Warning: Coarse Language Ahead.  Marco Randazza has a fresh mouth.  He makes no excuses, and uses it not only to kiss his two babies (and his lovely wife, leaving us all confused as to what she sees in him), but to channel Lenny Bruce.  If Marc wasn’t around, we would have to invent him, as he’s got both the balls and brains to keep the rest of us honest.

In his post on the Dr. Laura debacle, where he’s one of the few (maybe the only one) who is honest enough to allow that her castigation for use of the “N-word” was wholly disingenuous, Marc argues in support of a person he despises.  This is the core of a First Amendment lover, that he can hate what she says while defending her right to say it.  It would have been easy to argue that the combination of her use of the word with her otherwise bigoted views renders her speech outrageous.  Marc didn’t take the easy way out.

But his second post on Dr. Laura, at the needling of Venkat Balasubramani (whose name I’ve gratuitously tossed in here), squares up the pervasively mistaken grasp and abuse of the First Amendment by no less a potential presidential candidate than Sarah Palin. 

Marc takes aim and then destroys this bit of abject stupidity.

Dr. Laura isn’t the first one to try and bamboozle us by crying “First Amendment,” when the First Amendment just doesn’t belong in the picture.

A number of years ago, I was on South Beach with Jennifer. She was sunbathing topless, which is normal on South Beach. Some perv walked by with a camera, and did a little behind-the-back maneuver — trying to surreptitiously snap a photo of her. When I got up and confronted him, he actually said that he had a “First Amendment right” to take photos there, since it was a public place.

He was absolutely right. The First Amendment protects his right to take photographs in a public place.

For that reason, I did not call the police. I just beat the shit out of him until he gave up his camera, and then I threw his camera into the ocean.

No First Amendment problem there.

Boom.  For those who prefer a clear, concise rule, Marco offers that as well.

The First Amendment protects you from the government. The First Amendment does not exempt you from an ass kicking by your fellow citizens.

Lest anyone be disturbed by Marc’s violent behavior or the irony of a guy who defends pornographers being troubled by a topless picture of his wife, bear in mind that he’s got a very hot wife and very hot daygo, wop, guinea, greaseball, Italian blood.  While Beta males may be all the rage amongst the iPad set, there’s nothing wrong with having some balls.

Over at Volokh Conspiracy, lawprof Orin Kerr posts about the 6th Circuit decision in McKenna v. Edgell, where the court affirms the lower court’s refusal to endow police officers qualified immunity.  Shocking, and Orin contends that the decision “reflects several critical errors and misunderstandings.”  It’s my pleasure to help Orin to understand.

The facts, as written up by Orin:

Following a 911 call, police officers were dispatched to a home to help a man who was alleged to have trouble breathing. The officers arrived at the home and found the man on his bed. The officers tried without success to get him out of bed, and in the course of getting him out of bed the officers ended up putting the man in handcuffs. (The man says the officers cuffed him, and then he became upset; the police say the man first became violent and then they cuffed him.) While the police were there, they looked around the house.

The jury found:

[D]efendants Honsowetz and Edgell intentionally committed acts that violated the plaintiff Scott McKenna’s federal constitutional rights not to be subjected to an unreasonable search or to excessive or unreasonable force during an arrest.

Outrageous, right?  The question was whether the police were acting in their “medical response capacity” rather than their law enforcement capacity, since the former would have entitled them to qualified immunity.

If the officers were acting in a law enforcement capacity, however, then the officers are liable because it is clearly established that (1) “police violate the Fourth Amendment when they handcuff people whom they neither suspect of criminal wrongdoing nor believe to be a danger to themselves or others” and (2) that a person has a right “to be free from unreasonable searches, including a warrantless search in the absence of exigent circumstances or some other warrant exception.”

This, Orin contends, is just plain wrong.

Qualified immunity requires the court to answer, as a matter of law, whether a reasonable officer would know his conduct was constitutional. This inquiry requires courts to look to cases with similar facts, or at least clearly announced principles from cases with less similar facts, to ask whether the officer violated a clearly established right.

This erroneous set-up, Orin says, leads to further complications:

The Court’s incorrect framing of the issue — that qualified immunity hinges on whether the officers were acting in a “law enforcement” or “medical responder” capacity — then forces the court to confront the puzzling question of who gets to classify the “capacity.” At this point we’re veering off into constitutional metaphysics: The panel has invented a non-existent test, and it then confronts the puzzle of who gets to apply the non-existent test it has just imagined. 

The court’s subsequent effort to explain and apply the test strikes me as extremely muddled. The court says that this a jury question because the court has no special expertise and the judges would just try to do the same thing the jury did. But this begs the question: What kind of test is it? What was the test that the jury was supposed to apply, and that a court should apply? We only get a few hints here and there in the opinion. For example, the court tells us, the test isn’t only that the officers were officers. But exactly what the test means is unclear. 

There’s nothing terribly puzzling about any of this, but I can completely understand why it would appear so.  The problem stems from the reality that we function under a basic rule that is so widely ignored, so functionally meaningless, that when applied, it seems shocking and outrageous.   It’s not novel. It’s clear as can be.  It’s as well-established as possible.  A warrantless search and seizure is unlawful.

Obviously, the police perform functions other than law enforcement.  They save poor kittens stuck in trees.  They help pregnant women deliver babies, when they aren’t ticketing or beating them or their husbands.  They help motorists who have epileptic seizures on the road via taser therapy.  That sort of stuff. 

