But For Video: Former Cop Rory Bruce Acquitted Edition

A classic quote from the police union business manager :

“Police officers have to make split second decisions in life and death situations and I don’t think that folks over at the Circuit Attorney’s office or folks up in Internal Affairs should second guess them based on their brief impression of a video tape,” says Jeff Roorda with the SLPOA. “It doesn’t tell the whole story,” he says.

Does it bring a tear to your eye, knowing what we put these cops through when they’re just trying to do a tough job under near-impossible conditions? Completely understandable, since they do have to make split second decisions in life and death situations. But then, that wasn’t what was happening with St. Louis Police Officer Rory Bruce on February 20, 2012, which we know because there was dash cam video.

There was nothing life or death about the decision Rory Bruce made to pound this cuffed teenager in custody. Yet, he was acquitted by Associate Circuit Court Judge Theresa Counts Burke. Not because she found this conduct acceptable, but because she never watched the video.

Prosecutors had also tried, but failed, to get the teenager on the stand. First they couldn’t find him, then when they did, he asserted his Fifth Amendment right against self-incrimination.
But the video never made it into evidence because the law required prosecutors to authenticate it with someone who had personal knowledge of the events. Bruce refused to testify against himself, on the same constitutional grounds as the teen.

The teenager involved was never charged, leaving the prosecution with nothing to trade off for his testimony. As for doing the right thing against Bruce, well, the right thing on the street can sometimes be a bit different than what some of us might hope for.

But what of the other officer present, Bruce’s partner, Jacob Fowler?

That left Fowler, who claimed the same but was forced to testify after prosecutors granted him immunity from charges and obtained a last minute order from another judge.
When Fowler viewed the footage, he testified it differed from his recollection of events.

Maybe he recalled rainbows and unicorns. Who knows? What he clearly didn’t recall was anything that could be used against his partner. What a surprise.

Burke ruled he thus couldn’t authenticate it. That left only the testimony of a few police employees, who couldn’t say much because of hearsay rules.

The Circuit Attorney, Jennifer Joyce, apparently argued that the video was self-authenticating:

She said the video, filmed from a police cruiser, “speaks for itself.”

Actually, it doesn’t speak at all if no one in a position to decide Bruce’s guilt sees it, no matter how loudly it speaks to the rest of us. Were the judge’s hands tied by the rules of evidence, forcing an acquittal in the bench trial for lack of evidence? Should the video have been admitted under the business record exception, for example?

This is where the rules of evidence, the ones that protect a defendant from unreliable, tampered, partial/misleading proof, turn around to bite us on the butt. Because the defendant here was a cop, and the video so damning (even though it never tells the whole story, like how the other children made fun of Rory as a kid), should the rules of evidence be relaxed when we might really hope a bad cop gets burned?

Bear in mind, the same rules of evidence that apply to Bruce apply to anyone else.

And yet, union spokesman Roorda can’t help but gild the lily:

“You’ve got a guy who has twice skated on serious charges all in the interest of prosecuting a police officer on a misdemeanor where the only evidence is video that exonerates him,” Roorda said in a prepared statement. “This is more than a case of prosecutorial indiscretion; it’s a case of prosecutorial vanity.”

So this video exonerates him, Jeff? It may not have been admissible in a court of law, but it surely is in the court of public opinion, and it’s not likely that anyone watching the video will be giving him a good cop medal. Naturally, the union is asking that Bruce, who was fired as a probationary officer, be reinstated now that he’s been found not guilty. Hasn’t he suffered enough?

It’s Always The Other Cop

Reading Peter Moskos’ review of Radley Balko’s new book, Rise of the Warrior Cop, one thing stuck out like a sore thumb. Moskos, a former police officer and now professor at John Jay College for Cops, wrote:

Balko carefully prefaces his argument by noting that it isn’t, at its core, “anti-cop.” I suspect this is because he hopes to convince as many people as possible. As a former police officer, I have my doubts. Balko asserts that most police officers regularly commit felonious perjury. Lying, he writes, is “routine,” “expected,” and “part of the job.” He supplies little evidence for this claim – an absence that is particularly notable because the rest of his book is so meticulously researched and thoroughly footnoted. “Bad cops are the product of bad policy,” he warns us. But this is too glib. Bad policy creates bad policing. Bad police, however many there may be, are a separate problem.

It’s not that Moskos denies that bad cops exist, or that cops sometimes lie, but he maintains the “one bad apple” argument until proven otherwise. Some of the verbiage is sloppy, such as claiming that Balko “asserts that most police officers regularly commit felonious perjury.” Nowhere does Balko speak to “felonious” anything, suggesting that Moskos enjoys a bit of hyperbole in his word choice at the expense of accuracy. Note the irony, as it’s something we’ll come back to later.

Some of us know a few cops. I know Radley does. I do. Some of you will as well. And for the most part, when you talk to a cop outside of his duties, or hang out with one at the bar sipping a beer, you will find them to be no different than anyone else. They can be great guys and gals, fun to talk to, pretty good about picking up the tab and pretty bad telling jokes. In other words, they’re people.

But in the performance of their duty, something changes. The definitions of what they do change from the ones we use at a backyard barbecue to the ones they use on their reports or on the witness stand. What non-cops, lawyers included, often fail to appreciate is what a cop means when he speaks of a lie.

Plant drugs on an innocent person? Lie
Put a throwaway into the hands of a dead civilian? Lie

These are lies. These are big lies that turn an innocent into a guilty, a bad shoot into a righteous shoot. Some cops will justify why these big lies are acceptable, but many cops will not. They draw a line at the big lie, even if they won’t rat out their brother who doesn’t. But they won’t perceive their silence, their failure to tell the investigating officer the truth about what they saw, as a lie. That’s a little lie, a required lie, because cops don’t rat out cops.

