At the New York Times editorial notebook, Brent Staples offers three lessons from the cheating scandal in Atlanta.

The first is that overemphasizing scores is a mistake.

The second is that teacher evaluation systems — now under development in most states — will be of little use unless they include mechanisms for showing teachers who receive average ratings how to become great, or at least good, at what they do.

And finally, the country will not build a first-rate teacher corps solely by threatening to fire people who are less than perfect early in their careers.

The Sand­wich The­ory has become social con­ven­tion because it works. It works because most human beings—not just law students—are frag­ile; by sand­wich­ing con­struc­tive crit­i­cism between slices of praise, the teacher sends the mes­sage that the crit­i­cism is not personal.

And yes, criminal-defense lawyers should be tougher than that. But the Sand­wich The­ory is a teach­ing tool—perhaps an effec­tive one—and if you want to teach peo­ple you’ll use what­ever tools come to hand.

Apparently, the plan was to make sure no one could ever challenge an accusation of sexual misconduct in college. Lest there be any question, this was not because of some intrinsic hatred of due process, confrontation, all those nasty technicalities that criminal defense lawyers hurl about in criminal courtrooms.

This was about promoting the feminist agenda that no woman who alleged that she had been sexually abused, no matter what evidence she had or existed to the contrary, should ever, ever, lose.  This isn’t a contrarian view, or a secret scheme, but as open and apparent as could be.  It affected the serious and foolish alike.  It was a policy choice. They would rather ten innocent male students be expelled than one false accusation of sexual misconduct fail.

And it not only seemed like a good idea at the time, but was  bolstered by legal scholars who ridiculed the notion that the rights afforded to criminal defendants, due process, reliable evidence, confrontation, double jeopardy, have any place in university discipline when a claim of sexual abuse was on the table.  Anyone who thought the accused deserved half a chance was a misogynist, which is one step above a rapist and deserving of whatever pain was inflicted anyway.

In the Wall Street Journal, lawyer, feminist and mother Judith Grossman tells of her son being the accused.  Key to her commentary is that the young man with his butt in the hot seat was hers.  Not mine. Not yours, but hers. Nothing clarifies issues as well as being personally touched by them, and nothing touches a mother more than her child being in the line of fire.

Until a month ago, I would have expressed unqualified support for Title IX and for the Violence Against Women Act. with alleged acts of “nonconsensual sex” that supposedly occurred during the course of their relationship a few years earlier.

What followed was a nightmare—a fall through Alice’s looking-glass into a world that I could not possibly have believed existed, least of all behind the ivy-covered walls thought to protect an ostensible dedication to enlightenment and intellectual betterment.

To the extent we blink so that we don’t need to see the ugly details of larger concepts we adore, like Title IX and the Violence Against Women Act, the people forced into battle have no choice but to look them square in the eye.

I recall a client, whose politics were very Republican, very conservative, charged with a very serious crime back when Dukakis was running against the Elder Bush, asking me why the government wasn’t offering him a slap on the wrist because of “revolving door justice,” harkening the pervasive Willie Horton advertisement of the time.  I just smiled as he realized that he might have been a little too blinded by his politics, and the TV advertising was not a sound basis for his expectations of the criminal justice system.  I enjoyed the irony, though I knew how painful his epiphany would be.

So too was Grossman’s epiphany.

There was no preliminary inquiry on the part of anyone at the school into these accusations about behavior alleged to have taken place a few years earlier, no consideration of the possibility that jealousy or revenge might be motivating a spurned young ex-lover to lash out. Worst of all, my son would not be afforded a presumption of innocence.

In fact, Title IX, that so-called guarantor of equality between the sexes on college campuses, and as applied by a recent directive from the Department of Education’s Office for Civil Rights, has obliterated the presumption of innocence that is so foundational to our traditions of justice.

Grossman goes on, in the fashion that happens regularly by the accused and their family, to parse the minutiae of process, excruciating detail by detail, astounded and outraged by the rights not afforded, the ones we spouse in our “tradition of justice” in the “real” legal system.  It’s almost charming in its naiveté.

