As with law, new tech brings its unintended consequences. And we find ourselves back to law again.  From Dan Solove at Concurring Opinions, this Wall Street Journal story deals with cellphone GPS technology.  It’s promoted as boon to parents who want to know what their sneaky teenagers are doing behind their back, but not all uses are so benign.

One morning last summer, Glenn Helwig threw his then-wife to the floor of their bedroom in Corpus Christi, Texas, she alleged in police reports. She packed her 1995 Hyundai and drove to a friend’s home, she recalled recently. She didn’t expect him to find her.

The day after she arrived, she says, her husband “all of a sudden showed up.” According to police reports, he barged in and knocked her to the floor, then took off with her car.

The police say in a report that Mr. Helwig found his wife using a service offered by his cellular carrier, which enabled him to follow her movements through the global-positioning-system chip contained in her cellphone.

It seems like such a good idea otherwise, as does so much of our burgeoning technology.  Think of all the wonderful things we can do.  Don’t think of all the bad things it can do as well.

The allegations are a stark reminder of a largely hidden cost from the proliferation of sophisticated tracking technology in everyday life—a loss of privacy.

Global-positioning systems, called GPS, and other technologies used by phone companies have unexpectedly made it easier for abusers to track their victims. A U.S. Justice Department report last year estimated that more than 25,000 adults in the U.S. are victims of GPS stalking annually, including by cellphone.

Those of us who don’t think like a stalker have no particular reason to consider the abuse of GPS tracking.  And that’s likely true of pretty much any developing technology, where we only see the shiny new benefits without considering the imposition, often in terms of privacy, of unwanted burdens. 

While the targets of stalking learn that they are being tracked by a text notification, they have no ability to disable the feature other than to turn off their phone.  Obviously, this means they can’t make or receive calls as well.  But there is someone who can cause the phones to be disabled.  Can you guess who?

Cellphone companies will deactivate a tracking function if law-enforcement officials inform them it is being used for stalking.

The installation of GPS tracking chips in cellphones wasn’t some bright marketing idea by a cellphone manufacturer.  It’s a federal requirement.

The Federal Communications Commission required U.S. cellular providers to make at least 95% of the phones in their networks traceable by satellite or other technologies by the end of 2005. The agency’s intention was to make it easier for people in emergencies to get help. GPS chips send signals to satellites that enable police and rescue workers to locate a person.

Was the FCC really all that concerned with finding you in an avalanche or a building collapse, rather zebra-like scenarios?  Perhaps, but the fact that cellular companies are more than happy to work hand in hand with  law enforcement to disable GPS location suggests that they may just as happy to enable it should law enforcement ask nicely.

That this happens probably strikes no one as a surprise, but the fact remains that we seldom consider the extent to which we’ve happily surrendered our privacy, any semblance of privacy, to private businesses and, at the unspoken largesse of those businesses, to the government.  Don’t even ask how easy it is for the government to get its hands on the content of your smartphones.

Technology may have given us a window to the world, but it’s also given the government a window to us.  Don’t forget about that when the next shiny must-have toy comes along.  After all, if you can stare at your iPad, what makes you think you’re iPad can’t stare back at you?

This isn’t just Schadenfreude. Parents of kids who manage to make it to adulthood without doing something wrong (and getting caught) have this tendency to be a bit self-righteous about it.  They look down their noses and sneer at the parents of bad kids, the budding criminal ilk.   They think to themselves, there’s a parent who failed to do his job.  There’s a parent who raised a future guest of the local hoosegow.  Hah!

Meet our newest bad parent, Rudy Guiliani.

Cops said Caroline Giuliani, 20, a student at Harvard University, was arrested after security cameras caugh her stuffing makeup into her jacket pocket at a Sephora store at E. 86th Street and Lexinton Avenue shortly before 2 p.m.

Today cosmetics.  Tomorrow, banks.  That’s right, it’s a gateway.  Or more precisely, a broken window.

While it wouldn’t be a surprise to learn that a drama student (talk about a waste of a Harvard education) caused a little drama, it comes as a shock when she’s the offspring of the most unforgiving man in New York.  But then, Rudy wasn’t always the uber-crime fighter that he fashioned himself to be.  Who can ever forget his foray into drugs?

