According to the San Antonio Current, the hospital staff was under the impression Diego Martinez had been hit by a motorcycle.  After all, how else to explain his injuries?

When his girlfriend tracked him down at University Hospital three days after the arrest, doctors mistakenly said Martinez had been “admitted because he was hit by a motorcycle,” and was in serious condition. McDaniel, the lawsuit charges, “knocked out all of [Martinez’s] teeth.” Martinez also suffered “nasal fractures, trauma to his chest and abdomen, swelling in his brain, and numerous bruises and lacerations to his head, chest, abdomen, and extremities.”

McDaniel’s report claims Martinez and his girlfriend passenger both exhibited bloodshot eyes, slurred speech, and were confused when he approached the vehicle. Both, McDaniel writes in his report, stepped out of the car when he went back to his cruiser to run an ID check.

McDaniel writes that he tased Martinez in the back when he refused the officer’s commands.

“I hand cuffed the driver and pulled him from the [west bound] traffic lane where he fell,” McDaniel writes. “Driver was bleeding from a lacerated upper lip and nose where he fell on the asphalt.”

Sound like a familiar story? If so, then the picture of Martinez afterward  may remind you of another as well.



What is the possibility that a fall on asphalt could knock out all of Martinez’s teeth, not to mention cause all the other injuries he suffered?

While the police report claims Martinez was injured during a fall, his attorney Christopher Gale provided the Current a letter by John Moore, a local cosmetic dentist who wrote, “In 30 years of practice and tens of thousands of patients I have never seen this much dental, skeletal, and soft tissue damage occur in single fall to the ground.” Martinez’s injuries “required an impact far beyond a fall to the pavement,” Moore wrote.

“It is in my opinion impossible for Diego Martinez to have sustained this much damage in a simple fall and the injuries were more consistent with multiple impacts to the nose and mouth.”

Multiple impacts to the nose and mouth? But “R. McDaniel” says nothing happened except a fall, following a well deserved tase. And why is the cop called “R. McDaniel” rather than  Robert or Richie or Raspustin? 

When asked whether McDaniel was still on the force or if he had a disciplinary history with the department, an SAPD spokesman told the Current the officer name and badge number, which McDaniel wrote on his police report no less than four times, does not match internal SAPD records. SAPD had yet to explain the discrepancy as of press deadline Monday.

So the reason we lack a first name for the office in question is that SAPD says no such officer exists?  Well, not exactly.  Even though the SAPD has yet to explain the “discrepancy,” recognizing that it’s a mere discrepancy when a cop fails to use his real name or shield number on his report, the SAPD has reached a conclusion as to a more important matter:

“The incident was fully investigated by the police department and the officer acted appropriately,” said City Attorney Michael Bernard. “The lawsuit is without merit.”

Whew. That’s a relief. Otherwise, one might get the impression that the horrific  injuries suffered by Diego Martinez, from having all his teeth knocked out to nasal fractures and cuts to pretty much every part of his body came at the hands of a San Antonio police officer who couldn’t remember his name or shield number correctly.  Now we know it was just plain, old vicious asphalt.  The people of San Antonio can sleep well again tonight.

Update:  Purely fortuitously, there is a  video on the KSTP website providing a vivid demonstration of the difference between the police definition of a fall and the way everyone else defines it.

H/T FritzMuffKnuckle

 

Yeshiva University’s vice provost, Lawrence Schiffman, hired a lawyer named Clifford Rieders from Pennsylania, who has some beef with an old post of mine about Raphael Golb being prosecuted for using sock puppets. Oh boy.  His lawyer sent out this email:

Law Offices of
Rieders, Travis, Humphrey, Harris,
Waters & Waffenschmidt
161 West Third Street
PO Box 215
Williamsport, PA 17701
…

E-MAIL TO: Eugene Volovh [[email protected]]
FROM: Clifford A. Rieders, Esquire
DATE: March 13, 2013
RE: Lawrence Schiffman
CC: Professor Lawrence Schiffman

Please be advised that the undersigned represents Professor Lawrence Schiffman, previously Professor of Hebrew and Judaic Studies, New York University, Skirball Department of Hebrew and Judaic Studies, now Vice Provost of Yeshiva University.