The evisceration of rights always comes in lockstep with high ideals and good intentions.  Do it for the women. Do it for the children. No one should ever have to suffer the harm, the pain, the indignity of being the victim of whatever flavor of offense we’re striving to eliminate today.  Grossman was all for it, until she wasn’t.

But she better hope that her son is never the target of an accusation in a real courtroom.  Sure, all those rights she touts are chiseled into the courthouse lintels and appear in the first few paragraphs of legal opinions that go on to explain why they don’t apply in this case.  We have a tradition of reciting platitudes of justice, and a tradition of coming up with really good reasons why they don’t apply.

I fear that in the current climate the goal of “women’s rights,” with the compliance of politically motivated government policy and the tacit complicity of college administrators, runs the risk of grounding our most cherished institutions in a veritable snake pit of injustice—not unlike the very injustices the movement itself has for so long sought to correct. Unbridled feminist orthodoxy is no more the answer than are attitudes and policies that victimize the victim.

Or terrorism. Or the war against drugs. As sympathetic as we may be with the plight of Judith Grossman’s son, her vision is still limited to that which touched her life.  The evil she sees is “unbridled feminist orthodoxy,” because her son was charged with sexual misconduct.  But it’s no more evil than any agenda stoked by the “current climate” of fear.

I hope she is never forced to come to the larger epiphany because her son has been accused of some other offense against some other orthodoxy.  This may be a huge step forward for Grossman, but she still has a very long trip ahead of her before she realizes what the “tradition of justice” really means.

H/T Walter Olson at Overlawyered

Rarely is there an opportunity to understand the sensibility that distinguishes what a marketer sees from what a lawyer sees, but courtesy of Gyi Tsakalakis at  The Puddle, it’s hard to miss.

Lawyers are always asking. “who has the best law firm website?” And I always answer, “that’s easy, Saul Goodman.”

But what makes attorney Goodman’s website the best?

Wait for it…wait for it…

To the experienced legal web designer’s eye, the effectiveness of Saul’s site is immediately apparent from the home page.

Anyone familiar with Plutchik’s wheel of emotions will immediately recognize the intentional use oranges (vigilance), yellows (ecstasy) and reds (rage).

BOOM!



How much would you pay a legal marketer, a website designer, any vulture who tries to make a living off the desperation of lawyers, for a website like this?  A thousand dollars? A million dollars? Absolutely nothing?

If this is what Saul is shooting for, to be a clown on the interwebz, to get the thousand phone calls that the rest of us would pay money not to get, the tire-kickers, the pro bono seekers, the I’m-innocent-so-why-do-I-have-to-pay? crew, the clients that ten lawyers sent packing who need an attorney with “courage”?

If you want the phone to ring off the hook, then this website is the one for you.  No, you won’t become fabulously rich and famous. In fact, chances are pretty good that if the come-on does its job, you will never get off the phone, spending your days (and nights, because they love to call at night when it’s convenient for them) fielding free answers and the tin-foil hat wearers who want to sue the CIA for shooting gamma rays their way.

And if this is how Saul Goodman wants to run his law practice, so be it. Best of luck, Saul.

It’s nothing I would do. Ever. But then, Gyi not only likes this, but likes it so much that he holds Saul’s website out as the best there is.  And unlike me, Gyi is a legal marketer.

As Turk said long ago, when you outsource your marketing, you outsource your ethics.  A corollary is that you outsource your sensibilities as well.  As a curmudgeon, I maintain a view that lawyers, as member of a learned profession, do better to maintain a level of dignity.  We do not sell ourselves like laundry detergent.  Unlike Saul, offering two-fer misdemeanor defenses isn’t the way I choose to conduct my practice.

But it’s not just the website. As Gyi notes, Saul also does TV ads to grab potential clients by the throat.



Classy, but as Gyi notes, “real lawyers know these just work,” provided by “work” he means attracts eyeballs and ridicule.

So is this what you want to pay a marketer to do for you?

Does your law firm website suck? Better call Saul.

Was this what you dreamed about when you went to law school?