Caught slumming uptown with his co-conspirator, Alphonse “Tacky Dresser” D’Amato, Rudy’s sordid past has come back to haunt him through his daughter.  Who would be surprised to learn that Caroline wanted to follow in Rudy’s footsteps?

And to think, she almost got away with it.

During the wait for cops to arrive, store officials established the suspect’s identity, and apparently had a change of heart and declined to press charges. But by then it was too late, and the daughter of the man who built a reputation for being tough on crime was carted out in handcuffs.

“It was captured on camera,” a law enforcement source said. “At some point the store indicated they knew who she was and that they were not going to press charges. The DA will decide whether to decline prosecution or not.”

What store manager in his right mind would want to anger the Family?  Bernie Kerik will be out soon enough and knocking on his door to have a word with him.  How would you feel if you opened your door and found yourself eyeball to eyeball with Bernie “The Fixer-Upper” Kerik?

Personally, I feel sorry for Rudy.  It’s hard to be a parent, with pressures abounding to steer a young lady away from the path of righteousness and down the road to perdition.  Drugs.  Sex.  Make-up.  It’s not easy to teach them to keep their eyes straight ahead and ignore temptation.

Especially when your father is named Rudy. 

Stiff upper lip, Rudy.  I’m with you.  And chances are she won’t do too much time in the slammer.  And even if she does, it’s not like you don’t have so decent contacts in there to smooth her way, if you catch my drift.

H/T Turkewitz, who’s the only guy I know who reads the New York Post (or admits to it).

Chief Judge Vaughn Walker’s decision in  Perry v. Schwarzenegger, holding that California’s Prop 8, outlawing same-sex marriage is unconstitutional under both the Equal Protection and Due Process clauses, will be discussed and analyzed to death today, as well it should be.  One of the most thorough discussions can be found at Poliglot, which clearly has a stake in the outcome.

Whether this decision is viewed as utterly obvious or the death knoll of proper society, and I fall into the former camp, there are others far more knowledgeable about constitutional law to offer critical perspective.  My interest is limited to one line in Judge Walker’s opinion.

That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the  outcome of no elections.” West Virginia State Board of Education v Barnette, 319 US 624, 638 (1943).

In a nation guided by platitudes, love of democracy often clouds our appreciation of constitutional limits.  There are some minimum bars to the will of the majority.  This is intended to prevent the Tyranny of the Majority.  The idea is counter-intuitive to many, for if the majority of Americans (or Californians in this case) decide that they want something, then that something is what they should get.  That’s democracy.  That’s America.  That’s the will of the People!

Not always.  The Constitution provides a floor below which no one who calls themselves an American can go.  It’s far from being an overarching set of regulations that prescribe our daily lives, yet states a bunch of overarching rights that can’t be violated if one wishes to be an American.  The rights to Equal Protection and Due Process are amongst them. So are the right to remain silent and be secure in your papers and effects.  Some are protected with greater zeal than others.

What the majority of people cannot do is decide to take away those rights for the minority.  Consider the days when WASPs were the majority, held all the important offices and lived in the nice houses.  What if they saw the writing on the wall and decided to pass a law that prohibited people of Italian, German and Irish descent from sending their children to school.  What better way to keep the newbies down than to deny them an education?  This would maintain a ready pool of uneducated workers for the crappy jobs, thus manning the factories to produce revenues for the WASP owners, plus keep the schools where WASP children went free of unsavory characters with odd accents.  It’s a great deal for the majority.

They might have done that, you know.  But they couldn’t, because the soul of our government, the Constitution, does not tolerate the majority becoming the tyrant to the minority. 

There will be plenty of otherwise nice folks who will rail about the evils of homosexuality.  They will say that it’s not about hating gay men or lesbians (and why is there a separate word, lesbian, if gay covers it?), but about preserving the natural order of things so that society doesn’t explode and get nasty gay goo all over us.  They will believe it with all their heart, and express it with oozing sincerity and droopy eyelids, imploring others to “get it” before it’s too late.

Whether it’s the will of the majority of California voters, whether they are absolutely right that homosexuality is the most venal thing to ever strike at the heart of the sacred institution of marriage, doesn’t matter.  No matter how strongly, how sincerely you believe that this is the most horrible thing to ever happen to fine, God-fearing men and women, who to shoot out kiddies to repopulate the church pews, it doesn’t matter.  The majority cannot proscribe the rights of the minority, whether it’s a minority of 49.9% or .0009%.  The majority cannot be tyrants.

