The two most likely offenses to drive Avvo readers to call or write me are drunk driving and shoplifting.  As neither is the sort of case that has ever interested me, my familiarity with the frequency and  mindset of those charged is limited.  Since I now hear about them all the time, it seems to me as if it’s an epidemic.

And it may well be, given this article in the New York Times describing how shopkeepers are changing the way they deal with shoplifting.

First, suspected shoplifters caught by the store’s security guards or staff members have their identification seized. Then, they are photographed holding up the items they are accused of trying to steal. Finally, workers at the store threaten to display the photographs to embarrass them, and to call the police — unless the accused thieves hand over money.

“We usually fine them $400,” said Tem Shieh, 60, the manager, who keeps track of customers on 30 video monitors in the store’s surveillance system. “If they don’t have the money, then we usually hold their identification and give them a chance to go get it.”

This “method” of dealing with shoplifter is another Chinese import, from the land that brought us Maoist re-education camps.  There is absolutely no aspect of this that isn’t outrageous, from the store’s untrained “security guards,” fresh off duty at Dairy Queen, deciding that they’ve nabbed the perp, to what amounts to a private kidnapping, defamation, wholessale absence of due process, and ultimately reached extortion.  They fine them?  Who is a store to fine anyone?

New York State law allows “shopkeepers’ privileges” that fall somewhere between the prerogatives of the police and a citizen’s arrest. The law also details “civil recovery statutes,” by which retailers may use the threat of a civil lawsuit to recover substantial settlements for even minor thievery. But threatening to report that someone has committed a crime can be considered a form of extortion.

You bet.  How many stories can I take about a mother with a couple of kids running around the Gap being nailed as they pass near the door by a 22 year-old, who yells so everyone in the store can hear that she’s a thief?  Taken into a “back room” and told that they must sign a confession or they won’t be allowed to leave, while their kids are alone in the store. And that’s without the Chinese enhancements.

But this new twist, public humiliation plus risk of prosecution versus paying off the extortion money, is mind-boggling.  Naturally, that means that the police and district attorney know all about it, but are doing nothing.

Neither the Police Department nor the Queens district attorney’s office said any complaints about the practice had been received. But its critics argue that the accused shoplifters are deprived of basic civil rights and the usual assurances in public legal proceedings, like the right to a lawyer and freedom from coercion, and are not being held by adequately trained security officials with proper oversight.

After all, if no one comes in to proclaim they’re an accused shoplifter who’s been the victim of shopkeeper extortion, then everybody must be happy with the system.  For the moment, this scheme is predominantly used within the Chinese community, which carries its own issues.

Many accused shoplifters plead poverty. But they usually manage to come up with money to pay their way out of being publicly shamed and arrested, Mr. Shieh said, often after calling upon friends and relatives for the cash.

Fears of being deported often color their panicked responses.

These are easy targets, disinclined to fight or complain.  Perfect pickings for an extortion scheme.  But as word spreads, and certainly this article will help it to do so, shopkeepers and store managers everywhere will learn of this extortion twist, package it up with their already deeply disturbing, coercive, manipulative scheme.  The ramifications are staggering.

The obvious plus side is that it’s a way for someone who shoplifts to avoid prosecution, avoid entanglement with the criminal justice system and the potential for a criminal record.  It’s self-help, rough justice if you will, and to some minds, a quicker, more fitting resolution to petty crime.  Yet there’s neither balance nor limit, oversight nor safeguard from abuse.  This would institutionalize the private kidnapping and extortion of people at will, whether they are really shop-lifters or not.

For the moment, the going rate is $400 to pay off the kidnappers.  What happens if it grows to $1,000?  $10,000?  What happens if the seized shopper isn’t inclined to go peaceably with the program, and they get a good tuning up by the “security guards?”  What happens to the children, left on their own while Mommy is being coerced into confessing to a crime?

But as long as no one complains, there’s certainly no reason for the police or district attorney to care whether shopkeepers are kidnapping people and extorting money from them.

What?  Sorry, could you say that again?  Sorry, I still didn’t get that.

The realization that the beloved cellphone, whether crackberry, iPhone or the ancient relic strapped to the geeky belt holster, the plain vanilla phone that doesn’t do anything except make and receive calls, could leave a client believing I was on the way when in fact I had no clue what they were calling about became clear to me a long time ago.  The voice mail, with message obiterated by status, breaking up, left me clueless.  Just because you said the words doesn’t mean they could be heard.

When the phone call came in yesterday, the thing that made it different was that it was mano a mano.  I was there, on the phone, talking to a client I knew well.  He was in trouble, again.  He needed me, now.  And I had no idea what he was trying to tell me because the call kept breaking up.  He’s a great guy and a great client.  But no matter how great he is, I can’t help if I can’t hear him.

Let’s start from the beginning.  He speaks with an accent, which already requires a significant additional level of focus to make sure I know what he’s saying.  It’s a problem when we’re sitting in the same room, especially when he’s excited and speaks in rapid fire bursts.  He sometimes has difficulty with finding the right word, and I’m left to either question what he means or reinterpret what he’s saying so I get it right.   He’s not great with things like pronouns, and tends to use them rather than names, dates, the sort of details that are required to have a firm grasp of who did what to whom.

