In a folksy op-ed in the Daily News, New York County District Attorney Cyrus Vance, Jr., bemoans how his heart is breaking.  There are headlines to be had, and he’s not getting them. Where’s the love? Where’s the appreciation? How will he ever be more than the guy Morgenthau picked so that Leslie Snyder never gets the job?

In recent months, the politics sections of New York papers have read more like Hollywood screenplays: elected officials wearing secret wires, scheming to bribe their way onto their ballot, engaging in shady business dealings.

It’s hard not to notice that virtually all these alleged crimes have been prosecuted in federal, not state courts, and by U.S. attorneys, not district attorneys.

It is hard, Cy. All these great crimes happening in the cesspool that is New York City politics and you, poor Cy, left out in the cold.  No headlines. No interviews. No fawning admiration of hot young official corruption groupies.

But then, it’s not like these nasty politicians aren’t being caught, aren’t being prosecuted. They are. And they are investigated and prosecuted by an entity from a jurisdiction without inherent conflicts, who won’t suffer from the unintended consequences of relying on the colleagues of your targets, maybe even the targets themselves, for funding or changes to law.

Cy wants to change this. He’s got ideas that will put him in the thick of things, and more importantly, in the headlines.

To strengthen New York’s weak state corruption and procedure laws, Gov. Cuomo has proposed the Public Trust Act. It’s a much-needed first step to give local prosecutors the right tools to crack down on public corruption.

For one thing, it finally gives teeth to New York’s public bribery laws, which unlike our other bribery statutes — sports, commercial and labor — require either a mutual agreement between the parties or that the person giving the bribe believes that the public servant will be influenced by a bribe offer.

Under the governor’s proposal, the offer of a bribe could be treated as seriously as the completion of a bribe.

Do we really want it to be harder to prove a case against a crooked politician than a boxer?

Well, that’s a tough question when you ask it that way, but it’s not nearly as tough when the question isn’t so loaded. After all, they aren’t “crooked politicians” is they didn’t commit a crime, and since it’s not a crime, they’re kinda just ordinary politicians who you think ought to be called crooked.

But the core of the problem makes the question far harder. Politicians survive on campaign contributions. It is a terrible idea, but that’s the way our society handles elections. We simultaneously demand these guys run for office all the time, and it takes buckaroos to buy air time and print up four color brochures. Anyone who wants to win an election, even incumbents, needs money to do so, and they have to get that money from somewhere.

Sure, their friends and family give some up, but that’s not enough to pay for dry cleaning. No, they depend on the only people who give a damn whether they’re elected or not, the people who can benefit from their holding office. And so they pander, smile and kiss the delightful butts of the very people who want something from them.  It sucks. It looks awful. But it doesn’t make them crooked unless there is a quid pro quo for the cash.  For the record, boxers don’t need to be elected.

While a change in the law might well snag some bad dudes (and dudettes), it will also snag a whole bunch of people trying hard to get elected and doing nothing any more wrong than anybody else. It would give you the ability to make a case against them, except they wouldn’t be criminals.  Just politicians doing what they have to do in the normal scheme of politics. And it would put it into your hands to decide whether to go after them anyway.

With all that power, people in Albany would shake when you walked up to them to ask for a little more funding, a new law every now and then. They would quiver. They would always take your phone calls, Cy, because you would have the power to destroy their careers, if not their lives. That’s a lot of power, Cy. Almost as much as Morgenthau.

The bill also would end New York’s unseemly practice of giving a complete transactional immunity “bath” to witnesses who appear before grand juries in cases of misconduct in public office and government fraud. This would give state prosecutors a tool that our counterparts in other states and the federal government have had for decades — though narrowly tailored to apply only to the problem at hand.

Unseemly, Cy? This core tradition of New York criminal law, that’s been with us since the beginning, and to which New York, a state that professes a belief in the Constitution that surpasses that of some of those southern states where cousins regularly marry.  Do you want cousins to marry, Cy? When that happens, it completely screws up DNA identification, as everybody’s starts to look alike.

When a witness is compelled to appear before the grand jury in New York, they receive transaction immunity, not just use immunity as the feds enjoy.  Your “bath” is New York’s constitutional protection, Cy. You can’t make your case without forcing people into the Star Chamber? There is no due process in the grand jury, as our great (if somewhat sad) former Chief Judge explained when it comes to Criminal Possession of a Ham Sandwich in the First Degree.  And you want to turn New York into some backwater, giving away our heritage for a quick headline, Cy. How sad.

And, recognizing the seriousness of fraud against the public, the act also creates the crime of “corrupting the government,” which would apply to ongoing schemes to defraud the state or local government, regardless of whether the perpetrator is a public servant.

These provisions are a great way to get change rolling at a time when New Yorkers are rightfully demanding more vigorous oversight of elected officials.