Dr. Schiffman’s name was the subject of illegal and criminal misconduct by Raphael Golb. Your website has been provided to me as one of the locations where the criminal postings occurred.

Please confirm that within five (5) work days of the date of this email the following will occur:

1. Complete removal of the blog material;
2. Removal of index entries on search engines;
3. Cancellation of fraudulent email accounts;
4. Removal of any other mention or reference to Dr. Schiffman by Mr. Golb or anyone responding to him.

We will need your certification as to all efforts made to expunge the material.

I enclose as Exhibit 1 news release by the office of Manhattan District Attorney Robert M. Morgenthau announcing the arrest of the 49-year-old Raphael Golb for creating multiple aliases to engage in the campaign of impersonation and harassment relating to the Dead Sea Scrolls and scholars of opposing viewpoints. Mr. Golb was arrested on charges of identity theft, criminal impersonation, and aggravated harassment.

I am also enclosing as Exhibit 2 letter from Director, Witness Aid Services Unit, District Attorney of the County of New York, providing a temporary order of protection which the court issued in the aforementioned criminal case.

I am advised that Mr. Golb has been convicted and appeals denied. Unfortunately, there continue to be current blogs containing Golb’s fabricated story, as though Dr. Schiffman acknowledged or admitted some wrongdoing. I am enclosing not only a variety of sampling but also the platform, address and the blog as well as URLs.

Please contact me as soon as possible at …

He sent one to me.  He sent one to Eugene Volokh. I wasn’t impressed. Eugene wasn’t impressed. He wrote:

The e-mail from Mr. Rieders of course offers no explanation of how this is a “criminal posting[],” because of course it isn’t. Fortunately, I can tell that there is absolutely zero basis for the demand letter; other recipients of the e-mail might not be so lucky.

I generally do not publish letters sent to me, but unfounded demands such as this are an exception. This is especially so because demonstrating the unsoundness of the lawyer’s argument requires showing the entirety of the letter — both the particular language that the letter included (“criminal postings,” the demand for “[c]omplete removal of the blog material,” the demand for “[r]emoval of any other mention or reference to Dr. Schiffman by Mr. Golb or anyone responding to him,” and so on) and what the letter didn’t include (any specific explanation for why the material would indeed be legally actionable).

Eugene is much nicer than I am.  Had he not calmly and succinctly explained the email’s massive failing, I would have been constrained to respond, bite me.  I am happy to say that because of Eugene’s parsing of the unfounded email, I can maintain my dignity, merely refer to Eugene’s response, and add, “what he said.”

So, what he said.  Asshole. I’m sorry. I couldn’t resist. Eugene would never use such language. I’m so ashamed.

Update: Apparently, the plot thickens.  Just as Rieders is busily trying to sanitize the internet of arguments that might favor Golb and not-so-much favor Schiffman, it turns out that the New York Cout of Appeals (the top court in New York) has  granting leave to appeal the affirmance at the Appellate Division.  And the Order was just granted a few days ago! What remarkable timing!

It’s not over yet, at least for Rapheal Golb.

Update 2:  Yet another twist, this coming from Eugene’s new post at VC :

I e-mailed Mr. Rieders yesterday evening to ask for a comment on the matter, but have not yet heard back from him; I’ll post his response if I do get it.

UPDATE: Mr. Rieders called back and said they checked shortly before sending the e-mail, and didn’t know of anything then about the highest court’s grant of leave to appeal, or even that the petition for leave to appeal had been pending.

In light of  Ken at Popehat’s having emailed Rieders, and receiving a response that Rieders knows nothing about any email and to get lost, Rieders response to Eugene emits an unpleasant odor.

While Eugene, lawprof that he is, may bend over backwards to avoid any possibility of suggesting anything inappropriate in the absence of conclusive proof to the contrary, none of this comports with the basic expectation that before a lawyer (not an academic, or a guy with a beef, but a lawyer) sends out an email making representations that Golb is guilty and all appeals have been denied, he would have made pretty darned sure that was accurate. To subsequently not only claim that he knew nothing of the pending petition for leave to appeal, but that it had been granted two days before sending the email, is a problem.