Update: As I’ve now been informed by every person under 40 who reads SJ, Saul Goodman isn’t a real lawyer, but a character on some television show called Breaking Bad, and I just didn’t know it. I’ve been punk’d.

Well played, Gyi. Well played.

Of the many leeches in the cottage technology industry feeding off the legal system, one of the most disturbing is the criminal records business.  With all those pop-up ads that appear when you try to get a telephone number or a resume, offering to run a criminal records search, there must be somebody buying as there are plenty of people selling.

While there may be some justifications for selling criminal history of adults, though there are far more reasons why they shouldn’t be sold, the paradigm shifts when the records being sold are those of children.  You did realize that some state legal systems sell the records, didn’t you? It’s not like they give them away and pass up a revenue raising opportunity.

Eight states make juvenile records publicly available. Three sell them, including Washington State.  And they go cheap.  Via MYNorthwest :

In selling juvenile records, [Bailey] Stober [executive assistant of the Washington State Commission on African American Affairs] says we’re trading a young person’s life for pennies.

“About 27,500 records a year are sold and we only make $19,000 as a state in revenue off of it, so we’re talking about 69 cents per name for a kid’s future,” he says.

Companies have contractual agreements with the state to be able to gather felony records in a mass download. Those companies then make the information available on the Internet. Landlords, employers and educational institutions can do a simple search and find the information.

But surely the records of juvenile can be sealed or expunged so that they disappear into the ether, right?

“Within days of your 18th birthday, we sell those records online. So you can get your record sealed all you want to. We’ve already sold your record and it’s online,” Stober says. “Sealing it does nothing. When those employers, apartments and landlords go to do the records checks, they’re pulling what’s on the Internet, not what the state has sealed or hasn’t sealed.”

This is a problem for anyone, but a far greater, and more outrageous, problem for kids.  On the one side, the ostensible purpose of a juvenile justice system is that we recognize that their brains aren’t fully developed, that they make mistakes, do dumb things and consequently have created a system designed for the specific purpose of limiting the consequences to distinguish them from adults, and allow them to move beyond their wayward childish conduct so they can move forward toward a useful, law-abiding life as an adult.

These are good things. These are the things we hope to encourage.  We want children to have a second chance, an opportunity to leave their juvenile mistake behind them so they can go on to accomplish great things as an adult.

Except the internet doesn’t forget.  Once a company purchases a criminal history dump from Washington State, it’s in there forever.  Every sentence becomes a life sentence, because the crime will follow the person for the rest of his or her life.

Is it really a big deal?  Well, yeah. It really is a big deal.

“I was talking with a girl who has a juvenile record for something that happened in her house when she was a teen,” says Representative Ruth Kagi. “It was a very violent household and she spat at her father. Her father called the police and she was charged with assault. She is now finding that that is a real barrier for her to get a job as a 20-year-old.”

“I met a young man who was 16 years old and he stole his mother’s car. He wanted to go on a joy ride with his friends around town. Mom called the police and said, ‘Can you find my kid, scare him, and bring him home because I don’t want this happening again?’ The police found her son and arrested him for auto theft and he spent two years in a juvenile prison. While he was in prison, he was able to get his GED and his associate’s degree”…
 
When the young man started applying to private colleges, he couldn’t get financial aid because of the felony on his record.

He finally got into a college without financial aid. He now has a bachelor’s degree in communications yet can’t get a job or an apartment because his juvenile record lists him as a felon.

This gives rise to a permanent underclass that will have constant problems getting an education, a job, a home, all for some dumb move made as a kid.  Maybe even for something that should never have resulted in a conviction at all, but for lack of parental love and assistance, an assembly-line system and even judges looking to make their own buck off them.  But once it’s sold to some vulture business, it follows them forever.  All for about 69¢ per child.

While there is legislation pending to limit the sale of criminal histories to juveniles who were convicted of “serious” crimes, as if nothing could go wrong with that because government records are so well maintained, people would never be confused between the crime charged and the crime convicted and the same faults of tainting a child for life for something they did when they were 12 were outweighed by the public’s curiosity, this is a disaster in the making. 