Then there the details. A tractor trailer obscures the observer’s vision as the undercover takes the hand to hand in a buy and bust, but he testifies that he saw the defendant hand the drugs to the undercover. To us, that would be a lie. To the testifying officer, not so much. You see, his partner told him it happened, and so it did. The perp is dirty, but the testimony needs to flesh out the details. So he fills in the underlying gap with what he is certain is the truth, even though a small lie is needed since he didn’t actually see it happen. This isn’t a lie. This is the job.

Moskos challenges Radley’s assertion that police testilying is pervasive: “routine,” “expected,” and “part of the job.” Where is the proof, Moskos asks? It’s a fair question. There may be a million anecdotes, but what good are anecdotes when the question is whether there is any empirical evidence to establish such a claim?

The problem is that the only basis for empirical proof of the pervasiveness of police lying would have to come from the police. It’s of little use for those of us on the other side to fill out questionnaires by researchers about the lies told in the reports or on the witness stand. We are the adversaries. Our claims are inherently untrustworthy. Only an admission by police that they color their testimony, fill in the gaps by making stuff up, say what they have to say to overcome the law, the lack of evidence, the burden of proof, in order to fulfill their bottom line obligation of making sure the bad guy loses. And while there is no incentive for them to do so, even if there was they wouldn’t support such a claim.

Why? Because to a cop, these aren’t lies.

Turning back to Moskos’ hyperbole, that Radley asserted that cops engage in “felonious perjury” all the time, those two words, felonious perjury, capture the problem in a nutshell. Those aren’t Radley’s words, and nowhere in his book is that phrase used. Moskos made it up, but it’s not wrong, it’s not a lie, because it serves to help him make his point.

Gilding the lily? Filling in the gaps? Creating a strawman? There are plenty of names for what Moskos does there, but the fact remains that for the rest of us, it would be a deliberate falsehood. A lie. It never happened, yet Moskos says it did. But then, Moskos was once a cop, and so he’s working with a very different definition than the rest of us.

Almost any cop you talk to in a bar will tell you stories of bad cops, lying cops, violent cops. No cop will deny they exist, and most, with a beer in their hand at least, will readily admit they know one or two. But ask them if they do it, if they lie, and they will look you in the eye and tell you that they aren’t one of the bad cops. And as far as they’re concerned, that’s the truth.

Submission to What Shield?

The story of University of Virginia sorority gal, Elizabeth Daly, having been swarmed by a half dozen ABC agents, raised hackles and dismay for the absurd excess of the faux-cops, who were given guns without guidance. As explained by Brian Doherty at Reason,

A group of state Alcoholic Beverage Control agents clad in plainclothes approached her, suspecting the blue carton of LaCroix sparkling water to be a 12-pack of beer. Police say one of the agents jumped on the hood of her car. She says one drew a gun. Unsure of who they were, Daly tried to flee the darkened parking lot.

“They were showing unidentifiable badges after they approached us, but we became frightened, as they were not in anything close to a uniform,” she recalled Thursday in a written account of the April 11 incident.

So they made a mistake, thinking sparkling water was beer. Mistakes happen. And Doherty forgets that sparkling water is a gateway beverage. Next it will be soda. Then who knows what? Isn’t it worth a gun drawn now to stop a lifetime of Mountain Dew?

But the real issue in the stop stemmed from the annoyance felt by the agents, who suffer from a general lack of self-esteem due to their having shield and guns, and yet still considered the pimples of law enforcement, that their commands weren’t immediately followed. Contempt of Alcoholic Beverage Control Agent may not have much of a ring to it, but is more than enough to get them all riled up.

At Concurring Opinions, Frank Paquale asked the harder question about the stop:

We know that, in theory, citizens have some rights vis-a-vis police. But in practice, does it make sense to simply submit to any person waving a badge?

What occurred to Daly reflects an unfortunately common scenario: she was engaged in the heinous conduct of purchasing sparkling water. The significance is that Elizabeth Daly was doing nothing that would have suggested to her any risk of confrontation or arrest by law enforcement. She wasn’t on guard for it. She wasn’t prepared for it.

If she heard a fully uniformed cop screaming from across the parking lot of the Harris Teeter (which I assume to be the Virginia flavor of the Piggly Wiggly), she would never have thought the cop to be yelling at her. Why would he? Why would anyone be interested in her? See the dilemma?

So when six people in plain clothes swarmed three girls who had no reason to anticipate anyone being unhappy with them in a parking lot, what were they to do? The agents were in street clothing, and looked like anybody else on the street, except that their badges were displayed.

There was once a time when nobody, but nobody, wore a copper shield except a police officer. Those days are long gone. There are a lot of shields floating around these days. Some worn by private individuals who want to be cops. Some worn by private individuals who want to use the pretense of being a cop to do bad things. Some worn by cops. Some worn by the empowered agents of the 37 thousand other agencies of government that have been given limited police powers.

They all have one thing in common: There is no way to read what the shield says unless you get up close and personal under circumstances that allow for clear-headed observation. And not to be overly technical, but even if it says “Police Officer,” that doesn’t end the inquiry. How can one tell if the shield is real of a phony? How can one tell if the shield is in the possession of a real cop? A shield alone leaves a lot of questions unanswered.

Police have addressed some of these issues by acknowledging that people being stopped on a dark road at night when there is no one around by an unmarked police car should be allowed to drive to a populated, lighted area before pulling over. Their unmarked cars have been turned to low profile cars, since few phony cops are willing to spend the dime to put markings on cars. Better that than another woman raped by a pretender.