Pondering what must be an epidemic of regular citizens “corrupting the government,” since it demands a new law to prevent it, it’s hard to imagine who these people are that they are responsible for taking the pristine public servants of Albany’s chambers and turning them into crooks.  If this is happening at such a significant pace that a new crime is needed, then they must be incredibly powerful people to take the fine politicians of the Empire State and twist them into corrupt pretzels.  No wonder New Yorkers are “rightfully demanding” more vigorous oversight of elected officials.

But you, Cy, are an elected official too.  And oversight is certainly a good thing, but you aren’t asking for oversight. You are asking for new crimes and the end of historic protections. Are New Yorkers “rightfully demanding” that?

Some are, Cy.  And if you think yourself worthy of the vast power such changes will put into your hands, the power to make Senators and Legislators bow to you and fear your watchful eye, you can prove it by cleaning your own house first, Cy.  There’s that unconstitutional stop and frisk thing you’ve been ignoring. Or the Brady thing. Or covering up for bad cops thing. You can stop it with a snap of your fingers right now.

New Yorkers are rightfully demanding it.  Don’t disappoint them, Cy.



See? Already you’re name is showing up on the boob tube. Imagine what would happen if you cleaned up your own mess.

My fellow curmudgeon, Mark Herrmann, offers another fundamental concept worth noting in his Above the Law post, On Tweedledee And Tweedledum, Esq. Plus, who doesn’t love a Lewis Carrol reference?

Remember the old joke about the father and son playing golf in Montana, where they’re told by the ranger that if they see a grizzly bear, don’t run away as the bear can run far faster than they can?  So when they happen upon the bear on the 7th hole, the son bolts. The father yells at him, “Son, the ranger told us not to run because you can’t run faster than the bear.”  The son responds, “I know, Dad, but I don’t have to run faster than the bear. I just have to run faster than you.”

Welcome to who’s the better lawyer.

After the Tweeds have been practicing law for a few decades, each having “puked his puke of a life away here, I tell you,” the Tweeds both have pretty fine track records. They both have long lists of cases they’ve won. If they’ve been practicing for 25 years, ineptly handling two cases each year and — arithmetic being what it is, and all — winning half of them, then the Tweeds can each boast of having won 25 cases during the course of an illustrious career. These guys must be good! How else could they have had such success?

What of the fact that “he’s won an awful lot of cases for us in the past”? Bad lawyers win their share of cases — so anyone will win some cases for us. But better lawyers win more than their share of cases. And we don’t have a control universe here: Perhaps Tweedlewhoever did not spot a critical issue back in 2002, so we never filed a winning summary judgment motion in that case. I understand that we may have settled on the cheap, but perhaps we should have gotten out on motion.

When Tweedlewhoever tells us that he did a great job preparing a witness, how do we know it to be true? The in-house lawyer may not have attended the prep session; even if she did, she surely didn’t read all of the e-mails and documents and figure out what a great prep session would have looked like. Tweed tells us that he did fine work; why should we believe him?

The guy is no good, and he doesn’t even know that he’s no good. (Or, as I’ve quoted more elegantly before, “he knows not and knows not he knows not.”) We should shun him.

It may have been  too easy to glom off Kris Kristofferson’s Me and Bobby Magee, but  there  were  plenty who cried that  Salinas v. Texas was the death knell of the right to remain silent.  I hate to be contrary, but while Salinas did great harm, never underestimate the potential for things to get worse. Much, much worse. 

At PrawfsBlawg, Stanford law’s  Will Baude takes up where Clarence Thomas’ concurrence, with some Nino love thrown in, leaves off.

Earlier this week, I mentioned as an aside that I appreciated Justice Thomas’s call to overrule Griffin v. California (which forbids judicial and prosecutorial comment on a defendant’s exercise of his right not to testify).  I don’t have anything terribly profound to say about why, but since that view seemed to surprise and displease some people, I thought I’d say more about my thinking.

First, Griffin is probably wrong.  As Justices Thomas and Scalia discuss in their separate dissents in Mitchell v. United States, there’s little reason to believe that the no-commenting-on-defendants’-silence rule has a historical basis, nor is it a straightforward reading of the text of the Fifth Amendment.  

You read that right, that Baude contends that the Constitution should not prohibit the prosecutor from commenting on the defendant’s failure to testify. He goes on:

Second, the system would probably be more legitimate– and might even be more accurate– if defendants testified more.  The current incentives are rigged to discourage defendants from testifying– even defendants who have something they’d like to say.  Nobody can comment on the defendants’ failure to testify, and if the defendant does testify, prior convictions or other damaging impeachment evidence can come in. (See.)  Ideally, I’d scrap the Griffin rule and the use of prior convictions for impeachment as a package, but even scrapping one or the other would be an improvement.

While insulating defendants from cross for prior convictions and impeachment in order to enable more defendants to testify offers an element of balance, it’s not the only reason why defendants don’t testify. Indeed, it’s not the primary reason.