Not only have they “paid their debt to society” assuming there was really a debt to pay, but have been tarred for life for conduct committed when they were too immature to understand the significance of their acts.  And so we ruin lives for fun and profit.  Is the 69¢ worth it?

H/T FritzMuffKnuckle

No, not the Slackoisie, who are just going to hate this, but the employer. Via Reviving Work Ethic.



H/T Stephanie West Allen

A video at LiveLeak of Rehoboth Beach, Delaware, Police Officer Robert Whitman repeatedly tasing an unknown man, referred to as “Jeremy” in a video taken by his wife who said she was pregnant, frames a question of whether the use of a Taser should be permissible as a tool of compliance.



Clearly, the individual had no weapon and presented no threat of harm to the officers, though he wasn’t sufficiently complying with their commands.  At Delaware Online, the specter is raised that something preceding the video might justify the use of force.

What viewers don’t see, according to one witness who called the police, is that previously the man had been physically fighting with his wife, then wrestled with arriving officers for several minutes before they subdued him.

25. ECWs should be used only against subjects who are exhibiting active aggression or who are actively resisting in a manner that, in the officer’s judgment, is likely to result in injuries to themselves or others. ECWs should not be used against a passive subject.

One of the great curiosities of search and seizure law had long been the assumption that if a police officer knocked on the door of a place thought have drugs inside and announced he was a cop, that alone would create an exigent circumstance sufficient for the police to burst in without a warrant.  The rationale was simple, that whoever was inside would destroy the evidence before a warrant could be obtained.

Flush. Drugs gone. Nothing to see here, officer.

What made it curious was that exigent circumstances, if any, were created by the actions of the police. It was their knock, their announce, that started the assumed chain of events in motion that justified ignoring the warrant clause.  Nice work if you can get it.

But the Texas Court of Criminal Appeals, of all courts, held that this will no longer be tolerated.  Via John Wesley Hall’s Fourth Amendment Blog , the CCA held in Turrubiate v. State  that even if officers smell pot outside the door, they can’t presume their knock and announce to create exigent circumstances.

Nothing in King supports the State’s contention that a police officer who has probable cause to believe that there are illegal narcotics in a home may enter that home without a warrant after he has identified himself as an officer and made his presence known to the occupant if there is a noticeable odor of marijuana emanating from the home. The State’s approach would abandon the requirement that the record affirmatively show facts that reasonably indicate exigent circumstances that a defendant was attempting to, or would attempt to, destroy evidence, a requirement vital to the Supreme Court’s holding in King. 

The State’s interpretation would permit a presumption that an occupant will attempt to destroy illegal narcotics merely because he possesses them and is aware of the presence of police, and there is an odor of marijuana. The State’s proposed approach is ultimately premised upon generalizations regarding the behavior of individuals who are in possession of illegal narcotics, namely, that they will take immediate action to destroy evidence if the police are at their door and an odor of marijuana fumes is present. (Internal cites omitted, and paragraph break added.)

Is it fair to presume that given the option of holding marijuana, while the cops are off getting a warrant, so that the evidence is preserved or flushing the drugs down the toilet, the latter is probable?  The Court says not enough to do away with the need for a warrant.

The State contends that, given the strong odor of marijuana emanating from appellant’s home, it was reasonable for the trial court to conclude that appellant was aware that the police were on his trail when he opened the door. Despite the lack of furtive movements, the State contends that these circumstances, alone, gave the officer reason to believe that appellant would attempt to destroy the marijuana absent immediate intervention. We disagree.

We can conceive of many instances in which an occupant possessing contraband would not attempt to destroy it after a police officer has identified himself at the occupant’s door. For example, a police officer may have probable cause to believe that a high-school student is in possession of marijuana that he sells from his bedroom in his parents’ home. The student’s parents, knowing that the officer is on the student’s “trail” for the marijuana in their home, would not necessarily attempt to destroy the contraband. But the State’s proposed approach would permit the warrantless search because an officer has probable cause and there is a presumed exigency that someone in possession of contraband will destroy it when he knows a police officer is on his trail. Or an occupant may know that it would be futile to attempt to destroy the illegal substance, such as someone in possession of 100 kilos of well-packaged cocaine. Or an occupant may decide to risk keeping the illegal substance despite the police presence, such as someone who believes he has successfully concealed the substance against police search. A reviewing court should not presume, therefore, that a showing that an occupant possessed contraband and that an officer with probable cause knocked and announced himself also shows that destruction of evidence was imminent.