Was Daly wrong not to immediately submit to authority because six people started screaming at her? Forget that it was for an asinine trivial violation, and that the agents appear to be pathologically stupid and out of control, and a disgrace to their agency. Let assume they had an actual reason to stop Daly and do so in such an aggressive manner. Did the shields alone suffice?

Underlying the question is the problem that the agents, who knew they were real agents and expected Daly to submit to their authority, lacked the capacity to grasp that their knowing who they were doesn’t mean Daly knows. This is a variation on narcissism, the assumption that the rest of the world automatically knows how important they are and will submit to their commands because they know who they are.

The shield isn’t good enough. And the potential outcome from such mindless expectation that people will be capable of knowing whether a swarm of six plain-clothed people with guns are law enforcement or rapists can be deadly. Daly might have run an agent or two down, but more likely an agent would have shot and killed a 20-year-old college student who bought sparkling water and failed to comply with his commands.

And you can bet that if bad went to worse, the agents would have been cleared of any wrongdoing, acting to protect themselves from harm by a young woman with no way of ascertaining what was happening. Fortunately, no one ended up with more than butthurt feelings here, although Daly sat in jail until the charges against her were dropped. Not that this isn’t a bad situation, but it’s far better than her parents planning her funeral. A tragic ending to an absurd story was by no means out of the question.

The LIRR 600 Rode into the Valley of Death on the 8:09 (Update x 2)

The New York Times reports that the Railroad Retirement Board, apparently unable to cut off benefits to former Long Island Rail Road workers on disability fast enough when each form had to be stamped by hand, has decided instead to unilaterally cut off workers en masse.

About 600 Long Island Rail Road retirees will lose their disability benefits after a federal agency voted last week to halt the payments, amid a sweeping investigation into what prosecutors have called a major disability fraud scheme, according to agency documents and officials.

The agency, the United States Railroad Retirement Board, which over more than a decade granted disability benefits to hundreds of railroad retirees based on fraudulent medical evidence with little scrutiny, took the action on Thursday during a five-minute meeting at its headquarters in Chicago. The vote approved procedures under which the board will cut off the benefits, which, officials said, are costing the agency $2 million a month.

The only thing shocking is that it took them a whole five minutes to be this arbitrary and capricious. This is the latest in a series of insults perpetrated by the government on disabled workers. It’s been widely accepted that there are workers on disability scamming the system, though aside from the ones who have already been prosecuted, no evidence has been offered to show any individual retiree to have engaged in fraud. Still, it’s become the accepted myth of the story, and who am I to stir up controversy.

But even assuming that some of the 600 are dirty, there is nothing whatsoever to suggest that all of them are. Indeed, having heard from many of them, there is no question that there are people within this group who are most assuredly disabled and fully entitled to the benefits they receive. To which the government says, “who cares? If we just cut ’em all off, the deserving and undeserving alike, we can save a bundle and shift the problem onto the backs of the disabled.”

The government, saving us $2 million a month. What’s not to like? And if they let every poor person in America starve, and deny legal representation to anyone who can’t pay for their own lawyer, they can save even more. Pretty soon, you’re talking real money. And as long as it’s not us who suffers, this is a great victory.

The action taken here could not be more arbitrary. Without any basis to suggest that these individuals (and remember that these are 600 human beings, each of whom has to live, eat, survive) did anything wrong, they just cut them all off and let the chips fall where they may. Who cares who was legitimately disabled? The government doesn’t know and doesn’t care.

But neither, it appears, does anyone else in a position to do anything about this. It seems that this is the culmination of the RRB poking a sleeping giant with a stick to see if it will wake up and fight. Instead, it has just rolled over and played dead. Where is the union? Hiding under its contract, praying that it won’t be tainted by the bad press and entrenched hatred of the LIRR and its workers who have humped commuters for decades with their own nastiness and lack of empathy. Payback is a bitch.

And where are the leaders, the retirees who have the guts to stand up and be heard? <crickets>

This is where an organization must emerge to fight for the rights of the group, to finance and coordinate a fight against the government’s outrageous denial of benefits to everyone because it’s so much easier than doing the hard work of figuring out who is committing fraud and who is legitimately disabled. But no leader has emerged from the retirees, who are interested in their own financial survival but fear making themselves a target for federal prosecutors.

Everything about this action by the Railroad Retirement Board stinks of facile capriciousness, enabled by government prosecutors who have no room in their heads for the legitimately disabled whose lives they are wantonly destroying. And it’s happening without anyone with the guts to life a finger. Not the union. Not the retirees. No one.

To paraphrase, the only thing necessary for the government to arbitrarily terminate the benefits of the LIRR disabled is for good men to do nothing. And it appears that’s exactly what they’re doing.

Update: It appears from an article in Newsday that not only will the 600 retirees whose applications for disability included a medical narrative report by convicted fraudster Dr. Peter Ajemian lose their disability payments, but that the LIRR is also trying to terminate their regular union pensions.

Bear in mind, while Ajemian may have lied on behalf of some retirees, there is nothing to suggest that the 600 who have neither been prosecuted nor individually inestigated weren’t in fact disabled, and there is no doubt that most were disabled as defined by the Railroad Retirement Board. They have been singled out because of their having used Ajemian, who was promoted by the LIRR at the time as the best choice of physician.

Update 2: In a July 3rd memo to LIRR employees, LIRR President Helena Williams disavows Newsday’s report that pensions are in jeopardy.

As reported in local newspapers and on websites, the RRB has taken an action to discontinue disability annuities for 600 retirees who were treated by Dr. Peter Ajemian. Newspaper headlines and articles are not under our control, and we regret any confusion to employees or retirees caused by today’s press coverage.