Defendants suck at testifying. They aren’t schooled in the art, like cops, and they aren’t usually selected for prosecution because of their intelligence or public speaking abilities. They may be a bomb waiting to explode, or so easily confused and manipulated as to be a disaster on cross. No amount of prep can change a lifetime of stupidity or bad attitude. But that doesn’t make them guilty, just horrible witnesses.

Others don’t speak English well, and use of a translator has myriad problems. Still others suffer from mental illness or intellectual limitations. And some use drugs, despite our best efforts to persuade them otherwise, and there is nothing uglier than a junkie on the stand an hour past his fix.

Even the smart ones, the well-educated white collar guys, without negative priors but a laundry list of charitable acts, blow it on the stand. They tend not to like to be cornered by lawyers, and react poorly when not treated with the respect they think they’re due. And juries don’t like it when they spit back at questions. In fact, they hate it, and hate them for doing it. And yet they do it all the time.

But Baude has more:

Third, I don’t think it makes much sense for the Constitution to regulate most of [what] prosecutors say during opening and closing argument.  Criminal cases are full of litigation about various kinds of improper comments and prosecutorial misconduct for the things prosecutors tell the jury, and the whole enterprise strikes me as misguided (with the exception of statements that describe inadmissible evidence).  The prosecutor’s comments are not the law.  The defense attorney can disagree with them.

This is where he demonstrates that he is utterly, insufferably clueless about trial. Even as it now stands, with prosecutors prohibited from commenting on the defendant’s failure to testify and judges instructing the jury that they may draw no negative inference,  there is no jury that isn’t influenced by the defendant’s failure to testify.  None. Ever. The only question is whether the defense can surmount this overwhelming bias.

But Baude is dead wrong when he asserts that the defense attorney can disagree with the prosecutor’s argument that the failure to testify is due to guilt. Try a case, Will, and see what happens.

The prosecutor’s argument is easy.

The defendant had the right to testify, to tell you, ladies and gentlemen of the jury, that he didn’t do it. He chose not to. What does that tell you?

And what does the defense lawyer say in response? That the defendant has a constitutional right not to testify? Oh yeah, that’s persuasive. He can’t argue that the defendant would make a miserable witness, is too dumb or argumentative, has a lousy attitude, needs a fix? 

There is no evidence in the record, nor could there be, as to what legitimate reasons could motivate a defendant to not testify. The defense can’t argue evidence that doesn’t exist. He’s screwed.

Griffin is such a fundamentally critical protection of the defendant’s Fifth Amendment right that it would be unthinkable, inconceivable, to try a case without it. If the failure to testify, not merely to answer questions, could be used against the defendant, he would be absolutely compelled to testify no matter what problems that would cause, because the failure to do so would be a guarantee of conviction. The jury bias would be overwhelming, and anyone who thinks otherwise is dead wrong.

So the end of Griffin would create the law’s version of Heller’s Catch-22, failure to testify assuring conviction and testifying being a likely disaster. Of course, given that the current state of affairs is so incredibly favorable to defendants, with a 97% conviction rate, why not argue for the death of Griffin to level the playing field and make sure that no one walks away?  Never forget that things can always get worse, and Baude’s contention would clearly take us deep into Griffin-22 territory.

It seemed like such a great idea to the nice folks who rushed to embrace the future of law.  They gave it a really cool name, “experiential learning,” and made a big announcement about how third year students at Washington & Lee were going to hit the ground running. It was supposed to show the stodgy legal Academy how it would change everything.

But it didn’t. Via Paul Caron at Tax Prof Blog, Deborah Jones Merritt ponders the employment puzzle :

Pedagogically and professionally, it makes sense for law schools to teach practical skills along with theory and doctrine.

Employers say they are eager to hire these better-trained, more rounded, more “practice ready” lawyers–and they should be. That’s why the employment results for Washington & Lee’s School of Law are so troubling. Washington & Lee pioneered an experiential third-year program that has won accolades from many observers. Bill Henderson called Washington & Lee’s program the “biggest legal education story of 2013.”

Sadly, the statistics say otherwise. Washington & Lee’s recent employment outcomes are worse than those of similarly ranked schools.

When the biggest and brightest new idea that everyone adores crashes and burns, a post-mortem is in order.  Merritt unceremoniously lays it out:

The results are troubling for advocates of experiential learning. They should also force employers to reflect on their own behavior: Does the rhetoric of “practice ready” graduates align with the reality of legal hiring?

Q. Other insights from the data you’ve gathered about Google employees?

A. One of the things we’ve seen from all our data crunching is that G.P.A.’s are worthless as a criteria for hiring, and test scores are worthless — no correlation at all except for brand-new college grads, where there’s a slight correlation. Google famously used to ask everyone for a transcript and G.P.A.’s and test scores, but we don’t anymore, unless you’re just a few years out of school. We found that they don’t predict anything.