While the examples may be fair, it’s quite shocking for a court to embrace the fact that the presumed norm doesn’t eviscerate the requirement for a warrant.  Of course, it may be that this is based on the fact that we’re talking about a person’s home, which has long been given greater protection than any other place, and this is Texas, where the sanctity of the home is particularly strong.

One member of the CCA, Presiding Judge Sharon “Killer” Keller, found the holding unacceptable.  She wrote in dissent:

If there is no reason for the occupant of the home to believe that an officer would be aware of illegal activity, exigent circumstances are not established because there is little to no risk that the contraband will be destroyed. The examples the Court gives to support its point, however, are distinguishable from a situation like the one in the instant case because, unlike in those examples, here there was a “very, very strong smell of marijuana coming from the home,” which was testified to by both Lopez and Deputy Chavarria. On this record–where Lopez returned within an hour with a police officer, and both Lopez and Deputy Chavarria immediately smelled a very strong odor of marijuana–it was reasonable for the deputy to believe that appellant knew that the deputy was aware of his marijuana possession. Thus, Deputy Chavarria’s belief that destruction of the contraband was imminent, and that he needed to act quickly to prevent its destruction, was reasonable. Therefore, the evidence in this case supported the trial court’s ruling.

Of course, the majority opinion acknowledged that the officers claimed that there was a strong smell of marijuana, as compared with Keller’s “very, very strong smell,” and even in Texas, adding two “verys” creates a substantive change in the fact pattern, as in “very, very guilty” being a good reason to close the courthouse doors at five o’clock.

Despite her laser-like olfactory focus, the majority didn’t deny that the assumption that the occupants might destroy the evidence to be unreasonable, but rather that it could not be presumed for the purpose of excepting the warrantless search from the 4th Amendment.

But the majority’s admonition is worth remembering:

When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time. Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

So even if the police can no longer presume that the occupants will flush the drugs down the toilet to evade the seizure of evidence, failing to destroy evidence and standing on one’s constitutional rights remains a game of chance. 

When I saw that Bruce MacEwen of Adam Smith, Esq., had posted “Reinvent Law:” You have spoken, I was ready to hate it.  I was geared up to argue why it was more nonsense, more of the same old new normal future of the law fluffery that’s been the darling of the game-changers. I was stoked.

Except that in reading Bruce’s post, I realized that he made a critical distinction that few before him had done.  Bruce’s blog is directed to the economics of Biglaw.  He doesn’t speak in overly vague or grandiose terms about how “The Law” is changing, but instead focuses on the aspects that differentiate Biglaw from the rest of the law.  He wasn’t saying that my law was changing. He wasn’t saying that all law was changing. He was saying that Biglaw was changing.

But second, and for my money far more importantly, those who think the fundamental premise of the partnership model cannot support investment outnumber those who think it can by 2:1. Truth be told, I think this cohort has the better of the argument.

So, if you agree that investment is needed (90%) and that our structure can’t support it (2 out of 3), we have some serious self-examination in our future.

As Bruce breaks up the results of a survey taken of his readers, and I doubt he and I share many readers if any, his use of the words “our” and “we” speaks to the white shoe guys, the thousand plus lawyers firms, the model that involves the problem of huge behemoths that lumber slowly, expensively, and without any individual sense of responsibility among the thousand partners to run their shop lean and smart.

In his “takeaways” from the survey, the focus becomes quite clear:

The bonus question seems a bit too broadly phrased; it seems likely that some law firms (e.g. top-end boutiques) will be able to glide along nicely by sticking to their current model, albeit tweaked a bit when necessary. By contrast, those firms outside this charmed group will really begin to struggle as their business model falls apart at the seams for all the reasons you set out in Growth is Dead, and it’s not clear to me that they have any realistic prospect of re-inventing themselves. [This posits what I’ve called the “Hollow Middle,” which forecasts very challenging times for firms not delivering utterly superb top-of-market service (think Audi/BMW, or even Ferrari/Bentley) or else unquestioned value for money (think H&M or Zara)–Bruce.]