This is described as the medical response function, which I’m more inclined to characterize as the public safety function, as it extends beyond mere medical response to all the things an officer does to help people that doesn’t involve law enforcement.  There’s no question that, in the court of this function, the rules applicable to law enforcement are not in force.

But there’s often some confusion about characterizing the nature of police conduct.  There’s little doubt that the police entry into Scott McKenna’s home was lawful under the public safety function, as they were responding to a 911 call for a medical emergency, that McKenna was having a seizure or choking.  So far, cool.  The problem stems from their confusion as to proper medical protocol, first handcuff and search and then resuscitate.  Sequencing can be very tricky, apparently.

The facts were in dispute, with McKenna’s daughter, Alexandra, who called 911 for her father, explaining event thus:

The course of events after the officers entered McKenna’s bedroom is disputed. Alexandra testified that she “couldn’t see exactly what was going on” for some period, because she was talking to one of the officers. However, she also testified that this period was “for about a minute . . . . So I was standing there watching it all.” According to Alexandra, the officers instructed Scott McKenna to get out of bed and to get dressed. McKenna got up and started to pick up his pants, but then sat back down on the bed and began to lie back down. Alexandra testified that the officers then “picked him up by his hands, and they like pulled him up from the ground and told him to put his pants on.” McKenna then sat back down and, according to Alexandra, “was telling them to stop.” According to Alexandra, the officers continued to try to get McKenna out of bed while McKenna “just laid back down.” Finally, Alexandra testified, the officers handcuffed McKenna’s wrists and ankles, and only then did McKenna begin struggling with them.

The police version, not surprisingly, was different.

Contradicting the testimony offered by McKenna’s daughter, the officers said that after they found McKenna unresponsive to verbal questioning, Officer Edgell placed his hand on McKenna’s upper arm or shoulder to try to rouse him. Officer Edgell testified that when McKenna did rouse he immediately became aggressive and violent, pushing them and causing Officer Honsowetz to fall backwards. The officers asserted that it was necessary to handcuff McKenna because of his violent behavior.

Obviously, this hugely different version of events needs to be determined.  Who better than a jury?  The jury credited Alexandra’s testimony and rejected the police officers.  The fact that the officers also searched the house probably didn’t add much to their credibility, given their inability to make up with a good story to explain it.  It likely didn’t help either that Alexandra provided a clear, fact based recitation of what she observed, while the cops resorted to the typical, conclusory “aggressive and violent” mantra, apparently seeing no opportunity to slide furtive movements into the testimony.

Orin finds this problematic, in that it shouldn’t have been put to the jury whether the officers’ conduct was within their law enforcement or medical response capacity, since the proper inquiry for qualified immunity was whether their conduct was reasonable under the circumstances.    The Circuit held there was no special trick to the fact-finding and the jurors were singularly suited to the task. Orin, not so much.

Distinguishing between the law enforcement and medical response functions isn’t difficult.  Given that the jurors found Alexandra’s testimony credible, there is no reasonable view of the facts that could conceivably justify the officers’ conduct as being within the medical response function.  They entered as Florence Nightingale, but behaved like cops. 

Once the officers’ conduct found no justification under their medical response function, there was absolutely no view that provided any reasonable basis to conclude that it wasn’t a facial, flagrant, unlawful search and seizure.  If no finder of fact could find the conduct reasonable, then there’s no reason to put the question to the jury.  The court serves a gatekeeper function of putting only those questions to a jury that require a determination, and not those which are conclusive as a matter of law. 

But what appears to really befuddle is the idea that there shouldn’t be some complicated, prolix analysis of the officers handcuffing Scott McKenna, even though no crime was conceivably involved and there was no threat to officer safety, and then searching his home because, well, because they could.

It’s inconceivable these days that such conduct could be condemned by application of the rule, that police cannot engage in a warrantless search and seizure.  Our attention is so constantly focused on the exceptions, the excuses, the explanations, that the very notion of the dog wagging its tail is unthinkable.  Every analysis doesn’t have to be sophisticated, covering the myriad of exceptions.  Every analysis doesn’t require that we ultimately find (or at least try to find) an excuse to justify the police conduct.  Sometimes, their conduct is just totally, completely, absolutely, 110% unlawful, and there’s no exception, excuse, explanation that comes close to being worthy of discussion.

Imagine.  The 6th Circuit applying the black letter law.  No wonder its confusing.  When is the last time any court did that?

The FBI review of the North Carolina’s crime lab is in.  It’s not good.

The government-ordered inquest by two former FBI officials found that agents of the State Bureau of Investigation repeatedly aided prosecutors in obtaining convictions over a 16-year period, mostly by misrepresenting blood evidence and keeping critical notes from defense attorneys.

The review of blood evidence in cases from 1987 to 2003 by two former assistant directors of the Federal Bureau of Investigation calls for a thorough examination of 190 criminal cases, stating information that could have helped defendants was sometimes misrepresented or withheld.

“It impacted the decisions that were made — it could have,” report author Chris Swecker said Wednesday. “Let me step back and make sure you understand: It could have resulted in situations where information that was material and favorable to the defendant was not disclosed.”

In three of the cases, the defendants were executed. 

The failings don’t prove that the executed defendants were innocent, but that the system failed and it’s possible.  At it’s absolute best, it shows that the North Carolina crime lab withheld Brady.  In the middle, it manufactured reports for the purpose of aiding the prosecution to convict.  No matter which way you twist it, it’s bad.  Very bad.