Is it possible? Sure. It doesn’t speak well of Rieders diligence or lawyering skills, but it’s possible. On the other hand, it’s impossible to reconcile his response to Eugene and his response to Ken.

Update 3: The story shifts a little bit more with Eugene’s “correction” to his own update:

UPDATE: Mr. Rieders called back and said they checked shortly before sending the e-mail, and didn’t know of anything then about the highest court’s grant of leave to appeal, or even that the petition for leave to appeal had been pending. I e-mailed this UPDATE to Mr. Rieders to confirm it with him (I’d read it over the phone during our conversation, but I wanted to check it in writing), and he thought this summary was inaccurate; I therefore thought that I’d instead just quote what he said in the return e-mail: “[A]t the time I sent you the email, there had not yet been any posting about the appeal which we explicitly checked for and the DA had not informed us that anything was pending at yet a second appellate level.”

Why Eugene felt the need to obtain Rieders secondary approval of the update is surprising. Either Rieders said it or he didn’t, and if he said it, then it doesn’t need to be double fact checked, and Eugene doesn’t need Rieders approval to write what he said. Weird.

Still, neither Rieders nor Eugene, for that matter, offers any explanation of why he would make an affirmative representation that was flagrantly false if he didn’t know it to be accurate?

Update 4: And shortly after the above “correction,” Eugene added this to his post:

FURTHER UPDATE: Mr. Rieders e-mails to add, “In the interest of integrity you should also state that this does not dilute our original message that impersonation is improper and those who aide and abet in impersonation may subject themselves to civil liability.” It is my pleasure to quote that.

It appears that things have no come full circle, it being wonderful to see Clifford Rieders show a sudden interest in integrity, even if he struggles to grasp the meaning of the word after having falsely denied he sent the original email to Ken, on top of having actually sent such a ridiculous, ignorant and outrageous threatening demand.

It’s also good to see Eugene reminded why he had a problem with Rieders in the first place.  I hope that message is what he meant in his “pleasure to quote that” phrase. I really hope so.

Kendra Velzen was prescribed a guinea pig for emotional support, and Grand Valley State University in Michigan agreed only to waive its policy of no pets in dorms, but refused to let her bring it to class or the cafeteria.  Per Walter Olson at Overlawyered, the college settled for $40,000, and agreed that could take the critter wherever she wanted.  After all, she needed it for emotional support.

Are you happy now?

Sociologist  Frank Furedi asks whether college students are young adults or toddlers.

Even worse – according to a new report – they are pursuing a carefree lifestyle and apparently lecturers are shirking from their duty of holding their students’ hands!

A survey of anxious school teachers condemns universities for actually believing that ‘that young people are adults and can fend for themselves’. Apparently undergraduates are biologically mature toddlers! ‘18-year-olds today are a lot less robust and worldly wise,’ warns the report.

The message communicated by this survey, and its claim that because undergraduates are far from ‘robust and worldly wise’ they need support to make a transition to university life, is that young men and young women lack the moral and intellectual resources for becoming self-sufficient people.

Maybe if we just give every entering freshman a guinea pig?

Regrettably, the constant questioning of the capacity of young people to cope with life at a university has the character of a self-fulfilling prophecy. If you constantly lecture young people that life on a campus is very, very stressful and that they really need support than it is not surprising that some of them will experience life through the prism of psychological distress.

As Furedi notes, until the 1990’s, college students would have rather stuck a needle in their eye than be seen anywhere near that mommies.  Today, every professor can hear the whirl of the helicopter blade overhead as students complain that their bad grade hurts their feelings. Teacher as bully, the new frontier, except that teachers hate being called mean names too, so their foremost concern isn’t to teach, but to be liked.

Before any  butthurt genius complains that it’s all his parents’ fault for years of breeding him as a delicate flower whose every whim must be indulged and whose emotional well-being is the driving force in society, at what point does the toddler take some responsibility for his own life and emerge as a young adult?

Sadly, it’s not upon entry to law school, where emotional distress continues to manifest itself.



Yes, life is hard, and the practice of law is hard. Your emotional well-being will be tested and, sadly, will regularly fail to meet the challenge.  Is the solution to give everybody a guinea pig?