I’ll be damned. I agree completely.  And this:

I don’t think any of the answers to the last question really capture my view. Law firms’ response will depend on how they are positioned and which market segments they serve. There will be room for high-end advisory services which can evolve from the existing model of delivering legal services, but there will also be volume plays for lower complexity work where LPO, technology and process will form part of successful business models.

When it comes to Biglaw, he’s right. What became abundantly clear to me as Bruce went on was that his forecast for the future of Biglaw was that the model was unsustainable and they had to become, ta da, us.  Solos. Small firms. SmallLaw. The future of Biglaw is small law. Holy mackerel!

Culture within big firms will be a barrier to change. If you want real innovation then you have to do it outside of the walls of a large law firm and start with a clean slate and hire people committed to the new vision. You will never get the majority of the partners in a large law firm to commit to serious change. As the rise of LPOs will be gradual, the level of urgency for change will not be sufficiently felt to implement radical change within law firms. [This is the “boiling frog” metaphor—Bruce.]

This was where the epiphany came to a head. The “culture” of solos, if it’s possible to call what one person believes to be a “culture,” is deliver the best quality legal representation possible without waste, either for us or our clients.  We don’t have marble waiting rooms or legal pads with our name engraved in 18 karat gold.  We eat lunch at the corner deli rather than our own cafeteria with firm branded coffee mugs. Maybe Biglaw can throw away money on such non-productive things, but we can’t. We work for a living.

Have you ever wondered how it’s possible that a Biglaw firm can manage to get paid ten times what you would charge for the same (if not worse) result?  My running joke is I could have lost that case for half the price, but the serious point is that I could provide the same or better representation for a fraction of what Biglaw charges and still been hugely profitable.  So how is it they can’t?

Bruce nails it with culture, a curious problem among what the elite call “peer” firms because  they need to believe they exist on a higher plane than the rest of the legal profession. When I spend money, it comes directly out of a pocket, whether mine or my client’s. I am acutely aware of it, and consequently don’t squander it on frivolities of no significance to the services I provide. 

This sensibility doesn’t exist in Biglaw for two reasons. First, the firms are so large and responsibility so diffused that no one feels the hand reaching into their pocket when money is pissed away like a drunken sailor.  Second, the fiction of elitism so permeates their self-image that they can’t imagine, can’t fathom, not being at the pinnacle of legal prominence. In other words, they just can’t accept the notion that the world doesn’t look at them in awe and admiration, and recognize that when it comes to excellence, there is no alternative.

If only there was a contest to see who could cross-examine a witness better, a solo or peer partner.  If the contest was to see who could do the cross for less money, there’s no question who would win.  And if there were bonus point for the flexibility to adopt to changing circumstances, it would be a slam dunk.

Perhaps the problem we’ve had in trying to mind-meld over the Reinvent the New Normal Future of the Law is that a game-changer to the Thought Leaders of Biglaw has always been the normal of solos and small firms.  There is nothing really new here, or out of our normal, but since they refused to acknowledge our existence or take what we do seriously, what they describe as “reinventing” is really just embracing what we’ve been doing all along.  Their new normal is our normal.

Remember when Dewey met Ballantine? Neither does anyone at Biglaw, but it started with a couple of guys back when running a law firm was personal.  Just like us.

The most common piece of advice given by criminal defense lawyers, even more than don’t try this at home, is that you have the right to remain silent. Use it.  But in Salinas v. Texas, scheduled for oral argument on April 17, 2013, the Supreme Court will consider whether silence in response to police questioning can be offered as evidence of guilt.  The Texas Court of Criminal Appeals held it could.

What? How can they do that? Everybody knows Miranda by heart.  It’s been enshrined in 1000 television shows. We have the right to remain silent, so how can the exercise of that right be used against us?