LIRR has no information about the identity of the 600 retirees affected by the RRB action or whether these retirees engaged in fraudulent activity while employed at the railroad, and LIRR has made no determination regarding their pension status.

Pension forfeiture for those employees found to have engaged in fraudulent or criminal activity while employed at the LIRR is not an automatic procedure and cannot be invoked without following an administrative process and procedure on a case-by-case basis, including, for those represented employees in the closed plan, an appeal process to an independent arbitrator.

Railroad work is physically demanding, and LIRR employees have distinguished themselves time and again with their hard work and dedication in all kinds of weather and under very challenging conditions. LIRR believes that RRB disability annuity is an important benefit that should be reserved for those railroad employees who are truly disabled.

It appears she has a far better grasp of the issues than the RRB or Newsday. Or, for that matter, some of the annuitants involved.

The Way We Were

Remember the good old days, when prosecutorial misconduct was dealt with by just a wink and a wrist slap? No, not last week, but 20 years ago. Truth be told, there wasn’t even a wrist slap back then. And barely a wink. Because of this, the Supreme Court of Oklahoma has decided to apply the rule of lenity to the misconduct of former assistant district attorney Robert Bradley Miller, even though the state bar association would disbar him.

Via Jonathan Turley :

The Oklahoma Supreme Court has rejected a request from the state bar association to disbar Robert Bradley Miller, former assistant district attorney for Oklahoma County, and given him just a suspension from practicing law for 180 days and court costs for egregious misconduct in two capital cases twenty years ago. We have often discussed the lack of deterrence for prosecutors who are rarely disciplined for conduct leading to reversals or false convictions. In this case, the bar wanted Miller out of its ranks for hiding a key deal with a witness and using falsified subpoenas to coerce cooperation from other witnesses.

And what caused them to pare down disbarment to 180 days (plus court costs. Don’t forget about the court costs.)?

The novel defense — accepted by the state Supreme Court — was that lots of prosecutors acted abusively back then.

Well, not exactly the defense, but the argument in mitigation of punishment. It’s not that it wasn’t wrong for a prosecutor to lie, cheat and steal his way to convictions, even in capital cases, but that it just wasn’t such a big deal 20 years ago.

Hindsight is 20-20. Instances of prosecutorial misconduct from previous decades, such as withholding evidence, were often met with nothing more than a reprimand or a short suspension.40 Some scholars writing during that time theorized that discipline was imposed so rarely and so lightly that it was not effective in deterring misconduct. Reprehensible though Miller’s conduct may have been, and even if such misconduct is punished more harsly [sic] when it occurs now, Miller’s actions took place decades ago and it would be unfair to hold him to a harsher standard than he would have been subjected to when his actions took place.

Hindsight is what courts do. It’s the only thing courts do, in fact. And they’re awfully good at it when the target of their scrutiny is the conduct of a criminal defendant. Yet, I can’t remember a single decision using such a trite phrase to excuse a criminal defendant for his trespasses. Funny how that changes when the question is how to punish a prosecutor.

Yet, the rationale of the court is one of lenity, that the nature of punishment for a wrong ought to be considered in the context of the time. While this is truly a sad commentary of the time, when judges didn’t get too bent out of shape by egregious misconduct as long as the judge was satisfied with the outcome (hey, he was guilty anyway, right?), the argument of lenity isn’t entirely wrong.

The problem here, however, is that it has been misapplied.

Make no mistake, if this conduct were to happen today, the punishment would have been much more severe. This is not to say that the Court condones his conduct, merely that we are not inclined to apply the harsher standards of today to conduct that occurred at a time when it was punished lightly, if at all.

Really? Would the punishment really have been much more severe, because if that’s the case, where are you hiding the bodies?

The decision suggests that prosecutorial misconduct was somehow shrugged off way back when, but offers nothing to support this facile assertion. The same rhetoric about misconduct was used then as it’s used now, with pretty much the same results. Indeed, imagine a court 20 years from now citing to this decision as a justification for not disbarring a prosecutor who concealed exculpatory evidence today, but was only revealed to be scum 20 years from now. See how that works?

For a brief, glorious moment during the Warren Court, there was an effort made to level the playing field, and as part of their effort, there was law the required the prosecution to play fair. The 1963 Brady decision, despite the glaring holes that haunt us today, includes all the right rhetoric about how concealment by the prosecution undermines the integrity of the legal system. So if it was bad enough in 1963 to warrant the Supreme Court’s creation of a constitutional mandate of disclosure, it wasn’t bad enough back then to compel a little more than a hand-smack?

That’s not how I remember the glory days.

But then, it was 20 years ago. It’s not like a defendant convicted due to prosecutorial misconduct would have to spend those 20 years in prison for what Robert Bradley Miller did, making the price his victims paid 40 times greater, at a minimum, than the very stern words of the court plus a six month vacation. Oh wait.

Gideon’s Army, The Review

Dawn Porter sought to tell the story of public defenders. Not all, not the ones who gave up caring, but the story of three PDs in the deep south, Clayton County, Georgia, who struggled to hold on their purpose and integrity in the face of their reality. They are Gideon’s Army,

The film, a Sundance Film Festival award winner for documentary editing, offered a strikingly honest vision of the world of the public defender. Premiering on HBO last night*, it follows three PDs through their banal existence in the trenches.

Brandy Alexander, Travis Williams and June Hardwick have dedicated themselves to defending those who otherwise would not receive representation, contending with a day-to-day life of low pay, long hours and staggering caseloads. Despite these obstacles, with the help of the Southern Public Defender Training Center (SPDTC), these young professionals are inspired to take on this unique challenge in the name of public service.

