had?  Would our pranks had taken on a greater moral significance?  Must we measure a boy’s conduct based on his motives, or upon the consequences?  

Or should we stop looking at this boy?

Regardless of whether Ravi’s conduct was a stupid, schoolboy prank or an attack on Clementi’s sexual preference, it’s too late now for Tyler Clementi.  But if you want to take a lesson from this tragedy, here it is:

Do you speak out against bigotry?  When people oppose gay marriage, do you remain silent and polite, like a passive-aggressive beta?  When instead you should say, “Get the fuck out of here with that homophobic bullshit.”

Most of us dare not offend, and so we tolerate the intolerable.  We say that opposing equal rights for gay is a matter of “reasonable dispute.”  We say that not because it’s true, but because we lack to courage to stand up against hate and bigotry.  We use politeness as an excuse for cowardice.

If each of us took responsibility for what happens in our society, large and small, and showed the courage to call out those who create the culture where bigotry, lies and cowardice thrives, Ravi’s conduct wouldn’t have altered Clementi’s life choice.  Rather than shame, Clementi might have ripped Ravi a new one for his behavior, whether a prank or an attack. 

Imagine if Tyler Clementi’s reaction was to metaphorically (or maybe not) smack his roommate upside the head for what happened rather than kill himself.  There’s far more to the interaction than shame for his sexual preference, but succumbing to his hurt feelings rather than standing up for himself.  This culture of cowardice not only prevents us from confronting wrongs, but compels us to suffer in silence and bear the consequences rather than stand up for ourselves. 

Ironically, the same tragedy that gives rise to Mike’s point about showing the courage of speak out against wrongs will be used by those being called out, crying that they are the victims of the bullies.  To recognize this, unfortunately, requires a depth of understanding that most people lack, which is why we can’t seem to move beyond these tragedies.  Standing up to wrongs takes character, courage and understanding.  These traits are not popular anymore.

An email from Stephanie West Allen started me thinking.  She wondered why happiness was suddenly all the rage.  Next weekend, there will be the First Annual (can there be a first annual?) Global Happiness Summit, which struck Steph as “a bit odd.” 

Odd enough that Bruce Carton tried to entice Three Angry Lawyers to attend by offering to pay their admission.  If Carton had only offered airfare and a decent hotel suite, he might have had some takers, even though the promise of the Summit was a bit, oh, vague.

The Global Happiness Summit will be the most important and dynamic summit in the history of the happiness movement, bringing together hundreds of industry, government and visionary leaders, research scientists and accomplished students from all over the world.

Apparently, the need for happiness has displaced issues like Global Warming to the extent of diverting the attention of such deep thinkers as Amy Coget, Ph.D., seen here preparing for class.

Then there’s the report in the Harvard Gazette of former President Derek Bok and his wife, Harvard Fellow, Sissela Bok, of their studies into happiness.

The couple is well-schooled in the topic. Derek Bok recently penned “The Politics of Happiness: What Government Can Learn From the New Research on Well-Being,” while his wife Sissela is the author of “Exploring Happiness: From Aristotle to Brain Science.”

In relating happiness to the academic realm, Derek Bok said less attention should be placed on the drive to develop a competitive workforce, and more should be geared toward creating a better-rounded education.

Developing “ skills in the workplace comes at the expense of things that make people happier, like art and music and civic engagement … exercise, sports, and athletic pursuits,” said Bok.

Why is all this brain power going into the subject of how to achieve happiness?   The only answer I could come up with is that people must feel particularly miserable lately, giving rise to this cottage industry in happiness.  

Sure, times are tough.  But they’ve been tough before.  All it took was a cute slogan (“when the going gets tough, the tough get going”) and maybe a decent song and dance movie to snap us out of it.  Then there was anti-depressants, mood elevators, to help.  Now there’s a Global Summit.  With balloons.  And no less a scholar than Derek Bok informing us that we need to develop skills to make us happier, because work is a downer. 