And if you don’t stand up for this premise on behalf of gays and lesbians, you can bet there will be no one to stand up on behalf of those accused of crimes, perhaps the only group to be hated more than homosexuals, though that proposition may be a matter of some dispute.

In college, I wrote a paper about how the unionization model must eventually fail by collapsing under its own weight.  My professor hated it, and if I recall correctly, gave me a “D”.  This may have begun my downward spiral that resulted in my becoming a lawyer.  Nonetheless, I’m giving it another try. 

My hypothesis is that outsourcing legal work to India will provide a primary benefit to the prosecution, particularly the various United States Attorneys offices around the nation.  Check out the New York Times.

“I think the toothpaste is out of the tube,” said Mark Ford, director of the firm’s Knowledge Center, an office south of New Delhi with 30 Indian law school graduates who serve Clifford Chance’s global offices. Mr. Ford lived in India for six months to set up the center, and now manages it from London.

“We as an industry have shown that a lot of basic legal support work can successfully be done offshore very cost-effectively with no quality problems,” Mr. Ford said. “Why on earth would clients accept things going back?”

By reducing costs for legal services to a tenth of their current charge, the savings is staggering.  But so are the implications.

“We will continue to go to big firms for the lawyers they have who are experts in subject matter, world-class thought leaders and the best litigators and regulatory lawyers around the world — and we will pay a lot of money for those lawyers,” said Janine Dascenzo, associate general counsel at General Electric.

What G.E. does not need, though, is the “army of associates around them,” Ms. Dascenzo said. “You don’t need a $500-an-hour associate to do things like document review and basic due diligence,” she said.

Let’s relish in the leap of faith that partners at Biglaw are experts and “world-class thought leaders” for the moment, and consider instead what becomes of the $500-an-hour associates.  Without the support of Biglaw clients willing to pay to school some teletubby on lawyering, they disappear.  The partners aren’t digging into their own pockets to pay to see their smiling faces and flip-flopped toes show up every morning.  If clients won’t foot the bill, they’re out of there. 

Sure, a few will be left behind to fetch coffee and do emergency cite-checking (which is how Biglaw guys develop their lauded expertise and world-class thought leadership), but not enough to refill the ranks.  Once their bread-and-butter work is farmed out to Bangalore, the cubicles will be left farrow to return to their natural state.

This means that the Biglaw model will die as the non-existent associates are never developed to become rainmakers and thought leaders, and partner welfare will cease as the youngers no longer generate the revenue to compensate the elders.  The senior partners are determined not to let that happen.  At least not as long as they’re still getting their split of the profits.

With the end of the farm team system in Biglaw, yet the continuing need for youthful fodder to generate billable hours that corporate clients will happily pay, Biglaw has only one place remaining in which to find its new blood.  We know it’s an acceptable alternative, as they’ve already been milking it for years under the guise that foolish clients don’t realize that official titles and highly limited experience don’t translate easily into world-class thought leaders.

Where will these new future Biglaw partners of America come from?  You guess it.  The United States Attorneys offices.

This means that all those cut-throat law review editors, library book swipers, artful plagiarists, will vie for the jobs.  The competition will be relentless, as associate positions at Biglaw go the way of the dinosaur and their futures turn to black.  Once in the office, they will transfer their dreams of future Ferraris to centuries in prison, awaiting the day they can tell their Biglaw interviewer how many miscreants they put away for life as proof of their worth.  They will lay waste to defendants in the hope of eventual Biglaw hegemony.

Come on now, you don’t think these law school tigers are going to hang out a shingle and play defense lawyer, do you?  And you don’t think that Biglaw partners will be cherry-picked from the ranks of real estate closers or will drafters, do you?  The riff-raff of the law will never do.  Just as they gussy up former AUSAs now to be “top-notch litigators” in order to get their corporate clients to pay the hourly tariff, the United States Attorney’s office will become the only proving ground left for the development of the future earners of Biglaw after all the low-rent work has been shunted off to India.