We have this great big complex system which, if every cog meshed perfectly and every widget did what it was supposed to do, would work fairly well most of the time.  The problem is that it’s replete with broken cogs and missing widgets.  Those failures are usually the nice people whose fingers are necessary to make the system happen, but end up in a nose, ear or eye.  No doubt the hard-working crime lab people believed that they were doing the right thing by making sure the guilty got convicted.  But as Murray Kempton used to say, there they go again, framing the guilty.

That people who serve a critical function in the system want to be a part of what they perceive to be the solution comes as no shock.  They pick the side they believe to be righteous and do what they can to help it along.  If that means fudge some tests, or hide some bad results, it’s all in the name of justice.  As I’ve tried to make clear many times, our justice isn’t their justice.  There are few things less compelling than fools who justify their actions in the name of justice.

But what of the three dead men ?

—Desmond Keith Carter was executed in 2002, a decade after he was convicted of first-degree murder for the fatal stabbing of his neighbor in Eden. An SBI analyst reported a confirmed presence of blood on an item in the investigation. That overstated the results because a follow-up test was negative due to an insufficient sample to test.

Carter confessed that he killed Helen Purdy after going to her home to borrow money so he could buy drugs.

— John Hardy Rose was convicted of first-degree murder in 1992 and executed in 2001 for the slaying of Patricia Stewart in Graham County. An SBI analyst reported that an item in the investigation gave chemical indications for the presence of blood and said that there wasn’t enough quantity in the stain to test further. In fact, the analyst had conducted two follow-up tests, one of which was negative and one of which was inconclusive. Neither was reported.

Rose confessed to the stabbing death; testing on other items found in Rose’s car revealed blood consistent with victim Patricia Stewart.

— Joseph Timothy Keel was executed in 2003 for the 1990 slaying of his father-in-law in Edgecombe County. An SBI analyst reported that there were indications for the presence of blood on an item in the investigation but that there wasn’t enough evidence for a conclusive identification. That report failed to reflect an attempt at a confirmatory test that came up negative.

Keel confessed to the shooting death of Johnny Smith.

No “smoking guns,” given that each defendant confessed to their respective murder.  On the surface, it doesn’t look as if any great injustice was done.  Sure, the labs had issues, but isn’t it about making sure that they guilty get what they deserve?

If only it was so simple.  In this complex system, there is an interconnection between evidence, the inducement of confessions, the decision to bring a capital prosecution and the strength of evidence in determining a plea offer.  Without researching the particulars of any case, there is no rational view of the criminal justice system that doesn’t take into account the myriad of influences the produce any particular outcome. Like Chaos Theory, a bad lab report changes how all the other factors fit together and, by definition, impacts the outcome.

This doesn’t mean that any of the three dead men were innocent.  It does mean that the executions of these three men are now in question, and we can never replay how these cases wound their way through the system to end up in death.  There are no mulligans here, and there is no way to bring back the dead to ask them what they want to do now.

As long as there are human fingers involved in doing the work upon which the system’s integrity relies, there will be failures.  Even if crime labs become putatively “independent”, as opposed to captives of the prosecution, there will be lab techs who believe they are doing God’s work by putting criminals in prison.  It will be an improvement, but not a perfect cure. The human mind is an ugly thing, doing wrong and yet feeling pretty darn good about it.

There is only one way to eliminate the potential of executing someone who doesn’t “deserve” it, whether because he’s innocent or because the system cheated him out of a half-fair chance of fighting. End executions.  We’re just not good enough at this whole criminal justice thing to be worthy of playing God.

Have you ever noticed how people latch onto seemingly innocuous words which, if you’re not paying very close attention, just don’t seem to be worth all that much thought?  You know, like when the customer service rep tells you that they are “processing” something, even though it’s not going to come out the other end as American cheese?  Well, the new word is Database.  Add it to the list.

From the Orlando Sentinel :

When Janet Lovett took her 7-year-old son to the city’s Splash Park this spring, she never thought police would slap handcuffs on her and haul her off to the Lake County Jail after her T-shirt and bra became wet.

Lovett was arrested because she refused to give an officer her name after she was told to cover up. She was booked on a misdemeanor count of obstructing an officer without violence.

And what brought the heavy hand of the law down upon her wet t-shirted motherly shoulders?

Cpl. Tammy Bozadjian said she needed Lovett’s name to put into a city database.

“The defendant [Lovett] became upset and would not provide her information,” Bozadjian wrote in the incident report. “I again explained that the information was only for the data base. She again refused to provide the information, stating that she needed to speak with her husband first. I then informed the defendant that if she refused to provide her information that she would be placed under arrest.”

Dammit, Janet.  It’s only for the database.   Of course, there’s a backstory, where it turns out that Janet Lovett is a recidivist wet t-shirter, though there’s no indication whether the database is implicated only after a women’s t-shirt is soaked multiple times or merely one time will do.

While this scenario plays over and over when a person engages in contempt of cop, it’s ordinarily a matter of the officer directing the person to “move along” or “stop filming or you’ll be raped in jail.”  There’s now a new excuse to be added to the pantheon of Police commands.

The good news is that prosecutors refused to pursue the charges, apparently being as yet unaware of the need to put every mom in a wet t-shirt into the database.

“What kind of database would they put her in? A database for wet T-shirt wearers?” Marks asked. “She wasn’t there to cause trouble…They’re either absolutely incompetent or they don’t know the law.”