Well, Miranda had a little detail that somehow doesn’t make it into most lawyer shows, that it doesn’t come into play until a custodial interrogation.  That means when the police, in a non-custodial situation, ask questions, they don’t have to provide the beloved warnings and a failure to respond, silence, to a question may well be a response in itself, and available to the prosecution in its case-in-chief.

In Salinas, the defendant was approached by police about the murder of two brothers by shotgun.  Via the ABA Journal :

When the police approached Salinas at his home, he was generally cooperative, according to the briefs. He consented to a search of the residence. Asked about the presence of any guns, he told the officers that his father, who lived in the same home, owned a shotgun. The elder Salinas turned over the shotgun to the police, and Salinas agreed to go to the station house, ostensibly to provide fingerprints that might eliminate him as a suspect in the slayings of Juan and Hector Garza.

At the police station, Salinas was neither handcuffed nor placed in custody. He answered questions for nearly an hour about his relationship with the two victims and about his activities around the time of the slayings. Salinas answered every question but one—when the police asked him whether the shotgun from his home would match the shell casings found at the murder scene.

At that point, Salinas “looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, [and] began to tighten up,” an officer later testified.

After a mistrial, the prosecution hit silence hard in the retrial. In summation, the prosecution argued . “An innocent person is going to say: ‘What are you talking about? I didn’t do that. I wasn’t there.’ He didn’t respond that way. … He wouldn’t answer that question.” Bang. Twenty years.

In the merits brief, defendant argues that it makes no sense to distinguish the exercise of 5th Amendment right not to bear witness against oneself based on whether the silence happens in custody or before.

The prosecutorial use of such silence compels the defendant to be a witness against himself because it leaves him no avenue to avoid to avoid incriminating himself. If he speaks, his words can be used against him; and if he refuses to speak, the prosecution can argue that his silence is evidence of guilt.

The argument is as valid in the pre-arrest, pre-custodial phase as later. Indeed, though the defense neglected to make the point, it may well be argued that it’s more inquisitorial (rather than adversarial) to allow the prosecution to use silence as a weapon, given the pervasive knowledge and appreciation of the Miranda warnings.  Everyone knows that a person, having been warned, is entitled to exercise the right to remain silent. To the extent anyone isn’t prejudiced by the invocation of rights, this would be it.

On the other side of the equation, however, people expect an innocent person to speak to police, to freely answer questions.  As the Texas prosecutor argued in closing, that’s what innocent people do. The suspect is then placed in the position of specifically invoking his right to remain silent, pre-arrest, pre-custody, something that few people know how to do correctly at any time.  To the suspect, as well as the police, this is tantamount to a neon sign saying “arrest me, I did it!” 

In response, Texas latches onto the Supreme Court’s  misbegotten decision in Berghuis v. Thompkins, holding the silence isn’t the invocation of 5th Amendment rights, but merely the absence of sound.  It didn’t take long for the Berghuis decision to come around and bite the Court in the butt. 

Texas then argues that silence wasn’t merely silence, but the lack of a response coupled with physical cues, nonverbal response, which was in fact a response to the police questioning, even if not in so many words.  But the respondent’s best trick is the rhetorical characterization of Salinas’ silence as “selective, transitory silence.” 

Having seized the opportunity to extensively answer questions to the extent it served to exculpate him from the murders, Texas argues that his “selective, transitory silence” in the face of a question Salinas, knowing that he had no good answer, was itself damning.  And indeed, the cops happened on a question with no good answer, and his silence was heard loud and clear.

The problem with Texas’ argument is that Salinas’ silence is precisely the nature of self-incrimination that the 5th Amendment is designed to protect.  While it may well be “unfair” to the prosecution that a suspect can have it both ways, providing answers when it serves his interest and silence when it doesn’t, the Constitution isn’t a guarantee of fairness to the prosecution, but a reservation of rights to the individual.