Much to the chagrin of young lawyers, they don’t find much comfort here when it comes to that bit of coddling they so desperately seek.  They really hate it when they’re called entitled and narcissistic, not because they aren’t but because it makes them feel bad. It doesn’t have to be that way.

Are you the toddler Furedi is talking about?  Are you the professor enabling the toddler?  Are the parent who steps in at the slightest hint of emotional distress so that your darling baby will never have to grow up?

Ultimately, it’s up to the the young lawyer to decide whether his  feelings matter more than anything else. You’re entitled to feel whatever you want, and the rest of the world is entitled not to give a damn about your feelings.  You can wrap yourself up in your emotions and explain why society has failed to appreciate you, care about you, treat you with the respect your feelings require, but it isn’t going to turn you into a lawyer.  And you may feel that you’re a lawyer, a wonderful lawyer, a brilliant lawyer, but it isn’t going to help you to represent a client.  Hey, clients have feelings too, you know. But then, their feelings aren’t as important as your feelings, right? At least to you.

Or maybe you really don’t want to be a toddler in a lawyer’s suit, walking around the courthouse carrying a guinea pig?  It’s entirely up to you. Neither your parents nor teachers can force you to be a toddler forever.

No name given a mobster had more of an impact than the one the tabloids pinned on former New York City police officer Gilberto Valle: The Cannibal Cop.  In the courtroom of Southern District Judge Paul Gardephe, the jury found him guilty of conspiracy, the darling of the prosecution.

Valle had sick, disgusting thoughts, and naturally found others who shared his fetish for cannibalism on the internet.  One of the features of the internet is that it allows people to find and engage with other, like-minded individuals. It’s also one of its flaws, where there is nothing too awful that it doesn’t have its own chatroom. One of the takeaways for people who don’t share diseased fantasies is that there are plenty of people who do, and they can now get together to indulge themselves.

But conspiracy, except if it involves narcotics, is nothing more than evil thoughts. To make it a crime requires an overt act, a significant step in furtherance of the commission of the crime.  Valle’s defense was that as horrible as his cannibalism fetish might be, it was just fantasy on the internet among like-minded friends.  He only thought bad things. He never did bad things.

But as the United States Attorney for the Southern District announced in his post-verdict press release, the jury saw it differently:

Today, a unanimous jury found that Gilberto Valle’s detailed and specific plans to abduct women for the purpose of committing grotesque crimes were very real, and that he was guilty as charged. The Internet is a forum for the free exchange of ideas, but it does not confer immunity for plotting crimes and taking steps to carry out those crimes.

And what “steps to carry out those crimes” did Valle take? As summed up in Slate :

What exactly did the cannibal cop do? Here’s one thing: Last May, five months before the 28-year-old police officer was arrested by the FBI, Valle met up with a friend online. The friend suggested via instant message that they work together on a story. “OK, sounds fun,” Valle said. They began to craft a tale about a restaurant that cooks and serves human flesh.

In July, Valle had another chat with a different online friend—a man called “Moody Blues.” Their conversation flowed very well. Moody Blues, a male nurse who lives in England, pretended to be a connoisseur of cannibalism: He said he’d eaten lots of women and offered up his favorite recipes. Valle responded that he’d been working on a document called “Abducting and Cooking Kimberly: A Blueprint,” and promised to send it over. That Word file had a photo of his real-life friend from college, Kimberly Sauer, and a list of supplies that he would need to carry out a crime. It also gave a set of made-up details about the victim: a fictitious last name, date of birth, alma mater, and hometown.

Sick stuff, for sure, but criminal?  Bharara, in his post-hoc effort to explain that the internet doesn’t “confer immunity,” a nifty phrase that bears no connection to the crime, the defense or the culpability for thinking sick thoughts, was talking about this:

The government also claimed that Valle had done practical, strategic research for his crimes. He’d looked up recipes for chloroform, and downloaded photos of his victims to an “organized filing system” on his computer. He even went so far as to alphabetize the list of 80 women, and then he used that list to choose his targets.

Valle googled. So it wasn’t just some fetishists talking smack amongst themselves, but a fetishist who googled.  And as Bharara says, the internet doesn’t confer immunity, and the reason for this peculiarly twisted rationale is that the overt act was googling.  Because googling sick ideas that are part of some disgusting fetishist’s online fantasy is a significant step in furtherance of the conspiracy.  Some virtual friends, horrible fantasies plus googling, and you’ve got a conspiracy and a conviction.