None of this is a problem, but just something to be aware of and get past to make sure I know what he’s talking about.  And then comes the cellphone.

As anyone who knows me is aware, I’m a Luddite when it comes to cellphones.  Leave a message on mine and it’s unlikely I will get it for a week.  I don’t turn my phone on unless I need to make a call, and I rarely need to make a call.  This isn’t to denigrate those people who live on their cellphones.  Plenty of my friends do.  It’s just not my thing.  Then again, I’m not all that big with landlines either.  Phones are for communication, not entertainment.  I say whatever it is I have to say, then get off the phone.

Like everyone else, I see the commercials on television for the latest cellphone gadgetry.  I know about 3G and 4G, though I didn’t know what it meant until my teenage son explained it to me.  I see the maps of cellphone coverage that blocks football games and the ones that fall into bowls of soup at diners, where calling someone in the middle of eating is apparently critical.  I get it.

Harsh reality, however, does heed television commercials.  Despite the glory of whatever number of “G”s are in fashion today, cellphones are still not perfect.  They break up, words get lost, there’s an echo, overtalking cuts off the other speaker.  They may be shiny and download a thousand songs in a millisecond (I wouldn’t know, but it could happen).  What they do not do is assure adequate communication in times of stress and crisis.

I feel foolish when I have to ask a caller three times what he’s saying, or tell him that I didn’t understand.  I’m frustrated. They’re frustrated.  Critical information can be lost or misunderstood.  In this business, every piece of information has the potential to be critical.  There’s nothing that I’m willing to lose in a conversation.   After three tries, people give up on trying to clear up the missing bits, the lack of comprehension.  They move on.  It could mean that a critical bit is lost.

Cellphones are perfectly adequate for calls that have no consequences.  If part of the conversation is lost, no big deal.  It can be picked up later, whether on a landline or in person.  There’s plenty of time to straighten it out if there’s a misunderstanding.  When it’s critical, however, the cellphone fails.

Sure, cellphones are ubiquitous and convenient.  We can call anytime, anywhere, anyone (except me, because my phone isn’t on).  But if you want to be certain, I mean truly certain, that the message has been communicated and received, clearly and completely, the cellphone will not do.

I finally learned from my client’s wife the details I needed to help.  It ended up being extremely urgent, but a relatively easy fix, and I took care of it with a few phone calls.  I used my landline to call someone else’s landline.  Our communication went as smooth as silk.  Problem solved.

Miami criminal defense lawyer Brian Tannebaum, fresh off his triumphant election as President of the Florida Association of Criminal Defense Lawyers, turns his attention to the L.A. Law Syndrome. 

The T.V. show L.A. Law showed us that law offices were nice places, in tall buildings, with nice furniture, and beautiful people. L.A. Law caused a whole generation to go to law school. The work was tedious for those sent to BigLaw, but the golden handcuffs were tight. Where else could a 25 year old make $100,000 the first year out of school? It wasn’t about the “profession,” or “representing clients,” or building a practice. It was about the paycheck.

His motivation came from the comments to an ABA Journal article about a consultant who says that 25% of her clients want to “affirmatively” leave the practice of law.  Many others would be willing to consider it.

The commenters, almost all anonymous, appear to be quite honest about their feelings toward the practice of law.  About half believe that it’s failed them financially.  So much of the discussions on this topic centers around Biglaw, the absurdly huge salaries coupled with the hugely onerous demands.  The oddity of this is that only a small percentage of new lawyers ever found themselves in the employ of Biglaw, cashing those monster paychecks and putting down the deposit for the Ferrari, even in the best of times.  The vast majority were relegated to trenches, where they had to work for a living. 

Apparently, nobody ever told them that.  Neither law schools nor practicing lawyers told the inchoate law students that the practice of law did not necessarily involve Susan Dey and filtered air in hermetically sealed structures.  While law schools continue to send out their pornography to entice the foolish and lazy to join them on Paradise Island, others, myself included, have offered some alternative thoughts to scare away those who really don’t want to be lawyers.

This does nothing, unfortunately, to help those who have already made the plunge into the empty pool.  Three years and $150,000 in the red, no job prospects in sight and just a bunch of old folks (myself included) unhelpfully telling them to pull themselves up by their bootstraps (what’s a bootstrap?) rather than sit in the basement eating Cheetos and whining about the misery of their lives.

The problem is that, aside from working hard, exceeding clients’ expectations, and persisting in the face of adversity, there isn’t much that I have to offer to solve the problem.  However, that doesn’t mean that others don’t have answers.

At the Lawyerist, Alexis Neely offers an alternative.  I haven’t always been very kind to Alexis, calling her a twinkie because of her perpetually perky demeanor, lack of substance and claim that she’s on a mission from God (who also provided her with a price list), but in this short post, Alexis finally offers an explanation of what she has to offer lawyers.

As many of you know, I’m a huge advocate for having a team and outsourcing. By the time I sold my firm, I was doing very little of the day to day activities of the business myself, which meant I only had to work 2-3 days a week. Nice, right?