This synopsis strikes me as, frankly, far more rosy and uplifting than the film itself. In trying to provide honest insight into the misery of a Georgia public defender, Porter doesn’t sugar coat the nature of criminal defense, including Brandy’s halting description of a defendant who raped his step daughter being not merely unapologetic, but proud of himself. And another client, rumored to be ready to murder her in the courtroom if she doesn’t win his trial.

The point, that some defendants are just truly bad people, hits home. At the same time, Porter gives this away with the apparent understanding that those who find the function of the public defender to be a bump in the road of justice will view these concessions as a reason to do away with them as an exercise in futility rather than see the nobility of defending the guilty as well as the innocent.

Travis is cut into the scene at the end of Brandy’s emotional appeal to bring that point home. Where Brandy waivers in her desire to stand beside the guilty in a moment of weakness, Travis is the rock who affirms that they don’t do it because they “like” the defendant or his crime, but because their duty is to defend, and that means the guilty as well as the innocent.

Some of the most poignant moments in the film bear upon the banal hardships borne by public defenders. That after paying off the debt service on their law school loans (no trust fund babies here) and their basic shelter needs, they are left with a pittance in their pocket. They massage the hose from the gasoline pump in the hope to get out a few extra drops so they will have enough gas to last them an extra ride.

The film wasn’t without its issues. The three PDs whose stories were told were imperfect, yet noble. There were no hacks, no incompetents, mailing it in at the expense of their duty. While reference was made to prior representation where a defendant’s public defender failed them, it was merely passing.

While the caseload carried by the trio was huge, it was still significantly less than some of the more absurd case loads carried in other public defender offices, where 500 felonies might be the norm. Travis carried 150 cases, which might cause a gasp given how the defendants were shown as human beings, worthy of the personal concern of the PDs. Yet, it left unanswered how a public defender with three time, may be more, the caseload could conceivably know their names, no less their cases.

The truncated arguments from the courtrooms were reminiscent of a Law and Order episode, long on platitudes and short on the nuts and bolts a lawyer goes through to persuade a jury not to convict. While it’s understandable that time precludes the film from showing everything, these edits make the unsophisticated viewer think that it’s all grandiloquence rather than grueling work in the face of unpleasant facts.

Then there is Jonathan Rapping, playing a critical role as guru of the Southern Public Defender Training Center, renamed Gideon’s Promise for that extra tug on the heartstrings (and purse strings). He provides the support and mentorship to keep these PDs inspired, to persist in the fight when they’re on the cusp of walking away. But there is a juxtaposition, which may be intentional, of Jon, a white guy, with the three public defenders, all black, which struck me as troubling. The public defenders struggle through poverty, overwork, the disdain and lack of appreciation of society and their clients, while the Great White Hope inspires them to continue to pull the plow.

While this is a documentary, and thus beyond the realm of a sound stage where the actors can be dressed in whatever color clothing suits the producers, is it meant to suggest that even the black lawyers for the poor are still working the fields, while their white inspiration plans cocktail parties on D.C. rooftops when he’s not cajoling them to keep working?

The penultimate scene of the film has Travis’ client forced into a plea by his lifelong best friend flipping on him, taking a triable case and turning it into certain defeat. To add insult to injury, a decent plea deal is cut, and the young defendant naively whispers to his lawyer moments before sentencing, “can I get probation?” Facing five years rather than ten, Travis argues for two years served, while the judge sucks the air out of the room by imposing the full five. Every criminal defense lawyer knows how that punch feels.

But the final scene is the Cinderella story, the trial of a defendant Brandy believes to be innocent. The trial that could go either way. The trial that could break her heart if she loses and fails a defendant, 16 at the time of the crime, who she argues was not the guy. She has facts to argue misidentification, but the eyewitness says 100%.

The jury returns a verdict. Not guilty. All counts. The defendant walks out of court and hugs his mother. It happens, but not often enough to leave the viewer with the belief that there is hope and justice in this system.

Gideon’s Army is a film of confirmation bias, where one will see in it what one wants to see. Whether it’s the inspiration or the misery, the nobility of defense or the futility. But it tells the story from a side that few ever see, the view of the public defender in the trenches, and it brings a critical perspective that’s missing from almost every story of criminal defense and defendants. It’s mostly an ugly story, because it’s mostly an ugly job. But these three do it because they are the foot soldiers in Gideon’s Army.

* I was kindly provided with access to a screening copy for this review.

A Cop Left The Bar Loaded

It’s been more than two years since Nassau County Police Officer Anthony DiLeonardo put two bullets into Huntington, New York, cabbie Thomas Moroughan, and he, together with his drinking buddy and fellow cop, Edward Bienz, are still on the job. The fact that anybody would even think about them outrages Nassau County PBA president James Carver, who

will seek “the strictest of sanctions” against whoever allowed a confidential Nassau police Internal Affairs report detailing an off-duty cop’s shooting of an unarmed cabdriver to remain in a federal court file.

“This is egregious,” he said in an interview. “How do you undo something that’s already been out there? This is something we take very seriously.”

What’s not egregious is what DiLeonardo did, or how Nassau County and Suffolk County cops covered it up. Because, you know, that’s what brothers do for their own. Via Newsday :

On Feb. 27, 2011, according to a confidential Nassau County police internal affairs report obtained by Newsday, Officer Anthony DiLeonardo, off duty and drunk, shot at cabdriver Thomas Moroughan five times, hitting him twice, then beat the man with the butt of his gun. DiLeonardo had been barhopping in Huntington with his girlfriend, fellow Officer Edward Bienz and Bienz’s wife. Moroughan, who was driving a Prius cab with his girlfriend in the passenger seat, had gotten into a roadside verbal dispute with DiLeonardo.