Lubins said police asked for her name because they were called out to the park and told that she had been warned before about her attire.

“We would be remiss if we didn’t take down her name,” he said.

Let it never be said that I was in favor of the police being remiss in their duty to the database.

H/T The Turk

Via Berman, welcome to the future.  It may have started as the movie Minority Report, but it should come as no surprise that an academic says he’s done it.  Richard Berk, a professor of criminology and statistics at the University of Pennsylvania has developed software to predict which defendants on probation are most likely to commit murder or be murdered.

If the software proves successful, it could influence sentencing recommendations and bail amounts.

“When a person goes on probation or parole they are supervised by an officer. The question that officer has to answer is ‘what level of supervision do you provide?’ said Berk. It used to be that parole officers used the person’s criminal record, and their good judgment, to determine that level.

“This research replaces those seat-of-the-pants calculations.”

The software is already being used in Baltimore and Philadelphia, and a later version which Berk claims will predict other criminal behavior as well is ready for rollout in D,C.

The point of the program is to aid parole officers in determining the level of supervision a parolee requires.  By “seat-of-the-pants” calculations, Berk refers to P.O.’s making their own decisions about how to supervise their people based on their gut or anecdotal understanding. 

The immediate reaction, naturally, is to see this as fulfilling the catch-22 failure told by the movie, where people are arrested and imprisoned based on things they have yet to do and, since they’re incarcerated, never in fact do.  In other words, we pre-arrest and the crime is avoided, with the only kicker being that the guy imprisoned didn’t do anything. 

In this instance, however, the application is somewhat different, since its being used to help P.O.s supervise parolees and probationers.  The distinction is that these are people who are already under supervision by dint of their sentence anyway, and may be subject to greater or lesser oversight based on the purely subjective beliefs of the P.O.’s. 

Certainly, parole officers have no magic way to distinguish the person in need of greater supervision.  The current rule of thumb is compliance with direction, gainful employment and not making waves is a pretty good indicator of a good parolee, and there’s nothing to suggest that Berk’s program would come out any differently.  Should there be a program that helps P.O.’s identify others who are flying under their radar, and help to prevent them from returning to a life of crime and violence (and thus keep them from returning to prison, not to mention save the life of  a victim), that’s a good thing.

The fear, of course, is that our society, and particularly our politicians, so adore a magic bullet solution to intractable problems that the chance of this software being turned from an aid to a pre-emptive excuse to imprison people for what they have yet to do looms large.  If this program works, it’s the perfect candidate for a slide down the slippery slope toward Minority Report.  Quick, easy, and unless you or your loved one happens to be identified as inchoate criminal, a risk most people are prepared to take to stop crime.

We had vast experience with the reliance on “science” as a fix for all that ails the criminal justice system.  From fingerprints to DNA, it’s been embraced as a way to remove the human element and replace it with a determination based on scientific certainty.  We love certainty, and toss in the word science and minds shut down and a warm glow covers us as the responsibility for being right shifts to the prophets of empiricism.  Of course, history has also shown that scientific certainty is anything but certain, as we continually learn how yesterday’s absolute certainty turns into tomorrow’s mistaken reliance on junk science.

It was only a matter of time before somebody came up with this software, and it appears that Prof. Berk, based on his past scholarly works and interests, means well.  On the other hand, the road to prison is paved with good intentions.  No matter how well intended Prof. Berk may be in his efforts, we can never negate the abuse to which his software will be put in the hands of our government.  

Hung on 23 out of 24 after 14 days of deliberations, Rod Blagojevich is back to living large. 

“On every charge except for one, they could not prove that I did anything wrong,”a defiant Rod Blagojevich said shorty after the jury was dismissed. “I told the truth from the very beginning.”

Yeah, right.  It was a hung, not an acquittal.  A little humility would go a long way right about now, but that’s not Blago’s way.  Of course, the question looming over this outcome is why, given the near-universal belief that the Patrick Fitzgerald mob had him nailed to rights.

In an op-ed in the New York Times, Scott Turow (who everybody loves, me included), explains why he thinks the Blago jury hung.  Turow is one fast writer, obviously, as the ability to not only produce an op-ed within hours of the mistrial and get it placed in the Times is impressive.  There aren’t too many people who could produce a thought-provoking commentary that quickly.  Turow explains:

After all, government wiretaps revealed Mr. Blagojevich threatening not to sign legislation beneficial to the harness racing industry unless he received a $100,000 campaign donation from one race track executive. He even threatened to hold up an increase in state Medicaid reimbursements for pediatric cases until the chief executive of Illinois’s leading children’s hospital contributed $50,000.

Yet the unwillingness of one or more jurors to convict Mr. Blagojevich of anything but bare-faced lying makes some sense. I suspect the jury’s indecision might have been a reaction at some level to the hypocritical mess our campaign financing system has become, especially in light of recent Supreme Court jurisprudence about political donations.

He then goes on to discuss the failings of Citizens United and the damage it’s done to political speech and the American psyche.  So were the jurors debating the cynical demands of the funding of politics, the hypocrisy of our expectations of purity and moving television commercials, during their 14 days of seclusion?  Were the emotions so mixed that these jurors realized that Blago’s words on tape reflected the unreasonable demands of a complex and inconsistent system of campaign financing rather than any malevolent intent of a man who wouldn’t spend enough for a decent haircut?

Nah.  Not that it isn’t a very thoughtful position, but Turow ascribes an awful lot to these jurors.  Given how few people can name the three branches of government, the idea that this hung jury resulted from ambivalence brought about between the Massey and Citizens United decisions is a rationale only a lawprof could love.