Yes, very nice.

Alexis notes that the end result of the scheme doesn’t come without a start-up cost.

But, there are some times and some activities that call for you to suck it up and do it yourself. Especially when you are just starting out. When I first started out, I did just about everything myself.

I did my own intake with new clients. I did my own drafting of legal documents. I set up my own marketing events. I remember the first seminar I did and I was carrying the flowers, the projector and the screen in — all myself.

No free ride here, at least in the beginning. But that’s the price of success.  The only question is success in what?  It’s an interesting scheme, a lawyer variation on the bait and switch.  The salesman sucks in the clients with a happy face, smiling reassurance and slick presentation, then hands them off to a grunt to do the work.  That doesn’t mean that the work doesn’t get done, and get done well.  The grunt may be an excellent lawyer, and the client may be well-served by the grunt.  To the extent there’s an issue, it’s only that the client thought she was getting one person when she ended up with another, a person wholly unknown.

Nice?  Yes, very nice.  If you have the desire and ability to be perpetually perky, to instill comfort and security, to close the deal with 97% of  “new prospects,” this may be for you. 

It’s not a foolproof scheme.  It requires you to be willing to say and do whatever is necessary to reel the new prospects in.  There is, of course, a script to follow, and if you can practice the script with a look of sincerity on your face (it just takes a little face time in front of a mirror), chances are you can do it.  Then there is the need to find a bunch of working stiff lawyers willing to do the grunt work you’ve promised your new prospects for whatever piece of the pie is left over after you’ve taken your slice.  This might be a problem if everyone wants to be the front man, but that’s not a real issue since most will never get beyond the grunt stage.  There are always grunts.

So there you have it, an affirmative proposition to satisfy the needs of starving lawyers who are disappointed that their investment hasn’t paid off well enough, if at all.  There is only one real drawback to this scheme that can’t be overcome.  It’s not the practice of law.

It’s one thing for a cop to tell a bunch of kids, young toughs they used to be called, to move along.  After all, they’re just kids.  It’s not like they have the right to be there, or the smarts to question the cop’s right to command.  But don’t try that with a 62 year old woman.  She’s heard enough commands in her life. 

From the Atlanta Journal-Constitution, via Balko, the Atlanta City Council was scheduled to approve a $20 thousand settlement to Minnie Carey for the 10 hours she spent in jail on disorderly conduct charges.  The 62 year old Minnie Carey was standing on the street discussing funeral arrangements for her sister with some friends, when officer Brandy Dolson gave the ubiquitous command to all people standing on the street with black skin: Move along.  It’s not because Dolson did anything wrong.

APD was named in the suit, and a spokesman for the department said Friday that an internal investigation found officer Brandy Dolson “acted within the parameters of department policies and procedures,” which complied with national standards. “Those [national] guidelines are based on a set of proven standards that take into account the difficult situations police officers face every day, and the split-second decisions they must make to protect citizens and reduce their own personal risk,” APD public affairs director Carlos Campos said in an e-mail.

Sounds as if Dolson’s actions must have addressed a pretty serious situation, since there are national guidelines based on proven standards taking into account the difficult situations police officers face.  So what was the “split-second decision” Dolson had to make?

Around 4 p.m. on March 26, 2009, Carey and her friends were on the sidewalk in front of the Boulevard Lotto convenience store, just a few blocks from downtown Atlanta. They had been talking a few minutes about funeral plans for a woman they all knew when Dolson and his partner pulled up. Dolson told the women to “move it.”

Three women started walking away but Carey didn’t, asking “why” instead.

Dolson’s answer to Carey was “because I said so,” according to records.

“I’m a citizen and I’m a taxpayer and I have a right to be here. I’m merely trying to find out about a sister’s funeral,” Carey responded.

Busted.  Apparently, Officer Dolson wasn’t aware of the correct response to the question “why?”  It could have been so simple had he taken the philosophy elective at the Police Academy.  Instead, he took the class that taught him to say “because I said so.”  A lot of cops opt for that class.  It’s got the easier test.

The reaction to incidents such as this from the great blue circle is that outsiders, meaning anyone not an LEO, don’t understand the pressures of being a police officer.  A wag might respond that police officers don’t  understand the pressure of being a citizen confronted by a police officer.  On the high end, it’s the absence of dignity, being treated like a human being rather than cattle.  On the low end, it’s the fear of crossing the shield, turning “citizen and taxpayer” into submissive sheep complying with every utterance just to avoid the consequences.

Of the four women standing on the sidewalk in front of Boulevard Lotto, three chose to walk away rather than ask the question.  Only Minnie Carey stood her ground.  It got her 10 hours in lockup.  Her charges weren’t dismissed until the third court appearance, when Dolson failed to appear.  It got her $20,000 (less attorneys fees and expenses, no doubt).  Was it worth it?

On the flip side, Police Officer Brandy Dolson won’t be paying Ms. Carey a dime.  And why should he?  After all, he was just complying with those national standards developed to deal with critical split-second police decision-making when he told Minnie Carey, “because I said so.”