And what’s in it for criminal defense lawyers?  There is one bit of fun remaining, as we redouble our efforts to make these smarty-pants prosecutors eat our dust when we show them that while they were writing student notes or blue-booking lawprof flights of fantasy, inchoate criminal defense lawyers had their noses to the grindstone and were learning how to kick butt on cross-examination.

And still, we’ll never get a job at Biglaw.  And that’s just fine.

Despite arguments about whether a taser deserves its place in the pantheon of less-than-lethal weapons, a Pensacola cop proves that any weapon in the hands of a blithering idiot can be lethal.  Warning: If you’re allergic to abject stupidity, read no further.

From Liveleak, Via Turley, Officer Jerald Ard saw teenager Victor Steen riding his bike at a vacant construction site.  He ordered Steen to stop, but the kid rode away.  Ard, in his cruiser, wasn’t going to let some kid on a bike get away.  But what went through Ard’s mind as he came up with his most ingenius plan to nail the teen is just beyond stupid.

Like John Wayne behind the wheel.  There’s another video at liveleak which shows Ard running over, and killing, Steen.  But the Fox news video neglects a post-killing detail of some significance.  After Ard runs Steen down, he gets something from his cruiser and goes under his car to Steen’s lifeless body where he remains for 40 second.  Paramedics then find a 9mm pistol in Steen’s pocket.

Needless to say, the court found that Ard had committed no crime.  Victor Steen is still dead.  On the bright side, the PPD determined that Ard violated police policy.

After reviewing the video evidence in this incident, I believe that the pursuit did expose the subject to unreasonable risk of harm or injury. At times in the pursuit, Officer Ard drove his cruiser so close to the suspect’s bike that it would have been difficult if not impossible for him to stop if the suspect fell from the bike. I also found it disturbing that Officer Ard attempted to tase the suspect on a bike as he rode next to him. If this action would have been successful, it is very possible that the suspect would have sustained serious injuries from the fall.

It appears that nobody told the reviewing officer that Ard ran over Steen, and the potential for harm wasn’t exactly speculative. 

Putting aside the allegation that ard planted a gun so that there would be a way to smear Steen in the process of excusing his having tased a kid on a bike for not stopping upon command and then running him over, it’s incomprehensible to me that anyone, officer or otherwise, could have been so mind-bogglingly stupid as to to this. 

Was Ard so filled with rage at the prospect of Steen getting away that he was prepared to do anything it took to bring him down? Did Ard care so little for the life of another that he gave no thought to the potential harm of his actions? 

It’s already been clearly established that the taser has become the go-to weapon for any situation short of a threat to a cop’s well-being.  From annoying to irksome, the taser will quickly bring a situation to an end.  So what if a few eggs get broken while making a taser omelet.  It’s hard being a cop, you know, and it’s harder still being a patient cop, or, God forbid, having to exert physical energy running after a suspect rather than pulling the trigger of the taser.  Have you even considered the repetitive stress implications to the police officer’s trigger finger? 

But this one is just too stupid for words. 

Victor Steen’s family is suing for his death.

Attorneys Bill Cash and Aaron Watson of the Levin Papantonio law firm plan to file the suit. They filed a notice with the city in January that they planned to do so, and must wait six months.

“This ain’t the old wild West,” Cash said. “This is Pensacola in 2010.”

While the family will seek $10 million, Florida law caps the amount that governmental bodies must pay at $200,000. If a jury award exceeds that amount, the case is taken before the state Legislature, which can decide whether to override the cap and pay the full amount.

Welcome to Pensaola in 2010. 

In the constant and age-old struggle to end crime, or at least alleviate it to the extent possible, we’ve often turned to social scientists, criminologists and others, to tell us what works.  They, in turn, conduct experiments and reach conclusions.  We, in turn, adopt their conclusions and base approaches and policies on their experiments.  And crime continues unabated.

An article at City Journal rips social “science” to shreds, and in the process, teaches a lesson that many need desperately to learn.

To understand the role of experiments in this context, we should go back to the beginning of scientific experimentation. In one of the most famous (though probably apocryphal) stories in the history of science, Galileo dropped unequally weighted balls from the Leaning Tower of Pisa and observed that they reached the ground at the same time. About 2,000 years earlier, Aristotle had argued that heavier objects should fall more rapidly than lighter objects. Aristotle is universally recognized as one of the greatest geniuses in recorded history, and he backed up his argument with seemingly airtight reasoning. Almost all of us intuitively feel, moreover, that a 1,000-pound ball of plutonium should fall faster than a one-ounce marble.