What’s interesting is the proportion of people without any college education at Google has increased over time as well. So we have teams where you have 14 percent of the team made up of people who’ve never gone to college.

Q. Can you elaborate a bit more on the lack of correlation?

A. After two or three years, your ability to perform at Google is completely unrelated to how you performed when you were in school, because the skills you required in college are very different. You’re also fundamentally a different person. You learn and grow, you think about things differently.

Another reason is that I think academic environments are artificial environments. People who succeed there are sort of finely trained, they’re conditioned to succeed in that environment. One of my own frustrations when I was in college and grad school is that you knew the professor was looking for a specific answer. You could figure that out, but it’s much more interesting to solve problems where there isn’t an obvious answer. You want people who like figuring out stuff where there is no obvious answer.

Of course, in law, there is always an answer: It depends.

Josh Dratel has spent the last few years doing something that few of us really want to do, defending the penniless accused terrorists.  It’s thankless work, given the near impossibility of getting the basic information that would otherwise be offered to the defense of anyone else because of national security.  It’s not so secret that they can’t indict and convict, but it’s far too secret to let even defense counsel with security clearance know about.  An interesting concept of due process.

That made it all the more curious when Josh learned that these  huge secrets were being spilled before Congress in defense of the NSA’s collecting every bit of information that conceivably exists about anyone. 

When a senior FBI official told Congress the role the NSA’s secret surveillance apparatus played in a San Diego terror financing case today, nobody was more surprised to hear it than the defense attorney who fought a long and futile court battle to get exactly the same information while defending the case in court.

“His lawyers — who all have security clearances — we can’t learn about it until it’s to the government’s tactical advantage politically to disclose it,” says New York attorney Joshua Dratel. “National security is about keeping illegal conduct concealed from the American public until you’re forced to justify it because someone ratted you out.”

When it’s a matter of discovery in a federal prosecution, mums the word. When it’s about justifying secret conduct that undermines the integrity of the American government, it becomes a four-part harmony of the greater glory of our nation.  Can you hum a few bars?

When Josh tried to get access to the FISA applications that allowed the government to seize 1800 phone calls and 680 pages of emails, he was stonewalled.

The government fought the request in a 60-page reply brief, much of it redacted as classified in the public docket. The Justice Department argued that the defendants had no right to see any of the filings from the secret court, and instead the judge could review the filings alone in chambers. “Confidentiality is critical to national security,” the government wrote (.pdf)

Not that it really mattered:

“Indeed, to the Government’s knowledge, no court has ever suppressed FISA- obtained or -derived information, or held an adversarial hearing on motions to disclose or to suppress,” the government added.

But despite his security clearance, it wasn’t enough that he was deprived of the basic discovery that would otherwise be required in any criminal prosecution. Josh wasn’t even allowed to see the judge’s order denying him access.

U.S. District Judge Jeffrey T. Miller rejected the defense FISA challenge in a secret opinion in June of last year; even Dratel, who has a government security clearance, was not permitted to see the order, he says. The first he learned of the NSA’s role in his client’s case was when Joyce disclosed it on CSPAN to argue for the effectiveness of the NSA’s spying.

CSPAN, the newest delivery method of Rule 16 discovery. Of course, the revelation wasn’t meant for Josh or his client, for whom the concept of due process was nothing more than “trust us.”  This was the means for the government to show the efficacy of its efforts to protect us from terrorism, to thwart the plots that would let the terrorists win by undermining our way of life.  This is why it was important enough to disclose such critical national secrets that couldn’t possibly be revealed to security-cleared lawyers defending people entitled, by law and Constitution, to know the evidence against them.

And they protected us from what?  Well, there is the nightmarish plot to bomb the New York Stock Exchange.

By coincidence, Dratel also represents Sabirhan Hasanoff, who was also cited by Joyce in a surveillance success story. Hasanoff supposedly plotted to blow up the New York Stock Exchange. Hasanoff has pleaded guilty to providing material support to terrorists. But the government’s own sentencing memorandum shows that the defendants called off a proposed plot on their own, without any involvement from federal authorities, and over a year before being arrested.

“There was no plot,” says Dratel. “There was one guy was asked to check out a tourist site downtown. It was a year and a half before they arrested Hasanoff. So if they thought it was really a plot, what were they doing letting him run around?”

You might think it weird that the powerful and important men explaining to Congress how their accumulation of every bit of information they could get their hands on saved America from devastation neglected to mention this.  But given the vast amount of information, how can you reasonably expect them to remember that the plot to blow up the stock exchange was nonsense? These guys  have oodles of info in their heads. They don’t suffer the small stuff.

Even Josh, probably because he took the secrecy a bit personally before he realized that he could get discovery by watching TV, doesn’t appreciate the importance of national security.