The cop was loaded. The gun was loaded. It was a bad mix.

DiLeonardo’s explanation for firing at Moroughan, which his companions backed up, was that he feared for his life because the cabbie revved his engine, then tried to run him down.

Priuses are great cars, but there is one thing you can’t do in a Prius. Rev the engine.

Within 12 hours of the shooting, Nassau County’s Deadly Force Response Team cleared DiLeonardo of wrongdoing and said he and Bienz had been “fit for duty,” not mentioning that they were intoxicated

Perhaps being intoxicated doesn’t impact fitness for duty in Nassau County? If so, that would have to go for Suffolk County cops too, as this happened in their neighborhood. But it’s not that the Suffolk cops had a lot of time on their hands to investigate, as they immediately went after the perp to get a confession.

Nor has any action been taken against the Suffolk County police officers that night who allegedly fabricated a confession and got a hospitalized Moroughan — drugged with morphine and carrying two bullets in his body — to sign it

Blue must be true, and all that. But Moroughan had one bit of luck, his “highly regarded godmother, Suffolk Police Department Deputy Commissioner Risco Mention-Lewis, who agrees he was denied an attorney and railroaded into a confession of crimes he did not commit, had to have helped spur a response to his allegations.” The charges against Moroughan (come on, you knew he had to be charged with revving the Prius’ engine in DiLeonardo’s direction, right?) were dropped, but he decided not to testify against the guy who pumped two bullets into his body.

As all of this was revealed by Newsday. It gave rise to an editorial asking why “DiLeonardo and Bienz still wearing badges” and why nothing has been done with any of the cops, Nassau or Suffolk, who were part of the conspiracy to cover up DiLeonardo’s shooting of Moroughan.

And the culture of the cops must change. Protecting each other from the truth and its consequences is not noble. It’s a dereliction of duty.

To say the least. But part of the answer to Newsday’s questions can be found in the opening and closing sentences of its own editorial, which is delightfully known as the “required police caveat.” It begins:

Police officials and union representatives often say the bad apples are a tiny percentage of any force, and they’re right: The majority of cops are good people trying to do a tough job honorably.

And it ends:

Most police officers are good, it’s true. But no law, custom or culture ought to protect the ones who aren’t.

So the myth survives, even in a case where everything screams that it’s a lie. A few bad apples don’t give rise to a culture that protects loaded cops. Most police officers tell lies, and while they may well be “good people trying to do a tough job honorably” some of the time, it’s the times when they don’t, when they shoot people, when they lie about it, when they cover it up, that compels me to wonder why Newsday remains complicit in perpetuating this diseased culture and the caveat that enables the myth to survive.

Complete Good Faith

“The special agents acted in complete good faith,” Mr. Mulham said, “with the purpose of pursuing appropriate law enforcement interests.”

Of course, what Charles J. Mulham, spokesman for the Bureau of Alcohol, Tobacco, Firearms and Explosives, was talking about was cops and agents lying to United States District Court Judge Alvin Hellerstein in order to get the bad guy while protecting the identity of a snitch. It’s not that they didn’t fabricate a story to get the job done, but they did get the bad guy, and isn’t that all that really counts?

From the New York Times, a garden variety gun possession case in uptown Manhattan, which was being prosecuted in federal court because they have so little else to do and Article III judges need to spend their days on routine “felon in possession” gun cases, ended up “a flash point over legal ethics and a sharp dispute between a judge and federal prosecutors.”

“A decision was made to coordinate among all the witnesses not to tell the full truth,” the judge said after he heard testimony from the arresting officers and from federal agents who helped to prepare a complaint against the man who was stopped, Tajuan Simmons, or who later testified before a grand jury.
Prosecutors in the office of Preet Bharara, the United States attorney in Manhattan, strongly defended the officers’ testimony as truthful and accurate; they asked the judge to withdraw his findings, citing the potential damage to the officers’ careers. The judge refused.

Just at the start of the story, and already too many ironies to ignore. First, that there was hanky panky at all came out because an AUSA spilled the beans:

Last fall, before the suppression hearing began, a prosecutor told the judge that the government had informed the defense about some recently discovered “misstatements” in the complaint.

We might scoff at the word “misstatements,” since they would be more likely characterized as bold-faced, disgraceful, outrageous lies, if they came from a non-LEO’s mouth or hand, but that’s just a matter of rhetoric. Had the assistant said nothing, the lie would have gone completely unnoticed. And yet the same office, if not the same assistant, argued with a straight face that “misstatements” magically turned “truthful and accurate” when it came time to salvage these fine law enforcers’ careers. After all, why ruin a fine career by calling a cop a liar just because he’s, well, a liar?

The details underlying this scheme are remarkably understandable. The call came in from a Confidential Informant, a rat busted for drugs who was flipped to save his own skin. He was told to stop committing crimes, but he didn’t. Bad boy, he was told, but that didn’t stop him from giving people up or the cops from working him.

The sergeant testified that he received the informant’s call around 11 p.m. on April 17, 2012, and after hearing his information, told him to dial a police hot line that offers callers anonymity and financial compensation for information about illegal guns; a hot line detective then called the 911 operator.
Two days later, when the complaint was sworn before a magistrate judge, it omitted any mention of the informant and said merely that “an anonymous individual had placed a 911 call” with the information about Mr. Simmons. Sergeant Nicholson said he had taken this step to protect the source.