The defendant’s argument, on the other hand, that pre-custodial interrogation silence creates a dilemma ignores that it’s a dilemma of his own making. No one made Salinas answer questions happily before his sudden silence. No one prevented him from expressly invoking his right to remain silent. It may be counterintuitive to do so, as it begs for arrest, but then the invocation of constitutional has long been held to require a clear and unequivocal expression.

The tie-breaker between these positions seems to come from the  amicus argument by the ACLU, that if the Supreme Court backs Texas’s position, it creates an incentive for police to manipulate the custodial setting in order to avoid having to give Miranda warnings and keep the defendant in an untenable position for as long as possible, hoping to either get a confession or silence to be used as evidence of guilt. 

In conjunction with the low probative value of silence, and rhetorical and usually ridiculous contention of how “innocent people behave,”  and the societal benefit of respecting constitutional rights, the defense position that no distinction should be drawn between pre-custodial silence and post-Miranda silence ought to take the day.  But given the Court’s opinion in Berghuis, I wouldn’t bet the farm on it.

Thinking how much fun it must be defending those poor souls held in Guantanamo Bay, Cuba? You get to wear cool uniforms and have access to all the high tech the government has to offer, right?  Well, sure, though the government still has its own idea about how this whole defending the enemy combatants thing works.

From the  Washington Post via the ABA Journal :

The military justice system at Guantanamo Bay, Cuba, which has been dogged by charges of secret monitoring of proceedings and defense communications, became embroiled in a fresh controversy Thursday when it was revealed that hundreds of thousands of defense e-mails were turned over to the prosecution.

The breach prompted Col. Karen Mayberry, the chief military defense counsel, to order all attorneys for Guantanamo detainees to stop using Defense Department computer networks to transmit privileged or confidential information until the security of such communications is assured.

Assured? That’s a curious word to use, given that some government agency, suspected to be the CIA but no one can be “assured” since they aren’t talking, accessed 540,000 emails in the defense lawyers’ directories. How exactly does one assure much of anything here?  Because the CIA says it feels really bad about what it did and will never, ever, do it again?

And then there’s this:

In February, a military lawyer acknowledged that microphones were hidden inside devices that looked like smoke detectors in rooms used for meetings between defense counsel and their clients. The military said the listening system was not used to eavesdrop on confidential meetings and had been installed before defense lawyers started to use the rooms. The government subsequently said it tore out the wiring.

So they place mikes in the defense lawyers’ meeting rooms, but it wasn’t to overhear confidential meetings? Was it for a new reality series, Stuff Enemy Combatants Say?  But not that the government says it tore the wiring out, is everything fine again and privacy “assured”?

Or what about this?

That same month, Pohl learned that the soundproofed courtroom at Guantanamo was wired with a “kill switch” that allowed an unknown government entity, thought to be the CIA, to cut audio feed of the trial to the public gallery. Pohl ruled that in the future only he could turn off the audio feed to protect classified information. But defense lawyers questioned whether the audio equipment in the courtroom had been manipulated to allow the government to monitor attorney-client conversations.

You can never be too careful with what the public hears about court proceedings at Gitmo. After all, there could be discussions of water boarding, and that would make public feel bad.

And this too:

In another controversy, defense counsel recently complained that huge volumes of work files were lost when the Defense Department tried to upgrade its network and mirror at Guantanamo the computer system that is available to defense lawyers handling detainee cases in the Washington area.

“Entire files, months of work was just gone,” said Navy Cmdr. Stephen C. Reyes, an attorney for Nashiri. “I have no evidence of any nefarious conduct, but it demonstrates again that we don’t have confidence that our files and communications are secure.”

Tech is great, except when it’s not.  Remarkably, while the defense lost its files, the government didn’t lose any of its evidence against the enemy combatants. How lucky is that?

Just because these efforts are a mere prelude to indefinite detention of people who the government is certain are bad and evil shouldn’t make anyone feel badly for the military lawyers charged with defending them under these conditions. After all, they still get to wear cool uniforms and it’s not like these Gitmo detainees are going anywhere anyway. So what if the tech isn’t working so great down there. Heck, the Cuband are all driving around in ’57 Chevy Belairs held together with duct tape, and they don’t even have FM radio. 

I just thought you ought to know.