On the other end of the spectrum, Norm Pattis  argues that the government blew it.

The United States Government huffed, puffed and blew an elected governor out of office in the State of Illinois. But at the end of the day, all prosecutors have to show for their efforts in the prosecution of Rod Blagojevich is a single count of making a false statement. The jury could not reach a verdict on the remaining 23 counts.

I am no fan of Blagojevich. The conversations he reportedly had on tape were ugly. He is a guttersnipe. But he is a politician, after all. He is such stuff as Congressmen and Governors are made.

But I wonder how many lies the government told Blagojevich during the course of its investigation? I wonder how many witnesses were intentionally misled? I wonder how often jurors were kept in the dark about how prosecutions of this sort are made?

I wonder why so many questions when Norm already knows the answers.  So did the government huff and puff?  Mind you, when it was Blago’s lawyer in the crosshairs, Norm wrote that Sam Adam Jr. “fussed and fumed.”  I wonder what Norm’s going to do when he runs out of words that prominently rely on the letter “F”.   Maybe he’ll fret?

But the government didn’t blow the case because it huffed or puffed.  It tried the case with vigor and what appeared to be some darn good evidence.  Audiotapes tend to be quite persuasive, and the fact that the government is authorized to lie through its teeth because it’s an effective tool of law enforcement is nothing new.  We don’t like it, but we didn’t like it before and won’t like it after.  Yet, people get convicted despite being drawn in by government lies all the time.

So now, here’s the real reason.  Via CNN :

Juror Erik Sarnello, 21, told CNN affiliate WLS in Chicago the final vote on whether to convict the former governor of attempting to sell the seat was 11 in favor and 1 against.

“She obviously didn’t see it,” he said about the holdout. “Some things were so obvious to me.”

That’s it, folks.  One juror, a woman, who held her ground for 14 days, that she didn’t see guilt.  Is this a screwy system or what?  It’s likely that we’ll never know for real what went through her mind during those 14 days, whether she gave any thought to Citizens United or didn’t like the way the government lies to get its evidence.  If someone can get her to talk now, she’ll likely try to explain herself in some way to make it appear that she had a reasonable doubt, and sound explanation for holding out. 

Chances are pretty good that there isn’t any good explanation for being a hold-out.  The juror isn’t required to explain herself, either to her fellow jurors or anyone else.  She doesn’t have to give interviews.  She doesn’t have to engage in a philosophical discussion with the other eleven.  She can if she wants, but there’s no obligation.  A person can just decide that she’s unconvinced.

The Allen charge directs the jurors to discuss the case with each other, to listen what the others have to say, to open their minds and consider the thoughts of others.  But there’s no one in the jury room with a gun to her head, telling her to explain herself or they’ll shoot.  It’s enough that one juror says, “nope, I’m not voting guilty.” 

For all the discussion and analysis, whether of the law, the selection of jurors or the facts, it all comes down to the unknown variable, the vote of a single juror, even if that juror’s vote against the will of the other eleven is just because she feels like it. 

Update:  From the Washington Post :

The lone holdout on those key counts was identified Wednesday as a retired woman. Her argument was that Blagojevich was a politician who “was talking to other politicians . . . and he was just talking,” Matsumoto said, referring to FBI wiretaps that the prosecution portrayed as incriminating. “She saw it as no crime was being committed. It was just talk, political talk.”

And from the jury foreman, who voted guilty, guilty, guilty:

[James] Matsumoto said the “major flaw” for the prosecution “was probably the complexity of the case, the amount of information that we had to digest, the length of the judge’s instructions to us. . . .” He said he would like to see prosecutors retry Blagojevich and “streamline the case,” reducing their reliance on witness testimony, “which was sometimes weak.”

Via the Chicago Sun-Times :

“Say it was a murder trial — she wanted the video,” Sarnello said. “She wanted to hear [Blagojevich] say, ‘I’ll give you this for that.’ . . . For some people, it was clear. Some people heard that. But for some, it wasn’t clear.”

And lots more.  Expect those jurors who are enjoying their 15 minutes to appear on morning news shows on a TV near you.

There’s a perpetual love/hate relationship between a blawger and the comments received to a post.  For the most part, they either express their agreement or disagreement, going further to inform that the blawger is either brilliant or moronic.  Orin Kerr had some fun with this in two brief posts.

Orin first noted how brilliant people agreed with him.

One of the consequences of confirmation bias is that we are overly impressed by ideas that we happen to share. It’s a natural instinct, if not watched carefully. If you read something that reflects or resonates with your own views, you’ll agree with it. Upon agreeing with it, you’ll think it is highly persuasive. And if it’s highly persuasive, it’s probably brilliant. You see this often in the blogosphere when bloggers link to someone’s “superb” and “extremely insightful” post. You click on the link, and you’re underwhelmed by the post. But you realize it is strikingly similar to what the original linker thinks about the topic. It’s possible to take our blinders off, or, more realistically, to minimize them. But it often requires some work, and the amount of work that different people give varies considerably.

Orin then offered the flip side, that people who disagree are arguing in bad faith .