It’s not that they cared whether the snitch lived or died per se, but they weren’t done squeezing him yet, and he still had plenty of juice. Once the CI gave up all he had, well, then his protection isn’t nearly as much of a concern. But I digress.

The complaint had also stated that Mr. Simmons, when he saw the police, immediately began to run to the north. “He did not run,” the prosecutor said.
Finally, Officer Matthew Barber, who had seized the gun and arrested Mr. Simmons, now recalled that he saw “a bulge” in Mr. Simmons’s waistband — a detail that had not been in the complaint.

Except none of this happened, and it was all part of a scheme to justify the arrest while omitting the snitch’s involvement. Not a big scheme. Not a sophisticated scheme to nail either a major bad dude or some innocent who made them angry. Just a banal scheme so that the CI wouldn’t be involved. And what was the big deal, since Simmons really had the gun? No harm, no foul.

Asked by the judge whether that was a practice of his office, the agent responded that if there was other evidence that established probable cause for an arrest, and “you do not have to risk the safety of an informant by exposing them, then you try to do that if possible.” (The identity of the agent is being withheld at the A.T.F.’s request because he remains involved in undercover work.)
Judge Hellerstein said the agent was “shading the truth” in not telling the magistrate judge about the informant.
The agent responded, “It’s a safety concern.”

Judge Hellerstein called it “nonsense,” “not credible,” “false” and “not worthy of belief.” So…

Nonetheless, he ultimately refused to suppress the gun, finding that the informant’s tip had been accurate. Mr. Simmons pleaded guilty to a conspiracy count, and in March he was sentenced to five years in prison, the maximum.

Didn’t I tell you the guy actually had the gun? Just because the witnesses for the government at the suppression hearing lied through their teeth about everything along the way to everyone they could, and the government backed them up despite having been the party to reveal to the judge that he had been reduced to a pawn in their scheme to excise the snitch from the case while still getting Simmons, that would never serve as a reason not to get the bad guy.

Because, as the cops say, the agents say and the judge found, no matter how many lies or scams law enforcement has as the means to get to the end, it’s all in complete good faith.

Money 101

Last week, a new lawyer asked my advice on a business question. I responded with a simple equation:

revenues – expenses = profit

Obvious as this may be, it seems to elude a great many people, particularly young lawyers who fail to connect the cost of the crap they spend money on to the purpose of a business. “But, but, but,” he stuttered, “don’t we practice law to serve clients?” Of course we do. That’s the reason why we’ve chosen to be lawyers. But the reason we go to work in the morning is to make money. Otherwise, we would practice law without charging anyone a fee.

There are fundamental rules of life that every person, including every young lawyer, needs to know. They range from “never eat anything bigger than your head” to “never face down 7 mean hombres when all you’re packing is a six-shooter.” Seth Godin offers a list that covers the rules of money, and it’s mandatory that every semi-conscious person know and understand them.

The amount of money you have has nothing to do with whether or not you’re a good person. Being good with money is a little like being good with cards. People who are good at playing cards aren’t better or worse than anyone else, they’re just better at playing crazy eights.
Money spent on one thing is still the same as money spent on something else. A $500 needless fee on a million-dollar mortgage closing is just as much money as a $500 tip at McDonalds.
If you borrow money to make money, you’ve done something magical. On the other hand, if you go into debt to pay your bills or buy something you want but don’t need, you’ve done something stupid. Stupid and short-sighted and ultimately life-changing for the worse.
To go along with #3: getting out of debt as fast as you possibly can is the smartest thing you can do with your money. If you need proof to confirm this, ask anyone with money to show you the math. Hint: credit card companies make more profit than just about any other companies in the world.
There’s no difference (in terms of the money you have) between spending money and not earning money, no difference between not-spending money and getting a raise (actually, because of taxes, you’re even better off not-spending). If you’ve got cable TV and a cell phone, you’re spending $4,000 a year. $6,000 before taxes.
If money is an emotional issue for you, you’ve just put your finger on a big part of the problem. No one who is good at building houses has an emotional problem with hammers. Place your emotional problems where they belong, and focus on seeing money as a tool.
Like many important, professional endeavors, money has its own vocabulary. It won’t take you long to learn what opportunity cost, investment, debt, leverage, basis points and sunk costs mean, but it’ll be worth your time.
Never sign a contract or make an investment that you don’t understand at least as well as the person on the other side of the transaction.
If you’ve got a job, a steady day job, now’s the time to figure out a way to earn extra income in your spare time. Freelancing, selling items on Etsy, building a side business–two hundred extra dollars every week for the next twenty years can create peace of mind for a lifetime.
The chances that a small-time investor will get lucky by timing the stock market or with other opaque investments are slim, fat and none.
The way you feel about giving money to good causes has a lot to do with the way you feel about money.
Don’t get caught confusing money with security. There are lots of ways to build a life that’s more secure, starting with the stories you tell yourself, the people you surround yourself with and the cost of living you embrace. Money is one way to feel more secure, but money alone won’t deliver this.
Rich guys busted for insider trading weren’t risking everything to make more money for the security that money can bring. In fact, the very opposite is starkly shown here. The insatiable need for more money is directly (and ironically) related to not being clear about what will ultimately bring security. Like many on this path, now they have neither money nor security.
In our culture, making more money feels like winning, and winning feels like the point.
Within very wide bands, more money doesn’t make people happier. Learning how to think about money, though, usually does.
In the long run, doing work that’s important leads to more happiness than doing work that’s merely profitable.

Some are more fundamental than others. Some could benefit from a bit of fleshing out. But some points on this list, most notably Number 2, are utterly foundational and yet almost universally ignored. That shiny iToy you simply had to have so all the other kids at Starbucks will think you are the coolest person ever, and for which you ran up your credit card debt, will be the reason you can’t save enough money to buy a home for your family. Do you see how it works?