The following is a press release by the Innocence Project, repeated in its entirety:

SPECIAL MASTER APPOINTED BY NJ SUPREME COURT CALLS FOR MAJOR OVERHAUL OF LEGAL STANDARDS FOR EYEWITNESS TESTIMONY

Opinion is First in Nation to Recognize that Major Scientific Developments on Eyewitness Evidence Require Modernization of Legal Rules; Judge Strongly Endorses Innocence Project’s Recommendations for New Legal Architecture

(TRENTON, NJ, June 21, 2010) — A Special Master appointed by New Jersey’s top court is calling for a major overhaul of the legal standards for the acceptance of eyewitness testimony in court, citing 33 years of robust scientific research on memory and interview techniques.  The Special Master’s opinion was made public in a 64-page report today following an unprecedented hearing on eyewitness identification science and law that began in September 2009.

The most significant finding being transmitted to the New Jersey Supreme Court is that the legal test used by 48 states and the federal courts to determine the reliability of eyewitness testimony is full of “flaws and inadequacies” and should be replaced. 

Among the findings that led to this conclusion:

• Suggestive identification procedures can falsely inflate the reliability of eyewitness testimony, leading courts to accept evidence that should be rejected.

• Eyewitness memory is more like physical trace evidence than a videotape recording and should be treated accordingly because it can be contaminated, degraded or mishandled.

• Not just law enforcement but “outside actors” (e.g., other witnesses or family members) can contaminate a witness’ memory, and courts should take this into account when reviewing the reliability of testimony.

The court also recommended that prosecutors – not defendants – should bear the burden of proof regarding the reliability of eyewitness testimony, and that juries as well as judges should be fully informed as to the factors proven by science to impact eyewitness ID reliability.

 “Taken together, these findings represent a sea change in the treatment of eyewitness identification, both in the collection of evidence and in its presentation to juries,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “We are grateful to the Special Master for his diligence in assembling this exhaustive report and in creating the most extensive record to date on the scientific and legal standards that should be applied to eyewitness evidence.”

The findings of both science and law issued by the Special Master, retired judge Geoffrey Gaulkin, could eventually serve other states as a blueprint for revamping both their witness identification protocols and their rules regarding the use of such evidence in court, according to the Innocence Project, which was asked by the court to present testimony in an unusual extended hearing last year.  Many of the Innocence Project’s own voluminous legal findings and recommendations were adopted in the Special Master’s report.  The scientific research alone was so extensive that it was transmitted on a DVD that, if printed out, would encompass several thousand pages.

 “We are pleased that the Special Master’s findings embrace the scientific research, and state unequivocally that solid, up-to-date science must be fully integrated into New Jersey’s criminal justice system,” said Ezekiel Edwards, a staff attorney with the Innocence Project and a co-author of the Project’s report to the court.  “New Jersey has long been a leader on eyewitness identification procedures, and we expect that, as in the past, other states will follow suit.”

Mistaken identification is the most common element in a wrongful conviction, Edwards said, noting that nationally, 75 percent of the 254 DNA exonerees released since 1989 were sent to prison based on witness misidentification.  Three of the five exoneration cases in New Jersey involved misidentification.

The court’s report stems from the 2004 conviction of Larry Henderson, a Camden man who received an 11-year prison sentence for reckless manslaughter and weapons possession related to a fatal shooting in January 2003. He appealed the photo lineup procedure because officers failed to follow the New Jersey Attorney General’s Guidelines, issued in 2001, for conducting identification procedures. The appeals court agreed and ordered a new hearing on the admissibility of the photographic identification of Henderson.  Before that could occur, the state appealed, and the New Jersey Supreme Court decided that an all-out inquiry into witness identification procedures currently used by law enforcement was necessary. (The Innocence Project does not represent Henderson, who has since completed his sentence.)

Specifically, in appointing the Special Master, the New Jersey Supreme Court ordered a review of the legal standard for the admissibility of eyewitness testimony known as the “Manson test,” established by the United States Supreme Court in 1977 and fully embraced by 48 out of 50 states, including New Jersey in 1988 in State v. Madison.  

The two-part test is designed to determine first whether eyewitness procedures used by police to identify a suspect were impermissibly suggestive, and if so, whether the identification is nonetheless reliable under a five-factor test.  If, despite problems with the procedures, there does not exist a “very substantial likelihood” of an “irreparable” misidentification, a court must admit the identification into evidence.

In his report, the Special Master unequivocally rejected the test as inadequate, stating: “The short answer to the Court’s question whether the Manson/Madison test and procedures are ‘valid and appropriate in light of recent scientific and other evidence’ is that they are not.”

A crucial problem with the legal test, Judge Gaulkin found, is that some of the “reliability” factors upon which courts rely tend to falsely inflate errors in identification.  For instance, courts look to how confident witnesses are in their identifications, and yet a police officer can unconsciously lead a witness to pick a certain suspect, which will then artificially inflate the witness’s certainty in the accuracy of her “memory” of having seen that suspect commit a crime, even though the wrong person has been identified. Aspects of the police lineup (known as the “system variables”) combined with the factors related to the incident itself (“estimator variables”) can combine to create a powerful – but false – identification, numerous studies have found.