I explained before why brilliant people agree with me. I want to talk about the other side of the picture. I’ve come to the realization that people who disagree with me are just arguing in bad faith. How do I know? Well, when I get into an argument, no one who disagrees with me ever says anything I find persuasive. They never even come close. It seems to me that if a person who disagrees with me were smart and acted in good faith, surely he would say something that persuaded me (even if only a little). But since that never happens, people who disagree with me must be either stupid or acting in bad faith. I’m a generous person, so I won’t assume the other guy is stupid. And that leads me to conclude, reluctantly, that people who disagree with me are arguing in bad faith.

I, of course, am above all of this, as demonstrated by my appreciation of Orin’s thoughtfulness even though he’s wrong much of the time. 

To criminal defense lawyers, much of what appears here is consistent with our belief system, our shared sense of fairness and our daily efforts to stem the tide of government overreaching.  Sure, there are some whose ox I’ve gored who tend to disagree just because I’ve proven myself a lousy team player, but that’s more about me than the ideas and positions that appear here.

Other lawyers, those who either practice in different niches, big firms, or for the prosecution, lack the shared experience of criminal defense and either can’t accept the implications that criminal defense lawyers take as a given, or find it flies in the face of their belief system.  Often, people leave comments that leave me with the sense that we’re talking apples and oranges, and I wonder why they feel compelled to bring their apple to my orangefest.

But the biggest issue, when it comes to having a conversation, is that people don’t want to discuss the subject matter in rational terms, but rather to let me know what they feel.  They prefer chocolate to vanilla and chocolate is better, dammit.  This was very evident in my recent post about the Manhattan mosque, where disagreement was expressed by a patriot, a Muslim hater and mourner. all of whom vehemently disagreed with me.  My position wasn’t that I favored building a mosque on Park Place, but rather that the substance of the debate was flawed and that there is a strong belief amongst those of us who worked in the area that the best way of dealing with 9/11 was to rebuild as quickly as possible and get back to life.

No one, myself included, is likely to convince anyone else that vanilla is more delicious than chocolate.  There’s no right or wrong answer to the question of which flavor one prefers.  There are right or wrong answers as to whether the two blocks between Park Place and the Site makes the implicit connection between the locations fatuous, but that doesn’t seem to impact the emotional reaction.  The same can be said for those in Des Moines who still maintain that what happened off Vesey Street gives them property rights and a vote.  They feel it should, no matter how attenuated their claim.

As Orin notes, there are psychological factors at work here that go beyond any individual post or comment.  The best we can hope for is to express views that have some basis in fact behind them and reflect some modicum of thought.  Criminal defense lawyers tend to view their cases through the prism of the police and prosecution, much to the chagrin of our clients. 

We don’t care about their deeply felt expressions of innocence or victimhood.  We care about the evidence the prosecution has in hand and how we can beat it to a pulp.  Don’t be fooled by pandering assertions of empathy.  That’s just a means of making the client feel that we understand so they like us better.  The truth is that any competent criminal defense lawyer fights to win, and that’s based entirely on our ability to build a defense to the prosecution’s case.  No one wins cases by stroking fevered brows.

This allows criminal defense lawyers, more so than any other discrete group, to see the strength of our opposition’s position clearly.  While we have our personal beliefs just like the next guy, we also have professional experience seeing the basis for our adversary’s beliefs through cold, calculating eyes.  Who cares if we prefer vanilla; the question is how we destroy our opponent’s argument in favor of chocolate.

There’s no arguing with emotion.  It’s not rational and needs no basis.  When it comes to choices among equals, the chocolate/vanilla debate, no reason is necessary for one’s preference.  When it comes to debate over issues that are subject to facts and reason, it’s not your agreement or disagreement with me (or anyone else, for that matter), but the strength and clarity of your argument. 

It’s not important that you agree with my position, but why.  If you can’t explain why, in unemotional, objective terms, then your opinion doesn’t matter.  Bear in mind that everyone is not entitled to an opinion.  You may be right, that I’m either brilliant or a moron, but if you want a vote, you better have a reason for your position.

Brian Tannebaum, who is the current President of the Florida Association of Criminal Defense Lawyers, writes about four hours of his life spent listening to a lawyer who has been practicing for 64 years.  He chose not to name the lawyer, though most readers know who he’s talking about.

Yesterday I spent 4 hours at the home of a lawyer who’s been practicing law for 64 years. I became friends with him when he’d only been practicing 48 years, and have had the opportunity to learn from him and even work on good case together. We talked about law, lawyers, legal stuff, court, clients, and judges. The only time the word “computer” came up was when he told me his hands are having a hard time typing these days.

When I look around the internet, and see the lawyers who frequent this place, I wonder from where other lawyers get their advice, tips, mentors, and philosophies.

Let’s stop here and ponder, for a moment, what Brian’s doing.  Brian’s an experienced criminal defense lawyer.  He’s got 15 years of practice under his belt, and he’s sufficiently respected by his peers to be elected the President of the state association.  This is no small feat in Florida, with its extremely active and vibrant members.  And they elected Brian.

Brian’s been trying long and hard to make some points to others, often newer, less experienced lawyers.  In return, some tell him that he’s a clueless idiot, that he doesn’t know what he’s talking about.  These lawyers, with experience in the practice of law between 12 minutes and a few years, know it all.  They write blog posts instructing others how to be lawyers, to try cases, about their vision of ethics and responsibility.  They write of the miracles of technology, how it “changes everything,” and of their entitlement to work/life balance.  There was even a law student who was so bizarrely arrogant as to believe that she knew better than Brian. Yes, they know enough to teach others.

