The law distinguishes two functions of a police officer, the first being the criminal function and the second being the public safety function.  This explains the “protect and serve” motto on the side of patrol cars, which isn’t an obligation but rather an aspiration.  If you have to sell the police to the public, it’s always good to have a motto.

When Boiling Spring Lake, North Carolina, police showed at the home of Mark Wilsey, it was for the second function. Wilsey’s son Keith Vidal was schizophrenic, and was having a psychotic episode.  That happens. Nobody asks to suffer from mental illness, and most parents try to love and care for their children nonetheless. But sometimes, things can get out of control and help is needed. Continue reading →

So what if it comes weeks after the legal world knew and discussed the call to arms of the 9th Circuit chief judge, Alex Kozinski?  Seriously, so what?  Isn’t it better late than never that the New York Times pens an editorial praising his Olson dissent?  Of course it is. Don’t be a hater.

In the justice system, prosecutors have the power to decide what criminal charges to bring, and since 97 percent of cases are resolved without a trial, those decisions are almost always the most important factor in the outcome. That is why it is so important for prosecutors to play fair, not just to win. This obligation is embodied in the Supreme Court’s 1963 holding in Brady v. Maryland, which required prosecutors to provide the defense with any exculpatory evidence that could materially affect a verdict or sentence.

No, don’t cringe at how the editors took breathless liberties Continue reading →

As predicted, the Old City of New York, ruled by the sensibilities of billionaire mayor Michael Bloomberg, pushed forward with their efforts to defend the Stop & Frisk policy even after the mayor of the New City of New York was crowned.  Corporation Counsel Michael Cardozo had an office full of lawyers, and told them to get their brief done before the guards changed, and they did.

But in the cesspool of the 2d Circus that has come to characterize the Floyd and Ligon cases, affecting more New Yorkers than perhaps any other, the City’s attempt to leap-frog perfecting its appeal barely made a ripple.  When the stories involve daring feats of acrobatics and amazingly scary clowns, the filing of a brief doomed to never be decided doesn’t rate much attention.

And yet, there is another request that’s flying relatively low to the ground, enough so that it hasn’t really been noticed yet, Continue reading →

More proof of the blind squirrel theory, Above the Law posts padawan Keith Lee’s small firm/solo practice column on a theory I’ve never heard of before, The Fallacy of Chesterton’s Fence.

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.

Put simply, don’t ever take a fence down until you know the reason why it was put up.

This is a life rule, but its application to law is abundantly clear and important. Continue reading →

Now that the assumed nonsense that electronic toys will crash planes and bring death raining down on the people of Kansas is over, the next big debate will be whether people should be allowed to make calls on their cellphone. There is a safety issue, of course, because people who don’t want to listen to someone talking loudly about their cat may try to kill.

In fairness, I’m not a telephone talker. I use the phone when I must, but feel no need to chat to kill the quiet.  And I am not a fan of cellphones. I never give out my number and only turn it on if I need to make a call out. I do not take calls on my cellphone. Did I mention I don’t like cellphones?  So take what follows with a grain of salt, knowing my bias.

At Volokh Conspiracy, Ilya Somin writes about John McGinnis’ libertarian position on cellphones: Continue reading →

A kindred spirit in a 29-year-old?  Well, maybe, though Evgeny Morozov gets far more traction than I ever will. Still, the immediate sense of camaraderie was obvious.  From the latest cover story at the Columbia Journalism Review:

To say that Morozov has gone out of his way to irritate powerful and influential people in the tech world doesn’t quite capture it. Doing so is his primary occupation. In the Morozovian worldview, New York University professor and social-media theorist Clay Shirky is a “consultant-cum-intellectual”; Google’s mission is to “monetize all of the world’s information and make it universally inaccessible and profitable”; and Tim O’Reilly, the Silicon Valley publisher and venture capitalist who coined “Web 2.0,” is an Orwellian “meme hustler” and the main culprit behind “the enduring emptiness of our technology debates.” To millions of viewers, TED talks are inspirational speeches about “ideas worth spreading” in science and technology. To Morozov they are a “sinister” hyping of “ideas no footnotes can support.”

And, Continue reading →

When some of the staunchest defenders of legal tech go on a rant, it tends to provide an interesting look beneath the surface of the future of law crowd.  The suspension of Fred Barakat from the practice of law in Delaware gave rise to such a rant, and certainly lit up the tech crowd, starting with Niki Black:

At issue was whether Mr. Barakat, a Delaware lawyer, had engaged in a number of ethical violations, including whether he had violated the bona fide office rule. It was alleged that Barakat had access to office space in Wilmington such that he could rent a conference room, when needed. Additionally, employees of the landlord collected his mail and directed any visitors to the fourth floor where a receptionist was stationed who greeted visitors.

In response to the allegations, Barakat claimed “that advances in technology enabled him to handle client matters effectively, despite his lack of presence in the Wilmington office.” Continue reading →

There is an ugly side to the saying, you may beat the rap but you won’t beat the ride. Actually, everything about it is ugly, but one that happens with some rarity is that the winning defendant, the guy acquitted after trial or whose case is dismissed after suffering the full panoply of indignities associated with the best legal system ever, can’t let go.

Some people are changed by the ride.  This may be because they’ve become enlightened to a system that destroys at its best, and feel compelled to fix it. Others just can’t walk away from the indignity suffered.  For the most part, this doesn’t work well. It gnaws at people’s souls, and their grandiose expectations of change fall decidedly short.

But what if the guy is a billionaire? Continue reading →

A constant in criminal defense is the fight to convince someone, whether government agent, prosecutor or judge, that their perspective of what things are and how things should be is not universal.  Whether it’s explaining why a Chinese immigrant would eschew a bank account for keeping their savings under the mattress, or why a street kid in Harlem doesn’t see a future for himself at Harvard.

We are all limited by our scope of knowledge and experience, and the more limited, the narrower the understanding and more likely to find things outside our scope of knowledge to be wrong, dangerous, nefarious.  It results in innocent conduct being deemed criminally intended. It results in destroying the things with which we’re unfamiliar, and thus afraid. Continue reading →

The question of what, if anything, should be required of the government before an agent can rifle through the contents of your computer or, worse still, seize it for mirror imaging with a promise that it may be returned to you someday by someone you will never know, at the border has been a difficult one.  It’s not that it has been entirely without historic precedent, as border agents could look through your briefcase at the papers within to make sure you weren’t carrying the Zimmerman telegram, but it’s not like they read it all page by page.

But computers are different. Computers contain our secret, private lives. Some of it may well be of great interest to the government, though most of it is none of their business under any circumstances, and more about our own personal privacy than any wrongdoing. Computers bring a level of intrusiveness inconceivable before their existence.  And so, their seizure and inspection raises issues that never before existed. Continue reading →