Note the language used in the  New York Times to describe the crime:

The prosecutors, Randall W. Jackson and Hadassa Waxman, built their case around the chats and other online messages that Mr. Valle had exchanged with three co-conspirators and what prosecutors said were other concrete steps that he had taken to bring his plan to fruition.

The United States attorney in Manhattan,Preet Bharara, said the jury unanimously found that Mr. Valle’s “detailed and specific plans to abduct women for the purpose of committing grotesque crimes were very real.”

The facts haven’t changed, just the rhetoric.  By characterizing Google searches as “concrete steps…to bring his plan to fruition,” and “detailed and specific plans,” they became so to the jury.

As I’ve tried to explain many times, crimes are often proven more by whose adjectives are stronger, more scary.  While many people search for things of interest, curiosity or fantasy, an artful prosecutor can turn them into “concrete steps” to engage in real life acts that persuade a jury, even though the steps consisted of nothing more than typing words into the search line of a browser.

For all the sick thoughts that Valle indulged, he never took a real life step to harm anyone. IRL, in real life, is a line that almost every internet user appreciates, as it distinguishes what are mere virtual ideas to something real.  The conviction of Gilberto Valle was based on an overt act that consisted of nothing more than the virtual.

The rhetoric employed here blurs the line between thought and reality.  If you search recipes for how to cook a human being, is it in furtherance of a real life plan to do so?  Does a Google search suffice to take thought from the virtual realm to real life?  The verdict in this case says it does, and the rhetoric used by Bharara shifts the ease of searching crazy things for crazy and fantastical reasons to proof that the plan was to walk out of the house, kidnap a woman and eat her.

Is it possible that Gilberto Valle would one day act upon his sick fetish? Yes, though there has yet to be any rash of cannibalism resulting from these chatroom nuts. But if computer searches and chat room bravado is sufficient to establish that he has committed an overt act, then be very careful what you Google as a few adjectives are all that’s needed to convince a jury that the virtual indulgence in ideas are sufficient to prove you’ve taken “concrete steps” to commit a crime.

While intramural battles continue to be fought among legal academics over whether somebody slipped lawprof  Brian Leiter secret IP info to out commenters at  The Faculty Lounge who supported lawprof Paul Campos, the question bubbling to the surface is whether law professors, either the tenured flavor or the budding scholars, have any business being anonymous on the internet.



At PrawfsBlawg, Howard Wasserman questioned whether it was illegal, unethical or merely wrong for a blogger to disclose a commenter’s IP address so that an anonymous (meant to include pseudonymous as well) commenter’s identity would be revealed to his “enemy.”  This, in turn, devolved into a discussion about whether academics had any justification to comment anonymously at all.

The arguments lined up nicely in two connected comments:

Why would a law professor, tenured or not, want or need anonymity to discuss or even speculate about the law? Whatever valid purposes anonymity may sometimes (hardly always) serve, that seems like an illegitimate one to me.

Posted by: Paul Horwitz | Mar 9, 2013 9:05:02 PM

Why, Paul, because when I put my name to something it’s always well thought out (sometimes after years of research, discussion, analysis, drafting, and writing), and the comments sections (as opposed to posts) of blogs are places for quick opinions given with minimal research. The question for me is why anyone would want the computer record to forever be linked to the normal hiccups that are a natural part of conversations. To demand rigorous research for each comment would shut down the type of conversational debate that I believe blogs are best for. It’s one thing to say something off the cuff in oral conversation, where one corrects and laughs it off and moves on with only those gathered in a room remembering the imprecision, and another to have an almost eternal computer error of minor analytical glitches.

Posted by: AnonProf | Mar 9, 2013 10:06:50 PM

Radley Balko named names. The first name he gave was that of Sarasota, Florida, Deputy Dominic Fornal, who first gained nationwide attention from his magical ability that enabled him to smell the scent of marijuana at 35 miles per hour, making drug dogs jealous.