In seeking a remedy to these problems, the court endorsed as “sound” the Innocence Project proposal that courts examine the full range of scientific variables through the testimony of eyewitnesses and police officers at pre-trial admissibility hearings, and that both judges and juries be well-versed on the decades of scientific research in the field of eyewitness evidence. 

The Special Master also agreed with the Innocence Project’s recommendation that, as with the treatment of physical evidence, every case involving eyewitness identification should include procedures to test its reliability, and that many more factors that can affect reliability should be considered.

The Special Master’s report is expected to carry significant weight with the New Jersey Supreme Court, which will now take the findings into consideration in reviewing the Henderson case.  The issue will be briefed over the summer, and oral arguments are expected to take place this fall. Acceptance of the findings would result in a major overhaul of how eyewitness testimony is treated in New Jersey courts, and other states are expected to follow suit.

Lawrence Lustberg of the Gibbons firm in New Jersey and Ellen Lubensky assisted the Innocence Project in this case.

Read the NJ Supreme Court’s remand order requesting a review of the Manson test:

Read the Special Master’s report here .

Read Innocence Project’s proposed legal findings here .

Read the Innocence Project’s proposed science findings here.   

Read more about the three men in New Jersey wrongfully convicted due to mistaken eyewitness identification:  David Shephard (1995), McKinley Cromedy (1998), and John Dixon (2001).

Read a fact sheet on eyewitness identification reform here.

Look at the map of eyewitness identification reform policies by state here .

Read the Executive Summary “Reevaluating Lineups: Why Witnesses Make Mistakes and How to Reduce the Chance of a Misidentification.

It’s rare that we go to the movies anymore. The last time I went, the young lady at the ticket booth offered me a senior citizen discount ticket.  Being frugal, I chose to accept her offer rather than strangle her.  After watching the movie, I felt that I had overpaid.  It was awful.  Movies in the theater cost too much, and, at least in my opinion, aren’t very good anymore.  It seems that movie studios largely agree, which is why they keep trying to remake old movies rather than produce anything new.

Yet movie theaters have become the new battleground for Americans with disabilities.  Via Overlawyered,

The Ninth Circuit greenlights a potentially significant ADA suit, reversing a trial court that “found that the Americans with Disabilities Act and the Arizonans with Disabilities Act do not require movie theaters to provide captions and descriptions.”

It made some sense to me that hearing impaired movie watchers could benefit from closed captioning, though it wasn’t entirely clear how the captions would be closed for them and not for everyone else in the theater.  Some people find the writing on the screen to be very distracting.  Then again, foreign movies with subtitles had writing on the screen, so it’s not as if the concept was unheard of. 

What I was unable to figure out was how the visually impaired would be accommodated.  A movie, by definition, is a visual medium.  It struck me as music for the deaf, a problem any way you twist it. It’s not that I don’t care or wish there was a way in which people whose senses aren’t working as they should could enjoy all that life offers.  I just have some difficulty figuring out how to accomplish it, and how to accomplish it without sacrificing something else in the process. 

From the Yuma Sun came the part of the 9th Circuit’s decision that explained what would be required.

None of the Harkins theaters offers “descriptive narration,” where someone describes the action occurring on the screen to those who are blind or have limited vision.

Two years ago, U.S. District Court Judge Roslyn Silver acknowledged that without those devices there are people who will not have access to many of the popular movies. And the judge said the anti-discrimination laws are generally designed to ensure that people are not excluded from places of public accommodation.

This was new to me, which comes as no surprise since I’m not on the cutting edge of devices for the visually impaired.  Judge Proctor Hug, Jr., who authored the opinion, explained his position through a comparison:

“For example, a courthouse that was accessible only by steps could not avoid ADA liability by arguing that everyone — including the wheelchair bound — has equal access to the steps,”

It’s very unclear why this would serve as an example of proper accommodation for including descriptive narrative in a movie theater, given the number of obvious distinctions between the two.  In fact, if this is the best example the court could find, it suggests that the decision far overreaches.  Consider what would be required of a public dancehall to accommodate wheelchair bound patrons.  Where does the line get drawn?  Does a line get drawn?

As for descriptive narrative, however, it doesn’t seem to be such an unduly burdensome accommodation once you think about it.  Courtrooms are often equipped with funky looking earphones for non-English speaking defendants to listen to translations of proceedings.  While they don’t always work very well, they are available and, once working, generally satisfactory for their intended purpose.  It’s unclear to me whether it would left to movie producers or theater owners to create the descriptive narrative, the former being the only rational choice since it makes little sense to leave it to a theater owner to decide what’s worthy of description and what’s not. 

Whether this will enable the visually impaired to enjoy the experience of “watching” a movie in a theater is a question to be answered by others.  It may be fine.  It may be the least troubling alternative. I dunno.

But the price of a movie ticket today is outrageous.  There may be technology that will allow the sight and hearing impaired to go to a theater and enjoy a movie, but it’s not going to help them pay the cost of the ticket.