“This casts suspicion on everything they say about these programs, and the efficacy of these programs,” says Dratel. “Their notion of transparency is so tired. They have to stop lying to everybody.”

Tired? Maybe  not as tired as he might suspect.



After all, there are plenty of buildings across the nation that nobody blew up, which proves what a great job our government is doing to stop terrorism.  All they have to do to succeed is keep it secret, and Americans certainly appreciate it, even if Josh doesn’t.

H/T Doug Cornelius

The mother of an eleven year old knew they would be coming for her child.  Why remains a mystery, which is likely for the best. It can’t be a good thing when an eleven year old gets arrested. But as a mother, as a person, as a Texan and as an American, she did the one thing she could.  She asked the police officers at her front door to show her the warrant.

Via  MyFoxLubbock by way of  Turley :

The mother said that she was aware that there was a criminal complaint made against her 11-year-old son and simply told police “I will release my son to you upon viewing those orders.’ She says that the officer responded:

“He said, ‘This is how you want to play?’ He took two steps back, turned around to the officer and said, ‘Take her.’ They turned me around, handcuffed me, and took me in.

She spent the night in jail and police left the boy at the house. He was never arrested. Her lawyer says that it turns out that there was no warrant since the encounter occurred on May 29 but the directive to apprehend was not signed until May 30.

“He told me it was their duty to come pick up my son,” She said. “Yet, I had someone stay the night at my house. They never came back that evening, they never came to pick up my son, or do what they told me they were there to do in the beginning.”

[The mother’s lawyer, Dwight] McDonald said the Slaton Police Department will issue an apology as long as the mother agrees not to file a lawsuit.

[My Fox Lubbock] attempted to contact Slaton’s city attorney and city manager. Due to the possibility of litigation, both declined to comment.

Chief Steven Wheeler assumed command of the department in August of 2011. Chief Wheeler believes in building strong communities through education, communication and cooperation.

Reading a book written by a friend is a leap of faith, approached with trepidation. What if it’s awful? What if it’s not awful, but just not very good? But there is no real option, particularly when it is about a subject of deep concern and fascination for both of us.

And so there was never a question when Radley Balko announced his forthcoming book, Rise of the Warrior Cop, The Militarization of America’s Police Forces. I would read it. I would review it. I would be as critical of it as I would of any other book, and hope for the best.  Let’s get this out of the way up front: Every person who shares an interest in the relationship among policing, criminal justice and American society must read this book. And there is no one who can afford not to share that interest.

The book, published by Public Affairs and scheduled for release on July 9, 2013, starts at the beginning, taking us from the days when Americans policed themselves to the birth of the occupation of policing.  While I was well aware of  Radley’s persistence and acumen at chronicling current events, I never realized what a thorough researcher he is. The history of policing is remarkably impressive.

It’s critical to appreciate the history of policing, to understand that what we now see as normal and inescapable wasn’t always the case. For most of our history, this country did not have a group of people with shields and guns who wandered the streets ordering people about. The fall from grace, If you perceive it as I do, came fast and hard.

American attitudes toward police were built on images of Andy Griffith, strolling the streets of Mayberry to save random cats and, an allusion Radley employs, serving as guest umpire in the occasional baseball game. Good. Honest, One of us. This was the police officer upon whom we relied, and the one we pictured as we told our children that they were here to help us; they were our friend. 

Starting in the 1960’s, Radley takes us decade by decade down the road to perdition.  As he wears his libertarian politics on his sleeve, it came as no surprise that he gave the politics of law enforcement special scrutiny.  His hatred of Richard Nixon for manipulating the silent majority’s hatred of hippies and counterculture into the War on Drugs is palpable. On the other hand, there is no reluctance to blame Bill Clinton for his deceitful abuse of the COPS program, and its infusion of billions into the drug war a few decades later.

Radley is a surprisingly good story teller, generally low key in recounting tales of individual harm interspersed with broad influences that gave rise to putting heavy weaponry into the hands of children.  There are times when the narrative gets a bit breathless, trying hard to capture the confluence of political deceit on the part of some and ignorance on the part of others.  Then again, the alternative would be to simply call out the liars and morons for their contribution to a state of affairs that served to put a naïve American public at grave risk for such puny and transitory purposes as winning an election. 

What came as quite a surprise was Radley’s discussion of the start of SWAT, special weapons and tactics (notably not including the word “attack” because, well, that might upset people).  His description is not merely calm, but borders on sympathetic.  It reflects the balance of his approach, which is quite shocking in light of what we all know to come at the end of the story.

The book contains required caveat number 3, mentioned numerous times that this is not an anti-cop book.  And indeed, Radley pays homage to those within law enforcement who recognized the developing schism between police and the public that would lead us to blur the line between soldier fighting a foreign enemy on the battlefield and police fighting a domestic enemy on the streets of America, using the same clothing, weapons and attitudes.  The book has its heroes, though they pale in comparison to such moral scolds as William Bennett.