You might think I’m about to launch into a rant about the value of hard work, but you would be wrong.  Bok is absolutely right, though I can’t believe he wasted time studying the issue to arrive at his conclusion.  I could have told him that.

I’ve got a laundry list of things that make me happy.  It’s no mystery.  I’m very big on community service and charitable works, and I truly enjoy helping others.  Then there are my interests in both art and music, not to mention antiques.  Exercise, not so much, but that’s just me.

As this trend toward achieving happiness is gaining momentum, and since I like happiness as much as the next guy, I’ve been giving a great deal of thought as to how we, as a society, and I, as a member thereof, can help to further the agenda.  My plan is simple.  Rather than wake up tomorrow morning and resume the drudgery that comes with working for a living, perhaps I will gaze upon an Old Master while humming a cheery tune.  When the mood strikes, I will go out and find someone needy and offer them my best wishes for their finding happiness. 

But, it seems to me that their happiness will revolve around having something to eat.  That means someone has to grow or raise some food.  Someone else has to slaughter it, and another person has to move it closer to where my hungry new friend is situated. Then it has to be packaged, moved again, and cooked.  It would then fall to me to buy it and hand it to my buddy so that he can chew at will.  Ah, then I’ll achieve happiness.

All the people along the supply chain, however, might not be nearly as happy as I am.  The farmer might want to sleep late.  The trucker might want to be home with his family.  The cook, well, might not feel like cooking.  And I might not have the money to buy my new friend food if I don’t work.

There’s a disturbance in the force.

Upon further reflection, my scheme for happiness has some holes in it.  It would, without a doubt, be just wonderful if we could limit ourselves to doing the things that make us happy.  Maybe even do some things that don’t, if only to support our happiness.  Except that there’s much to be done just to put a morsel in my hungry friend’s mouth.  The crops won’t wait until the farmer feels like doing the extremely difficult, unpleasant and time consuming work of farming.  The rancher’s herd gets hungry, just like our children, and won’t wait until he’s done being happy to feed them, just like our children. 

Happiness comes with a price.  It requires work to make it possible, since all the components that go into our happy lives have to be performed by someone, and that means one person’s happiness comes at the expense of another’s.  But even our happiness isn’t free.  Other than Maynard G. Krebs, few among us are able to indulge our happiness without having to fund it or fuel it.  No one is handing it to us with a broad smile, saying “enjoy!” and walking away.

Yet this belief that we can enjoy happiness without enduring the misery has become the trend.  It’s everywhere, a pervasive notion that life offers us a free ride if only we knew how to hop on board.  Carrying around a bunch of smiley face balloons isn’t going to cut it.  Closing your ears to harsh words and pretending everybody loves you doesn’t fool anyone.  And it’s still a tough world out there.  Just ask your kids, who have come to the realization that they will be paying for your medical care until their death absolves them from debt.

I had a talk with my kid the other day, who was feeling a bit overwhelmed by the full-frontal attack of responsibility as he stared budding adulthood in the eye.  “I’m not happy,” he told me.  He wanted to be three years old again, where his every need was taken care of and his happiness was the focus of all around him.  “Sorry, kiddo,” I explained, “but there’s no going back.”  One way or another, life catches up with all of us.”

Wearing my best Ward Cleaver smile, I explained that if he gave some hard thought to the things that mattered to him now, and put in the effort to position himself so that he could spend his days doing things that mattered, he would feel a sense of satisfaction with himself.  It wasn’t all happy, as in a day of uninterrupted videogames, but it would provide both a sense of accomplishment, which brings happiness, as well as a certain assurance of comfort, also a happiness factor.  Still, it was going to take some hard work to be happy.

I won’t be taking up Bruce Carton’s very kind offer of paying my admission to the First Annual Global Happiness Summit.  I don’t need it, and don’t think I will really like what they have to say.  More importantly, I’m pretty darn happy already.  I just don’t feel the need to broadcast it and make all those other people feel even more miserable about themselves.  My guess is that if you feel the need to go to the Summit, you’re never going to be happy no matter what.