The Times Square Fizzler, Faisal Shahzad, is scheduled to be arraigned today on an indictment charging ten counts of weapons and terrorism.  Ten counts? Ten?  Wow, he must be a really evil terrorist.

When Faisal Shahzad first appeared before Magistrate Judge Yanthis, following his nice, extended, mirandized chat with the government, there were only 5 charges.  Now there’s 10.  When I turned on the news this morning, it was the lead story.  Shahzad to be arraigned on 10 counts!  Oh my God, this changes everything.

When the question arose about what, if anything, Shahzad had in mind when he agreed to forsake his constitutional rights and tell government agents everything they wanted to know, a curious choice given that he was so radicalized moments before that he was prepared to blow up a car bomb in Times Square and yet now wanted to cooperate fully with the Devil Empire,  Obviously, the plea deal has yet to be cut, and now that federal defender Julia Gatto has the case, it may not be as easy for the government to deal with Shahzad as it was when he was left to his own devices.

But where’s the love?  Okay, maybe love is the wrong word to use, but appreciation?  Did the government not state that Faisal Shahzad was giving up everything and everyone in sight?  Was he not fully cooperative?  Did he not turn out to be a talkative fellow? 

The number of counts in an indictment is primarily a Public Relations thing, designed to suggest to the unknowing public that a criminal defendant is a really bad person.  Like the Six Flags commercial (more flags, more fun), more charges, more evil.  The media eats this stuff up, and spits it out as if it’s the most critical piece of news around.  In this case, upping the charges from five to ten (“Well, Mary, the Government had doubled the number of charges against Shahzad.” “That’s right, Bill, Shahzad must be double the terrorist we thought he was [insert serious face]; and now [insert smile], a word from our sponsors…”) is of no legal consequence.

So what’s the point?  There has to be a message in the decision to indict Shahzad on ten counts rather than five.  The problem with trying to decipher the message is that it all comes after Shahzad spent all that time talking his head off to the agents. Is the message directed toward the general public, that the government is very serious about prosecuting terrorists and will do so “to the fullest extent of the law,” a phrase that has long embodied the worst imaginary fear that can be shoved down non-lawyer’s throats.

Perhaps the point of the doubling of the counts is to suggest that terrorism is, and will remain. a very serious threat to our way of life, reminding us that we should be very afraid and ever-ready to give up any right that stands in the way of safeguarding us from this threat.  After all, the whole Shahzad fizzle didn’t really strike much fear in the hearts of New Yorkers.  I mean, seriously, this guy couldn’t get a car to explode?  That happens every day on the BQE without even trying.  It’s going to take a lot more than a fizzler to shake up New York. 

There’s another group out there for whom a message might be intended.  What of the would-be radicalized home-grown terrorists?  Are you trying to scare him with this five to ten count deal?  But what of the incentive to come on in, chat about it, let’s make friends experience that follows the hourly waiver of Miranda?  Isn’t there a message to be sent that if one cooperates with the government, there’s something in it for you?

It seemed that the government had taken a giant leap down slippery slope when it held Shahzad incognito for so long, but happily informed us of his cooperation.  There’s nothing better than a cooperative terrorist.  There’s nothing that makes less sense, but whatever.  The use of many of the ploys that affect the public’s perception of the process, not to mention the perception of future cooperators, seem to become badly confused in these cases where the standard incentive process, the promise of some amorphous benefit to the criminal if only they turn a new leaf and become the government’s newest, bestest friend.  The government simply cannot become newest, bestest friends with terrorists, even if he turns out to be a fizzler.

So Faisal Shahzad is charged with ten counts.  Not five, but ten.  Ohhh, scary.

Update:  At 4:30 in the afternoon, Shahzad pleaded guilty to all ten counts before Judge Mirriam Cedarbaum.

“How do you plead to that charge?” the judge asked.

“I do plead guilty to that charge,” Mr. Shahzad said.

The judge then said to Mr. Shahzad, “I gather you want to plead guilty to all of them.”

“Yes,” Mr. Shahzad said.

Shahzad added:

“I want to plead guilty 100 times over,” said Mr. Shahzad, who faces life in prison.

And the point of those ten counts are?  We shall see, no doubt.

Jeff Gamso opens a post about how our belief clouds critical thinking by offering the spectrum of evidentiary tests available on the market.

The constitutional measure is Beyond a Reasonable Doubt.  It’s near an end point on a legal continuum of evidentiary certainty:

• Mere Scintilla
• Reasonable Suspicion
• Probable Cause
• Preponderance of the Evidence
• Clear and Convincing
• Beyond a Reasonable Doubt
• Residual Doubt
• Beyond All Doubt

Legislatures and courts have tried, at one time or another, to explain or define all of those terms.  So have lawyers.  Only two of them have anything like clarity.

“Preponderance of the Evidence” means more likely than not.

“Beyond All Doubt” means absolute certainty.  Which, of course, isn’t the same as truth, since it’s perfectly possible to be absolutely certain of things that are not so.  (Consider the beliefs, once widely held, that the earth is flat and is the center of the universe.  Or consider the belief, now too-widely held, that Barack Obama was born in Kenya.)