Yet Aristotle, certainly more brilliant than you or me, was wrong.  The critical point is that we can argue, with what we believe to be unassailable logic, all day long, but that doesn’t make it so.  Yet this anecdote relates to science, an experiment that can be replicated over and over.  Social science, on the other hand, isn’t worth spit.

Crime, like any human social behavior, has complex causes and is therefore difficult to predict reliably. Though criminologists have repeatedly used the nonexperimental statistical method called regression analysis to try to understand the causes of crime, regression doesn’t even demonstrate good correlation with historical data, never mind predict future outcomes reliably. A detailed review of every regression model published between 1968 and 2005 in Criminology, a leading peer-reviewed journal, demonstrated that these models consistently failed to explain 80 to 90 percent of the variation in crime. Even worse, regression models built in the last few years are no better than models built 30 years ago.

So since the early 1980s, criminologists increasingly turned to randomized experiments. One of the most widely publicized of these tried to determine the best way for police officers to handle domestic violence. In 1981 and 1982, Lawrence Sherman, a respected criminology professor at the University of Cambridge, randomly assigned one of three responses to Minneapolis cops responding to misdemeanor domestic-violence incidents: they were required to arrest the assailant, to provide advice to both parties, or to send the assailant away for eight hours. The experiment showed a statistically significant lower rate of repeat calls for domestic violence for the mandatory-arrest group. The media and many politicians seized upon what seemed like a triumph for scientific knowledge, and mandatory arrest for domestic violence rapidly became a widespread practice in many large jurisdictions in the United States.

But sophisticated experimentalists understood that because of the issue’s high causal density, there would be hidden conditionals to the simple rule that “mandatory-arrest policies will reduce domestic violence.” The only way to unearth these conditionals was to conduct replications of the original experiment under a variety of conditions. Indeed, Sherman’s own analysis of the Minnesota study called for such replications. So researchers replicated the RFT six times in cities across the country. In three of those studies, the test groups exposed to the mandatory-arrest policy again experienced a lower rate of rearrest than the control groups did. But in the other three, the test groups had a higher rearrest rate.

Why? In 1992, Sherman surveyed the replications and concluded that in stable communities with high rates of employment, arrest shamed the perpetrators, who then became less likely to reoffend; in less stable communities with low rates of employment, arrest tended to anger the perpetrators, who would therefore be likely to become more violent. The problem with this kind of conclusion, though, is that because it is not itself the outcome of an experiment, it is subject to the same uncertainty that Aristotle’s observations were.

The article goes on to state, and demonstrate, the inability of social scientists to craft programs that success and results that can be replicated.  Jim Manzi, the author, concludes, among other things, that there’s just no magic, no matter how high-sounding or logical the solutions appear.  The human condition is too varied, complex and unpredictable to be transformed so easily.

This is really a very important piece to consider on many levels, particular for those of us who promote ideas that we would believe to improve criminal justice and its outcomes for people.  Ideas that make so much sense to us, or which social scientists tell us will solve the problems that vex us, receive our strong, and often blind, support.  We support them at the expense of other concerns and priorities in the belief that they will cure a disease, making it worth the commitment, only to be disappointed when it becomes apparent long afterward, and having suffered for the choice, that it turns out not to be the magic bullet solution we thought/hoped it was.

It would be easy to lift thousands of words from the article to make Manzi’s point, but better that you read it yourself and give it some thought.

H/T Keith Lee at An Associate’s Mind

Do you fear me? 

H/T Popehat, A Public Defender, Defending People, Gamso, Likelihood of Confusion and the FBI. without whom this wouldn’t be necessary. 

Plagiarism is so yesterday, according to this story in the New York Times.

And at the University of Maryland, a student reprimanded for copying from Wikipedia in a paper on the Great Depression said he thought its entries — unsigned and collectively written — did not need to be credited since they counted, essentially, as common knowledge.

Professors used to deal with plagiarism by admonishing students to give credit to others and to follow the style guide for citations, and pretty much left it at that.