Once you’ve worked hard enough, saved enough, delayed your gratification and used your money wisely, you may find yourself in a position to buy the goofy things that make you happy. It may take years. It may never happen. But it will most assuredly never happen if you spend more than you earn, squander your efforts for trinkets, are incapable of distinguishing things you need from things you want, or refuse to substitute the hard work of thinking for handing over what little money you have to some fast-talking schemer who plays you for a fool.

Your life. Your choice. But these are the rules by which we live.

Readers Mailbag, Volume 27

Since I haven’t done a reader mailbag in a while, it seemed like a good idea today.

Greenfield:
I know law real good, having done prison three times. So when I hired this lawyer, all he had to do is go with the story I told him. It was perfect. I told him about how I was innocent and how the cops beat me and lied and framed me, and all he had to do was tell the judge exactly what I told him.
But no. This guy started talking shit about perjury and all. Why did he think I was paying him all that money if he didn’t have a guy who would fix a few photos so my story worked? His website said he would fight hard and cared about me, but all he did was tell me that my story sucked and he wouldn’t do it. What kind of lawyer is that? He thought I was stupid and didn’t know what I was doing, but like I told you, I been to prison three times and I know how to get things done. I got the tats to prove it.
You seem to be a good lawyer and you have an Avvo 10, so you know what I’m talking about. Can you represent me pro bono? We can sue this lawyer and you can keep half the money. If you’re any good, you will get rich! And when you come to Idaho to take care of my case, I promise to take you out for lunch too, as long as you don’t eat too much. LOL.
Signed,
The Voice of Experience
Dear Voice,
Such a wonderfully tempting offer, and yet I must decline. I’m curious that you think three stints in prison makes you quite the expert on beating the system. It sounds more like you have a remarkable history of losing, which tells me that you may not be nearly as good at putting together a story as you think.
Regardless, the lawyer who refused to become complicit in perpetrating a fraud on the court by manufacturing evidence isn’t a bad fellow, even though he apparently did not think as well of your scheme as you did. You see, criminal defense lawyers are the people who represent people accused of crimes, as opposed to being criminals themselves. The truth is, you didn’t pay the lawyer to do your bidding, but to represent you, zealously but within the bounds of the law. I know, that sucks, especially when you think you’ve put together a masterful scheme to prove your innocence in the face of overwhelming evidence of guilt.
In the future, may I suggest you consider urinating only in toilets in rooms specifically marked for your gender? It’s really a very good rule to follow, plus eliminates the need for photos, which itself can present a bit of an issue.
SHG

If anybody out there wants to take on Voice’s cause, let me know and I can forward your contact information. You will no doubt hear from him, perhaps for years to come.

Hello,
I am the marketing representative for John W. Blischak who is a Defense Attorney. I’ve taken a look at your website and noticed you have several articles pertaining to felony offenses and misdemeanor. I believe we can contribute a guest blog about evaluating possible criminal defense options and assessing if further legal assistance is needed.
John W. Blischak is based in Arizona serving several cities throughout the Valley. He practices criminal defense matters, personal injury and some business law as he also is a CPA. With over 25 years of experience in the law field, John would love the opportunity to share his knowledge on these topics with your readers.
The opportunity to guest post about criminal defense tips and how The Law Offices of John W. Blischak can assist would be an excellent opportunity and greatly appreciated. Let me know if you’d be interested or if you need any further information. Please feel free to contact me at this email or give me a call at 623.889.XXXX ext. 000. I hope to hear from you. Thank you for your time.
Best,
Phillip J. [x]
Marketing Representative for The Law Offices of John W. Blischak

Dear Phillip,
You are a true gem. Most marketing representatives lack your forthright nature, shifting the work off to some mill in Bangalore after pocketing the hungry lawyer’s cash. Not you. I hope your client appreciates that you are doing the legwork yourself with such a well-targeted and thoughtful email.
Usually, I don’t respond to requests for guest posts, but that’s because they tend not to involve lawyers or don’t mention who the client is. That’s what made your email special, and made me take notice. Here you are, floating John Blischak’s name to blawgers like me across the internet in the hope that someone will give you a chance to guest post and get that precious backlink. There’s no quicker path to legitimacy than riding someone else’s coattails, right?
As for your suggested topic, however, “evaluating possible criminal defense options and assessing if further legal assistance is needed,” it strikes me that you haven’t really looked at my blawg, because if you did, you would notice that a post on your suggested topic doesn’t really fall within the nature of stuff I write about. In fact, it emits a rather unpleasant odor, kind of sleazy and worthless.
It makes me wonder whether John Blischak will be writing the guest post, or maybe someone from your outfit, . You do that sort of stuff, , don’t you? Maybe when you wrote that Blischak would be the author of the guest post, you were stretching the truth just a bit. Come on now, Phillip, just a little bit? Yeah, I knew it.
But poor John Blischak, by hiring you, now has his name all over the internet, thinking that he’s going to build a great internet persona and get tons of business from his first-page-of-Google website, except that’s not how it always happens for lawyers. Instead, sometimes they get embarrassed when they outsource their marketing and learn the hard way that they outsourced their reputation and ethics with it. Not all lawyers, Phillip, are cool with being part of the scheme.
That sucks, Phillip. But then, it’s not your fault Blischak hired you to do his marketing for him. It’s his.
Scott
P.S. If you do posts about ponies, I may know someone who would be interested in a guest post.

For all I know, John Blischak is a great guy, a terrific lawyer and kind to small animals. Even so, the Turk Rule still applies.