Years ago, a committee was formed to reform the jury charge in New York intended to explain “beyond a reasonable doubt” to normal people.  I was asked to serve on the committee and, before answering, sat down and tried to scribble some thoughts on the subject down on paper.  This was back when pen and paper were still in use.  I had nothing. I demurred, as I didn’t believe I had anything to add to the mix and that someone smarter than I would be needed.  The committee ultimately came up blank as well, and was never heard from again.

As might be suspected, I read quite a bit.  Unlike others, however, I don’t understand too much of what I read.  I see the words, strung together one after another, but as I read them silently, than repeat them aloud, they make no sense to me.  It appears as if they should say something, and I get an impression of meaning, but when I test myself by muttering, what exactly does that mean, I can’t explain it.  I spent a lot of time reading Orwell as a boy.

I like the preponderance of evidence test because I know what it means.  A mere 50.001 percent of evidence takes it.  More likely than not.  It’s quickly explained and easily understood.  Its application is another matter, since what makes something more likely than not is left to each individual’s experience and sensibilities.  For someone inclined to believe that police would have no reason to lie, the argument that they have manufactured testimony to fill in the gaps might fail miserably.  For someone who believes that testilying is commonplace, the argument may prove obvious. 

We view the conduct of others through the prism of what we want to believe to be true of ourselves.  We often see our own sensibilities just a little better than we really deserve.  We aren’t as good as we want ourselves to be,  We aren’t as honest with ourselves as we demand of others.  So if we’re put to the test of judging the conduct of others, we hold them to a standard higher than we would meet.  [Addendum: This is true of morality as well, where we think a bit too highly of ourselves.]

But what of the constitutional test, beyond a reasonable doubt?  New York pattern jury instructions begins its “explanation” in the negative:

What does our law mean when it requires proof of guilt “beyond a reasonable doubt”?

The law uses the term, “proof beyond a reasonable doubt,” to tell you how convincing the evidence of guilt must be to permit a verdict of guilty. The law recognizes that, in dealing with human affairs, there are very few things in this world that we know with absolute certainty. Therefore, the law does not require the People to prove a defendant guilty beyond all possible doubt. On the other hand, it is not sufficient to prove that the defendant is probably guilty. In a criminal case, the proof of guilt must be stronger than that. It must be beyond a reasonable doubt.

How curious that the first thing we tell a jury is that “there are very few things in this world that we know with absolute certainty.”  As Gamso’s post goes on to say, there are many things in this world we believe with absolute certainty.  Our belief may be wrong, but that doesn’t stop us from being absolutely certain about it.  The fear here comes from the prosecution (which the jury instructions call the People, as in the People of the State of New York, the way the prosecution prefers the jury to think of it so that they represent them, the People on the jury, from criminal defendant) that the jury might expect too much of it. 

Nothing in the opening paragraph informs what beyond a reasonable doubt is, just what it isn’t.  The closest it comes is repeating the undefined words.  By definition, that doesn’t help.  Next comes the best effort at an explanation.

A reasonable doubt is an honest doubt of the defendant’s guilt for which a reason exists based upon the nature and quality of the evidence. It is an actual doubt, not an imaginary doubt.

What distinguishes an actual doubt from an imaginary doubt? Since it’s an honest doubt (as opposed to dishonest?) for which a reason exists, must an actual doubt require a reason?  If so, then it must not be sufficient to simply believe, as people do when it comes to cops never lying or DNA being beyond dispute.  It’s thus incumbent on the doubting juror to have a reason, which means that he can explain that reason to his fellow jurors.  The ability to enunciate a reason, and one that is actual and not imaginary, is a unspoken requirement of jury service, if one is to question guilt.  

It is a doubt that a reasonable person, acting in a matter of this importance, would be likely to entertain because of the evidence that was presented or because of the lack of convincing evidence.

A reasonable person.  Ask the jurors to raise their hand if they believe themselves to be an unreasonable person. 

Proof of guilt beyond a reasonable doubt is proof that leaves you so firmly convinced of the defendant’s guilt that you have no reasonable doubt of the existence of any element of the crime or of the defendant’s identity as the person who committed the crime.

And finally, we arrive at the point of the explanation: Proof that leaves you so firmly convinced of guilt that you have no reasonable doubt.  The only operative words are “firmly convinced,” since returning to the language to be defined is worthless. 

We are firmly convinced of many things which seem to be true but for which we have no evidence.  They are our articles of faith, the basics upon which our belief system exists.  Many come from our parents, who believed them and taught them to us. Others from our friends, the television (which would never lie to us), and even the internet. 

These are the things upon which we make the most important decisions in our lives.  Not just mere important decisions, but the most important ones, critical one, life and death ones.  And they invariably rely on our trust that they are true, because we believe them to be true.  It’s not like each of us can individually test the truth of every single belief we hold, and if we didn’t have articles of faith upon which to make decisions, we would never be able to decide anything.  We would just stand there, paralyzed.

Judges know that the instructions for “beyond a reasonable doubt” are meaningless.  They adhere to the pattern most of the time because it’s terribly risky to try something different.  It’s almost a recipe for reversal.  But they know that the instructions are incomprehensible.  Judges, scholars, lawyers, smart people who entered the law because of their inability to stomach the sight of blood, have all tried to come up with better, comprehensible instructions.  No one has ever done so. 