But these cases — typical ones, according to writing tutors and officials responsible for discipline at the three schools who described the plagiarism — suggest that many students simply do not grasp that using words they did not write is a serious misdeed.

This is the mundane side of the copyright debate, that all written work should be freely available to all to foster creativity.  How stealing content from someone, or even just somewhere, else fosters creativity eludes me.  But then, I’m a dinosaur and don’t understand the new wave.

The notion that there might be a new model young person, who freely borrows from the vortex of information to mash up a new creative work, fueled a brief brouhaha earlier this year with Helene Hegemann, a German teenager whose best-selling novel about Berlin club life turned out to include passages lifted from others.

Instead of offering an abject apology, Ms. Hegemann insisted, “There’s no such thing as originality anyway, just authenticity.” A few critics rose to her defense, and the book remained a finalist for a fiction prize (but did not win).

There was once a time when taking more than a few words from someone else’s pen (that’s a thing that people used to write with, putting ink to paper), was considered a grievous intellectual offense.  It wasn’t that anyone owned ideas, but the expression of those ideas belonged to whoever came up with it.  When an author or scholar used the words of another without attribution, they would be shunned in disgrace.  Now, they enter contests.

That theory does not wash with Sarah Wilensky, a senior at Indiana University, who said that relaxing plagiarism standards “does not foster creativity, it fosters laziness.”

“You’re not coming up with new ideas if you’re grabbing and mixing and matching,” said Ms. Wilensky, who took aim at Ms. Hegemann in a column in her student newspaper headlined “Generation Plagiarism.”

Uh oh.  Wilensky said something mean about the Slackoisie.  She’s in big trouble now.  Or perhaps she’s recognizing what so many others deny, that the internet distinguishes the Millennials in ways that can’t be ignored.  Their relationships are virtual, the opinions of barely pubescent children can be published worldwide on par with Nobel Laureates, and their education is informed by instantaneous access to the words crafted by a billion minds, ranging from the brilliant to the banal.  No, this is not your father’s internet.

Certainly it’s lazy to just lift some language from some amorphous website to fluff and puff one’s own work.  I mean, it’s all there, laid out for us, just ripe for the picking.  If it’s not under lock and key, it’s free for the taking.  And why not, as Ms. Hegemann asserts.  It’s not like there’s anything original.  Us old guys used up all the original ideas and words, right?

But there’s another possibility as well.  Writing is hard work.  Writing well is even harder.  I hear from people all the time telling me that I must spend all day writing my blawg posts, because that’s what it would take them.  As if their inadequacy somehow controls my effort.   Don’t blame me that you can’t write well or quickly.  I’m only responsible for me, not you.

Writing is hard.  Thinking is harder still.  Even typing out the words requires practice and effort.  Cutting and pasting, not so much.  In one of my favorite quotes, Sir Joshua Reynolds wrote, “There is no expedient to which a man will not resort to avoid the real labor of thinking.”  To put together words to express an idea is really the manifestation of thought.

While there are some people who show great capacity for writing, it’s worthless in the absence of meaningful ideas.  Consider this website if you doubt me, where strings of meaningless words are crafted to substitute for anything remotely resembling cognizable ideas.

For some, this is considered the height of creativity.  Unless this is outed as sheer and utter nonsense, we may be looking at the death of thought during our children’s lifetime.  Ms. Wilensky calls this “laziness.”  Even this description may be too kind.  The belief that its acceptable to take the words, and hence the thoughts, of others as their own isn’t merely a shortcut to new-fangled originality, but the surest route to intellectual atrophy.

Over at A Public Defender, Gideon takes on legal fictions and asks the question, why are they always created to favor the prosecution?

Juries routinely get instructed on “consciousness of guilt”. They are told to *wink wink* draw whatever inferences they may from the defendant’s post-offense or post-arrest conduct. But what if the tables are turned? What if there is some post-offense or post-arrest conduct that shows a defendant is not acting like a guilty person (whatever that may mean)? Of course not. Don’t be silly, this is the justice system we’re talking about. There is no such thing as “consciousness of innocence”, because innocent people don’t get arrested.

So if a defendant wants the jury to draw a favorable inference from the fact that he offered to take a polygraph, but the police refused to administer it, he’s out of luck. Or if the defendants wants to tell the jury to consider the fact that he voluntarily turned himself in (which, per the English language, is the opposite of fleeing), he can’t. If he wants the jury to draw whatever inferences they may from the fact that he asked to be submitted to a breathalyzer, he can’t, because dammit these are the rules we made and that’s that.