Brian, on the other hand, spends his time with a lawyer with 64 years experience.  He knows that this lawyer has stories and experiences that Brian needs to hear, needs to understand.  He may be a big macher on his own, yet he’s never such a big shot that he can’t learn from a lawyer whose experience dwarfs his own.

Why is it that Brian, with all he’s accomplished, still listens to this lawyer with 64 years experience?  Why is it that so many inexperienced lawyers in the blawgosphere listen to no one? 

None of you have come anywhere near the level of professional accomplishment that Brian has.  You haven’t tried the cases and gotten the verdicts, whether guilty or not (as in his latest jury acquittal).  You haven’t won the respect of judges or your peers.  You’re like tin soldiers, pretending you’re battle-hardened on the internet.  Brian offers you the benefit of his experience and you jeer because his words don’t comport with what you want to do.  You want to be internet heroes.  You want to enjoy the benefits of the law without the hard work.  You want to be the equal of the accomplished lawyer without have achieved any accomplishments.

For his part, Brian turns to a lawyer with 64 years experience to learn about the law.  You turn to each other for comfort and support, so you can indulge in a circle jerk of unaccomplished, inexperienced lawyers who will praise and comfort each other, sending links back and forth about how special you are.  You try to create a reality on the internet that you haven’t earned in the courtroom. 

The lawyer with 64 years experience is one whose accomplishments are legendary.  With neither Google nor faux online friends to bolster a manufactured reputation, this lawyer earned his bones in the trenches, year after year, decade after decade.  No, he probably wouldn’t spend four hours of his life with you, because his time is valuable and he’s unlikely to waste it one some inexperienced lawyer who disdains experience in favor of pagerank.  But he is willing to give of his time to Brian Tannebaum.  That’s because Brian has earned his respect, proven the worthiness of taking up four hours of the life of a lawyer with 64 years of experience.

And you inexperienced, unaccomplished lawyers eschew what Brian has to teach you?  Because you know it all already.

Borrowing from the lingo of museums, Jason Wilson at Slaw urges the need to “curate” the blawgosphere, to manage the ” collective analytical content” produced by lawyers (and other legal professionals, whatever he means by that).  From some unattributed author, Jason quotes:

We’ve just recently latched onto the idea of curation as though it were something new. The need for curation in the old media world wasn’t as obvious as in the internet world because, on the web, ‘everything carries the same weight’ and the average user has difficulty discerning good content from bad. … The buzz word ‘curation’ does carry with it some logic: As the sheer amount of information and content grows, consumers seek help parsing the good from the bad. And that’s where curation comes in. The amount of content available to consumers—much of it free of charge, but scattered across thousands of websites—is growing exponentially every day. At the same time, consumers are increasingly doing independent research and attempting on their own to source important information to support their increasingly complicated lives.

The problem is one I’ve written about before, but the proposed solution, curation, is another matter.  Jason recognizes that this solution won’t be easy.

Curating this growing body of analytical content will be difficult. It suggests a person-machine process of locating and separating good content from bad, and categorizing, verifying, authenticating, and editorializing that content. It will undoubtedly require the creation of a rich taxonomy to help organize and manage the content for later discovery, clean metadata, and a good search engine, and raises issues from data permanency to copyrights to brand dilution.

My initial reaction was to ask, who would the blawgosphere deem to be a sufficiently honest broker to serve as curator?  Who would we accept to tell us whether we’re worthy or not?  A curator, accepted by the blawgosphere, would wield enormous power, the ability to take an unknown, unread blawg and make it famous, or crush it into virtual dust.

It took mere minutes for the offers to roll in.  In the comments to Jason’s post, a comment came in offering the efforts of Legal Informatics Blog, which bills itself as “Scholarly & Professional Commentary on Legal Information Systems and Legal Communications.”  Eek.  I fell asleep just reading the subtitle.  Having never heard of this blog before, it strikes me as an effort by academia to find an underutilized internet niche with which to achieve tenure.  Not my cup of tea.

Then came a comment by Ed Adams,

You’re on the mark, Jason. The ABA Journal has been curating legal news for three years, posting 25-50 stories a day that summarize and link to the most relevant and timely legal news stories from across the web.

And we’re categorizing each story, so readers can quickly find the news that is relevant to them. [Self-serving links omitted to spare your eyes from burning.]  Our traffic has grown by 500 percent. That says, we think, there is an enormous need among lawyers for highly targeted content.

Thanks for playing, Ed.  Don’t call us, we’ll call you.  This from the guy who thinks Legal Rebels underwear and skateboards is a great idea, whose stories obsess over the shiniest gadgets but rarely seem to notice flagrant ethical issues. 

Next came American Lawyer Media, the wannabe giant for-profit enterprise, pitch, via Bill Pollack’s blog. 

We’re in the process of redesigning law.com as a portal to all of ALM’s content.  Is it too late to ask if we should be expanding our horizons, turning law.com into a curation portal for the legal web (or at least the parts of it that we focus our journalism on)?  I’d love to hear from our editors and journalists how they feel about Curation in general — whether we truly have the expertise to become “guides” to the legal web on behalf of our readers.  And if we should pursue that course more seriously.  

Hint, Bill.  Maybe you could take a look at Legal Blog Watch and ask why you can’t seem to get Eric Lippman to actually watch legal blogs? More to the point, you’re in this for the money, and the idea of putting the power in the hands of a corporation that has its own blogs (and blog advertising) to sell is absurd.  What are the chances that we can make fun of your inadequacies while you hold the keys to the blawgosphere? 