Guilty people get convicted.  So do innocent people.  And no one can explain to a jury how to distinguish between the two.  Words are given them that mean nothing, strung together to give the impression of meaning, though no comprehensible meaning can be discerned.  Defendants are convicted because a jury believes.  And lawyers and judges keep repeating the words “beyond a reasonable doubt” because we want to believe it means something.

Matt Brown at Chandler Criminal Defense  writes about the wasted anger of a judge reading the riot act to a defendant who, when his crime and history are considered in a rational light, doesn’t deserve such vitriol. 

“I’m very sorry, and I will not let it happen again,” the defendant said. The judge attacked before he could even finish, asking him why things were going be different this time. She threw his priors at him when he tried to explain. She rubbed in the fact he was on probation when it happened. She expressed her disbelief by rolling her eyes, and she made sarcastic remarks. His pleas fell on deaf ears. She beat him up, on the record and in a standing-room-only courtroom. He was mortified.

As Matt goes on to explain, this particular defendant was hardly the sort that deserved to have his head ripped off.  Of course, that’s irrelevant, as the judge is omnipotent in the courtroom.  If the judge decides to denigrate a defendant at sentence, even when it’s baseless, there’s nothing anyone can do to stop her.  Appeal later, perhaps, but for that brief moment in time, she owns the room.

While it’s relatively common for a judge to show what Matt calls “tough love” at sentence, some are totally out of control, lambasting, ridiculing, denigrating the defendant, who stands there with no choice but to endure the judge’s vitriol.  One judge in Manhattan, Leslie Crocker Snyder, was so harsh in her rhetoric that she was the subject of a number of death threats, and had round the clock police protection (at enormous cost to the taxpayer), all so she could vent her spleen at defendants.  She was drunk with the power, and she held her vitriol out as a badge of honor as she tried to run for subsequent office.

One of the virtues expected of a judge is a judicial temperament.  The ability to restrain oneself despite possessing awesome power, to speak calmly, rationally, politely to all before the court.  This includes the defendant.  This includes sentence.  This virtue is put on display during elections and appearances before boards to approve merit on the bench, even when it can’t be found in a courtroom.

Matt pointed out the judge’s anger was wasted on this defendant.

The judge wasted her anger. The guy’s a repeat offender, but look at the offenses. Didn’t she think for one second that it was ridiculous making an example out of a guy who took a cactus and tried to enter his own shed? He’s already at least a two-time felon. Although it’s for dumb reasons, employers probably don’t care. He’s going away for a relatively long time. Her scolding had no real effect.

Wasted or not, the judge had no authority to play moral arbiter, avenging angel, mother.  The judge had no authority to ream the guy out.  The judge’s job is to impose a sentence that satisfies the legal criteria.  No more.  No less. They are not endowed with righteousness when they put on a robe, and they are not entitled to treat defendants to an uncontrollable dose of their “wisdom”. 

Power corrupts.  Judges wield essentially absolute power within the limited confines of their room.  And to the extent that this power is at its strongest, the time between the defendant’s opportunity to speak to the court and the imposition of sentence is the most vulnerable.  The sentence has yet to be pronounced, and it would be insane to make an effort to stand up to the person who is about to utter the number of years your client is about to spend in prison.

Judges think of this as an act of courage on their part.  It’s ridiculous.   It takes no courage for a judge to ridicule and demean a defendant who can do nothing to stop her.  It’s an abuse of power, nothing more.  

A  judge who gets off on abusing a defendant at sentence isn’t showing tough love, but that they have no business wielding the power they possess.  Whether or not the defendant’s crime is unforgivable, so too is the judge’s abuse of power.

Robert Dziekanski deplaned in Vancouver and expected to meet his mother.  Somehow, he “disappeared” within the secure customs area.  He spoke Polish.  He didn’t understand the formalities.  His mother wasn’t there at the baggage carousel to meet him as he expected, though she was unable to get there because it was a secure area.  After all this, he was disoriented.

Royal Canadian Mounted Police (RCMP) came to help this disoriented Polish traveler.  Within 30 seconds, he was tased five times.  Then he died. 

But there’s a slight twist, perhaps because this happened in Canada. Perhaps because of the outrage at this death. Perhaps because it was caught on video by another traveler.  An independent commission led by Thomas Braidwood was created to investigate how and why this fellow from Poland ended up dead in the Vancouver Airport. 

“Deliberate misrepresentations made for the purpose of justifying their actions.” 

How many time have you wanted to hear that come out of the investigation, as opposed to “We find that the officers did nothing wrong and acted in accordance with police policy.”

Braidwood’s conclusions are quite remarkable for their candor and strength.  Yet three things continue to bother me:

1.  Robert Dziekanski is still dead.
2.  Taser use is still pervasive
3.  Had there been no video, the RCMP story would have been conclusive.

So we have a truly critical investigation of this truly horrific conduct.  Does it change anything?

H/T Ed at Blawg Review