At the outset, Radley tries to develop a theme based on the symbolic Third Amendment, the quartering of soldiers, to show our tradition of not allowing a standing army in our midst to trump the sanctity of our Castles.  He returns to that theme from time to time, bringing it full circle toward the end. The theme seemed strained at times, and not really necessary to appreciate how government intrusion into our lives and homes has worked its harm. 

As anyone who has even a passing familiarity with Radley’s efforts at chronicling wrong door raids and puppycide would expect, the book infuses individual tales of horror throughout, with a special pounding at the end of story after story of what becomes of a police presence more concerned with using the toys in hand than showing restraint, thoughtfulness, concern for the fact that the people on the other end of their bullets are their fellow Americans.  Radley does not disappoint.

While the book, not surprisingly, provides an in depth look at the political forces and machinery at work in creating the militarization of police, it doesn’t dwell too much on the role of the cop on the street. Sure, there is the machismo and the great fun of wearing body armor and carrying assault weapons when serving a warrant on a medical marijuana user, but the focus is more macro than micro. 

It’s unclear what makes a guy who is otherwise a fine neighbor, a good father, a great fan of baseball perhaps, into a mindless killer of his fellow citizens.  Wearing a black jumpsuit and Kevlar helmet isn’t enough of an explanation for pulling the trigger on his assault rifle pointed at the head of a child. Even with Washington dumping tons of surplus military equipment on police departments with three cops, all of whom want to be on the SWAT team so they can be just as cool as the big city guys, there is a gap in what happens in the head of a police officer who looks into the eyes of another man’s child and decides that he’s going to end his life. How did that happen?

It’s impossible to fathom how any reader of SJ won’t read this book immediately. It’s a critical history of how we got from there to here, from Officer Friendly to the Lenco Bearcat in a town with no crime.  And why, once the toys are in hand, they must be used.  And they are used against us.  But this book needs to go much farther, as there is no person, not even a child, who hopes to survive life in modern America who doesn’t need to know that this nation wasn’t always at the mercy of an overly weaponized, seemingly omnipotent force.

If there is any hope of changing the course of the militarization of law enforcement, it will come from a greater understanding of why this was never meant to be the internal norm of this country, and that it doesn’t have to be.  Radley Balko has done an exceptional job of making the case.  Every person who hopes to preserve the integrity of his Castle from dynamic entry needs to read The Rise of Warrior Cop. Spread the word.

What does silence mean? It means Genovevo Salinas isn’t going home again. It strained hope to think otherwise, but the absence of sound doesn’t necessarily suggest the absence of thought.  When the plurality opinion in  Salinas v. Texas was announced by Sam Alito, however, any lingering hope was sucked out of the room.

Contrary to many, who saw the right to remain silent as one so fundamentally well-grounded as to form the default relationship between citizen and agent of the state, there  seemed little hope of that being the case after the Supreme Court’s misbegotten  Berghuis v. Thompkins decision, holding the post-Miranda silence is not an invocation of the 5th Amendment right. That non-custodial silence would be shown any greater significance, meaning, was hard to imagine. 

At Volokh Conspiracy, Orin Kerr provides an excellent, and much needed, history of the 5th Amendment privilege against self-incrimination, the most significant aspect of which is that it is a privilege against compulsion, “nor shall [any person] be compelled in any criminal case to be a witness against himself.” 

No one made Salinas agree to voluntarily answer the questions of police, though this point depends on a fantasy that ignores submission to the shield, law enforcement training designed to overcome independent choice and the overarching sense that refusal to cooperate will result in bad things, ranging from arrest for being uncooperative if not for the underlying crime to a beating from an officer whose commands aren’t complied with fast enough.  Judges refuse to acknowledge how regular people feel when confronted by police, and so rule based on the view from high on their bench.  Reality rarely touches the world of the Supreme Court justice.

Genovevo Salinas did indeed walk into a buzzsaw of questioning. He was asked questions, and he answered them. He was asked the question he didn’t want to answer, and he went silent. He looked down, he shuffled his feet and his silence told them what they wanted to know.

The question isn’t whether anyone made Salinas answer questions. To a judge, no one did. To anyone else, it’s not so clear. He wasn’t actively forced to do so, but the magic doesn’t have to require force. The mere refusal to be cooperative carries baggage, at least in the real world.

So when Salinas stopped talking, didn’t answer a question after having been otherwise cooperative, he wasn’t made to answer. He wasn’t compelled, in the legal sense. And thus, his silence gave rise to the argument that his failure to utter a denial was tantamount to his confession. His silence spoke volumes.