This is another smack in the face of the presumption of innocence.  It presumes actions and reactions that can be somehow characterized in a way that supports the prosecution as consciousness of guilt, while simultaneously assuming that any conduct which would support a showing of innocence to be a product of some crafty defendant putting on a show to manufacture a defense.  Guilty if you do, guilty if you don’t.  Guilty.

On either side of the equation, the use of inference from conduct to prove what’s going on inside somebody’s head is a convenience for the court.  As the court instructs the jury, no one can really know another person’s intentions, so we infer intent from conduct.  A person is presumed to intend to do the conduct in which he engages. 

Fair enough, as far as it goes.  But no farther.  Point a gun at someone and pull the trigger, and it’s fair to say that you intended to shoot them.  But it doesn’t tell you why.  Still, it’s not all that hard to piece together enough background to determine whether the purpose is to defend oneself from a vicious attack by the shootee, or to take the victim’s wallet.

When we get to issues like consciousness of guilt, however, the ground is far softer and shakier.  Soft ground allows a prosecutor to mold an explanation for conduct that creates a smell of guilt.  Mind you, the conduct may be otherwise equivocal, and subject to any number of plausible explanations, but the government is allowed to argue to a jury that it can forget about all that nasty proof stuff and use the artfully crafted argument as if a defendant actually intended what the prosecutor claims.  The court then makes it sound very official by calling it an “inference” rather than the unfounded speculation it really is.

This is nothing more than a call for jurors to project their own assumptions, under the guiding hand of the prosecution, onto the actions of a defendant.  It’s really quite a bizarre trick, in that a defendant is placed in the most unfamiliar and stressful terrain of his life, where his brain races a million miles an hour and tries to figure out what to do, how to react, while the jury is allowed the opportunity to leisurely review the defendant’s choices and called upon to decide whether that’s the way they would react, given all the time in the world to come up with the best possible choice.  Yet courts allow it.  No, they encourage it.

As Gideon points out, with details, if a defendant reacts appropriately and does what a thoughtful person would do, the defense is prohibited from arguing to the jury that this demonstrates innocent.  Act like an innocent person, as least from the deliberate perspective, and the jury must never know.  Act like a guilty person and it’s all over the courtroom. 

Normal people project motivations on others all the time.  And each of us is absolutely certain we’re normal, meaning that anyone who doesn’t do what we think they should are abnormal.  Defendants often respond to the insanity and unfamiliarity of a police confrontation in strange ways.  Afterward, when you ask why someone did what he did, you get a shrug.  They realize later that they could have handled it better, whether it’s keeping their mouth shut or not struggling as they were being cuffed.  For whatever reason, be it fight or flight, or maybe an assertion of misplaced dignity, their conduct will come back to bite them in the butt.  It does not mean, however, that it’s evidence of guilt, conscious or otherwise. 

It’s evidence that most people don’t know what to do when confronted by police.  Nervousness is one of the most prevalent assertions by police in describing a defendant’s reaction to what they characterize as a simple question.  Do you know anyone who isn’t nervous when confronted by police? Whether criminal defense lawyer, judge or street punk, of course we’re nervous when some guy with a gun and undetermined intelligence commands us to do something.  Only a fool is comfortable.

The prosecutorial reaction to such complaints is that the defendant is always free to take the stand and explain himself, clear up the mystery of his seemingly guilty conduct.  This is a straw man argument, as there are a thousand considerations that go into putting a defendant on the stand having nothing to do with explaining away the facile inferences.  Prosecutors know this, and argue it largely to goad the defense so that they can bring in the defendant’s prior criminal conduct, unpleasant disposition or confused demeanor on the witness stand.  Unlike police, defendant’s don’t take classes in how to testify convincingly at the defendants academy.

That the employment of legal fictions like consciousness of guilt are available to make certain that the playing field is never level is hardly surprising.  It can awfully hard for the government to convict people when something as vague and unprovable as intent is a requisite element of a crime.  But if the courts are going to allow the government to just manufacture a story to prove their case, it reduces the burden of proof to match of who can come up with the best fairy tale.  If that’s all it is, then the chances of a defendant prevailing are awfully Grimm.