I twitted about this problem with Jason yesterday, and he acknowledged that it’s an issue.  He suggested that I might be a curator for criminal defense blawgs.  Putting aside my utter lack of interest in doing anything of the sort, preferring instead to stick a needle in my eye, I responded that while I, naturally, would be the perfect judge of quality and worthiness in the criminal law blawgosphere (sarcasm, you dolts), I suspected that there might be a wide swathe of blawgers who wouldn’t feel exactly comfortable with me in charge.  As I told Jason, I’m pretty sure that those blawgers who hate me will not jump on board.

Specifically, the angst-ridden tortured souls who blawg incessantly about their feelings in grandiose melodramatic posts that draw in the psycho hangers-on, or the posts from lawyers who are trying to conceal their true marketing purposes with simplistic posts, more wrong than right, designed to appeal to those with an understanding of law that aspires to be as deep as a puddle.  They aren’t my biggest fans.

There have been ongoing efforts to manage the blawgosphere, but none thus far has captured widespread acceptance and with good reason.  As much as I agree with Jason that the blawgosphere has become increasingly unwieldy, not to mention embarrassing as blogs pop up spouting inane if not laughably erroneous content, it strikes me as impossible to anoint any person or entity as curator.  There are plenty of people who I would accept as honest broker, but no one whose judgment is so sound that they could be entrusted with the power.

It’s long been my hope that we, the people who toil at blawgs with some experience and regularity, would ride herd over our own and keep the place clean and safe.  But I’m coming to the sad realization that the blawgosphere is filled with too many cowards who lack the fortitude to do the dirty work of cleaning up the mess that others make, and too many self-promoters who feign substantive blawging when their only purpose is self-aggrandizement.  Worse still, I see the blawgers who should be calling out the frauds actually promoting the shills to further their own agendas.

It’s a mess.  We could use a curator, since we can’t keep it clean on our own, but who?

It’s big news.  Huge news.  Ben Field, a former Santa Clara County assistant, was suspended from the practice of law for four years.  This is big enough to make the San Jose Mercury News.

With a brief, nondescript order, the California Supreme Court on Wednesday put a quiet end to the explosive disciplinary case against former Santa Clara County prosecutor Ben Field, turning away his last-ditch attempt to avert one of the stiffest punishments ever levied against a state prosecutor.

A Bar appeals panel upheld the judge’s order in February, based on evidence presented during a lengthy trial last year. The panel found Field violated court orders in a 1995 juvenile case and defied a judge’s orders and concealed evidence in the 2003 appeal of a rape case involving Auguste and another defendant; their case was later reduced to misdemeanors. It also found that he withheld evidence in a 2003 murder case and defied a judge’s orders in a 2005 sex-offender case.

As we’re well aware, lawyers are suspended all the time, disbarred even, without so much as a whisper.  Big deal.  Do wrong, get nailed.  That’s the way it goes. 

But not prosecutors.  Prosecutors, new or experienced, young or old, aren’t held to account.  They are part of the duopoly that protects us from the evils of society (if in doubt, watch the intro to Law & Order, which explains it in somber tones) and must be protected.  Too often, we gripe that a prosecutor did wrong, but without fear of consequences.

Ben Field must have been truly bad.  To suffer a four year suspension, “one of the stiffest punishments ever levied against a state prosecutor,” is tantamount to the death penalty for a prosecutor. Except, of course, he wasn’t disbarred, or imprisoned, or executed.  It makes one wonder how many of his victims suffered worse fates. He was only caught four times, but given the recidivistic tendencies of such wrongdoers, there were likely more who were unable to show Field’s evil ways.

Did the rest of the prosecutorial junta decry his wrongs?  Did those who are the embodiment of lawfulness and righteousness denounce Ben Field’s evil ways?

Field has insisted that while he made mistakes as a prosecutor, he never deliberately violated ethical rules. He also has had his defenders, which helped avoid an even stiffer punishment from the State Bar. He presented 36 character witnesses in his case, including former District Attorney George Kennedy and outgoing District Attorney Dolores Carr, who vouched for Field’s integrity but conceded he failed to meet the office’s overall ethical standards.

It can be awfully difficult to explain to ordinary citizens why their malum prohibitum transgressions, victimless and often so vague and unclear that they are left wondering how they ended up in the dock, results in these very same witnesses arguing to a judge how they must be incarcerated for the safety of society.  Yet, when Ben Field violates the law, they appear on his behalf to speak of his integrity.  Field is a good man.  You are not a prosecutor.  You are not such a good man.  Field should not suffer harsh punishment.  You should.

Sending a message is both a legitimate concern of the courts and the sentencing process.  The perpetrators of wrong must know that they will be held to account for their deeds, and that the consequences are severe enough to make them behave properly.  The courts sent a message by suspending Ben Field for four years.  This is huge, because it’s a message that’s almost never heard.  It’s not enough, since prosecutors, like drug dealers, don’t believe they will ever be caught, and this is shown by what a big deal it is that Ben Field was sanctioned.  But it happened, and he was punished.  A message, however insignificant, was sent.

The District Attorneys who testified on behalf of Ben Field sent a message too.  Their message was more significant, that they only care about wrongs that happen outside their office.  The message to prosecutors is that they can violate the law and still enjoy the support of their office, their boss.  Even when everyone agrees that the prosecutor was bad, it’s not the same as it is for others.  Great message.

Update:  And more from the San Jose Mercury News, which did a series called Tainted Trials, Stolen Justice. (H/T Kathleen Casey)