There is an argument to be made that there is inadequate probative value in silence, and that the prejudice far outweighs whatever inference can be drawn, but it’s a weak argument, one that depends on the discretion of the judge.  Such discretionary evidentiary decisions are hardly an adequate safeguard of constitutional rights.  So the line is drawn by the  Salinas opinion, and it requires pre-Miranda, pre-custody invocation of the right to remain silent.  While the decision doesn’t speak to it, it would be wise to assume that the invocation will be required to be as unambiguous as it would be post-Miranda.

As I’ve suggested before, the “advice” of the internet to “just say nothing” to police isn’t sound.  After this decision, it’s affirmatively wrong.  Silence can be used against you, and saying nothing may serve to incriminate a person just like speaking.  But that doesn’t help lawyers to advise people as to what they should do.  As Orin asks,

But on the other end, the courts might say that an assertion of the Fifth Amendment right when there is no actual Fifth Amendment right at stake is entitled to no special treatment. In that case, the defendant would be allowed to formally assert his Fifth Amendment right but the prosecution would be free to comment on it as indicating guilt.

Officer, my lawyer has advised me that I am never to answer questions by the police, and since I am not a lawyer, I am constrained to follow my lawyer’s advice and refuse to answer questions.

Jeff Gamso raises a  troubling unintended consequence stemming from Texas’ financial generosity (meant in the most relative sense) toward the folks it wrongfully convicts. Well, at least toward the wrongfully convicted who  aren’t put to death before they can claim their compensation.

Meet Steven Phillips.

In 1982, Steve and Traci Phillips were starting a new business.  Traci was pregnant with their first child.  Life was good.

Then Steve was charged with a string of sex crimes.  Brandi Grissom in the Texas Tribune picks up the story.

In two trials in 1982 and 1983, he was convicted based largely on eyewitness identifications, despite his wife’s vehement protestations from the witness stand that he could not have committed the crimes.

He pleaded guilty to additional charges to prevent a third trial and a likely life sentence. She said she spent the next decade visiting him in prison, raising their son, sending money for items her husband needed, and hoping to find a way to get him out.

That’s what people do for the ones they love who are in prison.  But you know, those visits, the cash, the raising the kid.  Trying to make the child understand why Daddy isn’t home.  And the neighbors and the other kids at school and . . . .

In 2009, the state awarded him lump sum payments totaling more than $2 million, and a monthly annuity of more than $11,000. In total, his compensation package for the time he spent in prison is worth nearly $6 million, not including health care and education benefits he is also eligible to receive.

She’s now Traci Tucker, and she figures she’s entitled to a share. 

“He was a victim of a wrongful justice system, and his family was also,” Tucker said.

Which is certainly true.  And is how the judge who awarded her a bit over $150,000 looked at it.  Steve, of course, doesn’t quite look at it that way.  The $6 million he got was for what was done to him, not to them.  And while he appreciates her testifying for him, well, yeah.  But 24 years.  And she never came to visit all that often even before the divorce.

If the question was settled by who suffered more, Steve or Traci, then Steve would have to win. But that’s not the real question.  What is reflected by Traci’s claim and award is that the wrong done Steve touches other lives, and the harm is most real.  As Gamso notes, Traci and her family weren’t living the high life following Steve’s wrongful conviction. She lost a husband. Her children lost a father. They had no choice but live with the humiliation, the hatred, society imposes on the convicted, even when they’re innocent. 

Traci had to pay for the food, the roof over their heads and the shoes on the kids’ feet. Texas pays for the guy staring at walls and bars, day after day, night after night, for 24 years, when he should have been in the fresh air watching ball games and explaining why Tony Romo was never a franchise quarterback.

There is a whole lot of life we live, and it involves a lot more people than most of us think about.  Traci Phillips endured a decade of misery due to her husband’s wrongful conviction. Even if it wasn’t as bad as what he endured, she was no more deserving.

So what about Traci?

“This is an example of the law of unintended consequences,” said state Rep.  Rafael Anchia, D-Dallas. “We did not think about entitlement by spouses who had become divorced from these innocent men while they were in prison.”

So should we just add this to the list of things no one thought about when convicting the innocent?  It may not offer any solution, any help for Traci, but at least it’s not a strident defense of the system, imperfect but….

The shame now is that Traci and Steve went to war over this issue, as the last thing a guy freed from 24 years of wrongful imprisonment needs is more time in court.  Traci divorced Steve long before he was freed, whether because marriage to a guy, even if innocent, in prison forever isn’t nearly as much fun as she thought on her wedding day, or because they started to fight when the prison cell wasn’t big enough for the two of them.  Who knows why, but it’s hard to blame Traci for not standing by her man until the miracle of release happened.  It’s just too long a bet for someone to stake their life on, even if they’re the one on the outside.

The answer to the conundrum, of course, is not to convict the innocent.  But then we might leave a guilty person free, and nobody in Texas wants that to happen.