Or more precisely, Lord Conrad Black learned.  After all, there was no reason why he should have known, or cared, until it happened to him.  Now that he’s out on bond, $2,000,000, following the Supreme Court’s redefinition of honest services fraud in Skilling to bribery and kickbacks. Black was back.  Now he need only address the “obstruction of justice” of his non-crime.

There’s nothing like sitting in prison for a couple of years to give a Lord time to think.  His days as a media mogul might have given him reason to think about news and issues, but he was too busy buying and selling companies and figuring out how to get millions in tax-free bonuses.  Can you blame him?  Wouldn’t you like to make millions in tax-free bonuses?  Who wouldn’t?  After all, what’s the point of being fabulously wealthy if you can’t be, well, fabulously wealthy?

To his credit, Lord Conrad Black could have spent the 28 months in prison thinking only about himself, the injustice done him by the American legal system and the lack of decent prison Osetra on toast points.  He’s now written about his experience in prison (what else is a former media mogul to do but write?), and it appears his interests, and lessons are broad.  Our Lord learned that everyone doesn’t get to eat caviar and struggle with how to keep their bonuses tax-free. 

From Canada’s National Post, Lord Conrad Black tells of his prison education:

The Mafiosi, the Colombian drug dealers, (including a senator with whom I had a special greeting as a fellow member of a parliamentary upper house), the American drug dealers, high and low, black, white, and Hispanic; the alleged swindlers, hackers, pornographers, credit card fraudsters, bank robbers, and even an accomplished airplane thief; the rehabilitated and unregenerate, the innocent and the guilty, and in almost all cases the grossly over-sentenced, streamed in steadily for hours, to make their farewells.

It had been an interesting experience, from which I developed a much greater practical knowledge than I had ever had before of those who had drawn a short straw from the system; of the realities of street level American race relations; of the pathology of incorrigible criminals; and of the wasted opportunities for the reintegration of many of these people into society. I saw at close range the failure of the U.S. War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42% of Americans have used marijuana and it is the greatest cash crop in California.) A trillion dollars have been spent, a million easily replaceable small fry are in prison, and the targeted substances are more available and of better quality than ever, while producing countries such as Colombia and Mexico are in a state of civil war.

I had seen at close range the injustice of sentences one hundred times more severe for crack cocaine than for powder cocaine, a straight act of discrimination against African-Americans, that even the first black president and attorney general have only ameliorated with tepid support for a measure, still being debated, to reduce the disparity of sentence from 100 to one to 18 to one.

There’s nothing like being a guest of the government to learn a little something about how life works for your cellmates.  But bear in mind, this is the fellow who owned the Chicago Sun-Times and the Daily Telegraph.  And yet it came as an epiphany that the justice system doesn’t work well?  Imagine the use to which his media empire could have been put if only he knew, or cared, about any of this when he was still a mogul. Did he every read the papers he owned?

There’s another part of his prison education that strikes a darker note:

And I had heard the vehement allegations of many fellow residents of the fraudulence of the public defender system, where court-appointed lawyers, it is universally and plausibly alleged, are more often than not stooges of the prosecutors. They are paid for the number of clients they represent rather than for their level of success, and they do usually plead their clients to prison. They provide a thin veneer for the fable of the poor citizen’s day in court to receive impartial justice through due process.

This lesson is easy to understand and hard to swallow.  That federal defenders and CJA lawyers are perceived as “stooges of the prosecutors” is both brutal and wrong.  What they are is underfunded and overworked.  And yes, some are hiding behind appointments as welfare for lawyers who either aren’t good enough, or don’t care enough, to fight for their clients.  The perception is grounded primarily in the push for pleas.  There are certainly plenty of lawyers who believe that no one wins, so guilty pleas are the only way to go.  Does it make them feel good to know that this is what their former clients think of their advice?

Conrad Black wasn’t permitted to return to his native Canada, so he’s been forced to return to his Palm Beach Manse to suffer his fate with a fully stocked wine cellar.  He’s learned quite a bit about the life others lead since his arrest, when he was “once a paid-up member of the hang ’em and flog ’em brigade,”

I wonder what the Lord will remember about injustice after a few months back in the lap of luxury.