While awaiting Judge Shira Scheindlin’s decision on just how unconstitutional stop & frisk is, a voice from the side could suddenly be heard.  It wasn’t there during the fight to get Floyd v. New York to trial. It wasn’t there to offer support and evidence on behalf of the plaintiffs, but that was understandable, given how busy they’ve been lately.

The Department of Justice is a very busy agency, what with being  preoccupied with drone strikes against Americans and making sure the FISC appreciated all the National Security Agency was doing to protect us. At least it no longer has to explain the legal propriety of torture.

Last Wednesday, the DoJ suddenly had something to say.  It filed a Statement of Interest, which is what a vulture would file as it flew over a dying carcass if it only had thumbs. It’s simultaneously humble and, well, intriguing:

The United States takes no position on the fact-dependent first question of whether NYPD’s stop-and-frisk practices violate constitutional standards such that Plaintiffs should prevail on the merits of their claims. The United States files this Statement of Interest only in order to assist the Court on the issue of remedy, and only should it find that NYPD’s stop-and-frisk practices are unlawful.

See what they did there?  Who is the United States Department of Justice, the bunch of really hard-working, trustworthy guys under the guidance of the Attorney General of the United States of America, to offer an opinion as to the constitutionality of stop & frisk?  Don’t you admire their restraint?

Don’t jump to the wrong conclusion. It’s not like they don’t have an opinion. It’s just that they don’t want to stick their nose into somebody else’s business. After all, it’s not like it’s the Attorney General’s job to protect and defend the Constitution. Oh wait.

But they are now, even if belatedly, here for us. Despite the many critical things they do, like providing a secondary source of prosecuting drug offenders who are already subject to state penal laws and instructing American multinational corporations how to best conduct business around the world the American way, the DoJ has graciously offered to help the Court to ensure that conduct it refuses to call unconstitutional is performed constitutionally in the future.

It is the position of the United States that, should the Court find that NYPD’s stop-and-frisk practices are unlawful, the Court has wide discretion to enter injunctive relief aimed at bringing any practices it finds to be unlawful into compliance with the Constitution and other laws. The injunctive relief may include the appointment of an independent monitor for the limited purpose of assisting the Court and the parties to ensure that any remedy related to any adverse findings regarding stop-and-frisk practices is implemented.

After all, if you can’t trust the people who stood by and did nothing before, and can’t bring themselves to take a position now, who can you trust?

The  New York Times has an editorial calling this a “loud message to the NYPD.”

After years of sitting on the sidelines, the United States Justice Department has finally made itself heard in the federal civil rights lawsuit by New Yorkers who say the Police Department has been illegally detaining hundreds of thousands of people on the streets each year based not on suspicious behavior but on race.

In a statement filed in federal court in Manhattan on Wednesday, the Justice Department did not take a stand on the case, on which Judge Shira Scheindlin has yet to rule, but strongly endorsed the idea of enlisting an independent monitor to oversee Police Department reform in the event that she finds the stop-and-frisk program unconstitutional. That put the federal government squarely behind an idea that Mayor Michael Bloomberg and Police Commissioner Raymond Kelly have fought tooth and nail.

A curious juxtaposition of reality leads to an even more curious interpretation of the feds’ position. After noting how the DoJ stared at the problem for years and did nothing, it has suddenly appeared
as the body lie dying to “strongly” urge a federal independent monitor. 

The use of a federal monitor to oversee compliance by the New York Police Department is likely the best idea available.  Not because it’s necessarily a good idea, but because it’s better than every other idea, like expecting the NYPD to heed the ruling of the Court or just start respecting the constitutional rights of black and Hispanic youths because, well, they’re a swell bunch of guys.

The line to be drawn going forward, assuming (as I do without hesitation) that Judge Scheindlin will hold the stop and frisk program to be flagrantly unconstitutional, is a hard one to spot.  Police need only make easy claims, the furtive movement, the evasive glance, the fighting stance, that evades proof or testing, to justify tossing some kid against a wall and searching him at will. If the cops say so, then so it is. 

Sure, state and local judges might have a role in putting an end to flagrant violations, but that would require them to rule against police and not credit their testimony, which would mean they would get picked last for judicial softball games. How humiliating would that be?  Plus, nearly 90% of those searched never see a judge, because they have nothing on them to suggest a crime. So they walk away, thankful they haven’t spent a night in jail awaiting a dismissal and a lecture about why they should never commit a crime they never committed before.

So if the cops can’t be trusted to clean up their own act, particularly given their proclivity to adjust the rhetoric to suit their conduct and that undisputed fact that they just don’t see why they can’t toss a suspect at will anyway, who can?  Judge Scheindlin can’t become embroiled in every search. Who then? Who?

Have no fear. The feds are here to save the day, to offer up an “independent” person who will ride shotgun in every RMP, sit on the shoulder of every beat cop, making sure that the police of the City are every bit as respectful of the Constitution as the very special agents of the United States of America. Don’t you feel better knowing this?