Despite Dep. Fornal’s exaggerated confidence in his own olfactory senses, he didn’t find any marijuana in the car. Well, at least not after those first several searches. After about 90 minutes, Fornal turned off the microphone on his uniform. Another deputy then miraculously found a burnt marijuana cigarette. Fornal then arrested the driver on DUI charges, even though the driver’s BAC was half the legal limit.

No discipline. The only change the department made was to remove Dep. Fornal’s dash camera. Which of course would make him even less accountable.

Ten months later, Fornal is back in the news.

At the accident scene that cost him his job, former Deputy Dominic Fornal allegedly poured a bottle of liquor into a woman’s purse and then dumped the remainder of the bottle onto the floorboards of her van.

Minutes later, Fornal allegedly described one of his coworkers, Deputy James Kathman, as a “dumb ass” to a state trooper.

You’d think a prosecutor interested in justice would just drop any case that turns on the word of a cop who even fellow cops have deemed to be a liar.

And you’d be wrong.

Prosecutors are showing no signs of offering any deals in cases involving Fornal.

They sent out at least one Motion in Limine Friday — a legal maneuver that asks the court to bar defense attorneys from raising Fornal’s past stops or from introducing newspaper accounts of his activities. While the motions for Fornal have been somewhat formulaic, the new version seeks to bar attorneys from mentioning “former officers.”

So not only is the office of State’s Attorney Ed Brodsky not arresting Fornal for lying in sworn statements, not only is his office not dropping the cases in which the charges hinge on Fornal’s sworn statements, but his office is actually seeking to bar jurors deciding the guilt of people charged with crimes from even knowing that Fornal resigned from the sheriff’s department in the face of an investigation into allegations that he has lied about prior arrests.

When I read the guest post by  Peter DeFillipis over at Turk’s New York Personal Injury Law blog, it was easy to understand why a PI lawyer would want a juror to be able to ask questions.  Even though the issue arose out of the Arizona prosecution of Jodi Arias, it offers a huge advantage to the plaintiff in a civil action to learn what the jurors are thinking and satisfy their concerns. After all, in a PI case, the plaintiff has the burden of proof.

But how does this translate to the defense in a criminal case?  Gideon ponders the question at A Public Defender.

The initial knee-jerk negative reaction stems from the fear of losing control, as evidenced by what’s happening with Arias. Losing control of the defense and perhaps undoing some of the work done to that point and also losing control of the trial itself when jurors ask absurd questions designed solely to disclose their displeasure or incredulity.

On the other hand, the allure of knowing just what the jury is thinking and being given a limited opportunity to address or reinforce their doubts is far too tempting. I’d always want to know, rather than not.

According to judges and attorneys jurors did not ask inappropriate questions, and jurors did not report being embarrassed or angry when their questions were objected to. They also found that jurors did not draw inappropriate inferences from unanswered questions. Jurors remained neutral, rather than becoming advocates, when they were allowed to ask questions, and did not rely more heavily on the answers to their own questions than the rest of the trial evidence. However, jurors, attorneys, and judges did not report increased satisfaction with the trial or verdict when jurors were able to ask questions compared to when they were not.

Attorneys in the study reported that their greatest fears regarding juror questions were not realized: information they deliberately omitted was not brought up, questions did not interfere with their trial strategy or cause them to lose command of their case, nor did they prejudice their client. After the trial, both judges and attorneys in cases where jurors were allowed to ask questions said they were more in favor of allowing jurors to ask questions than did those judges and attorneys on trials where juror questions were not permitted.

Drawing an interesting distinction between “a review of computer files” and a “forensic examination” of a computer, the long-awaited en banc decision of the 9th Circuit in  United State v. Cotterman concluded that reasonable suspicion is required, reflecting a return to the underlying purpose of border searches rather than using them as an excuse for free unlimited criminal searches.

Wow.

The court rejected the “extended border search” distance argument, where the forensic examination was performed 170 miles from the border, holding that the location isn’t the critical issue.  What mattered, the majority held, was that computers were different, representing the “uniquely sensitive nature of the data” which

often retain information far beyond the perceived point of erasure, carries with it a significant expectation of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms of property.

Finally, a court has recognized that computers, devices that contain information about the most private and intimate aspects of a person’s life, do not become fodder for the government under a rule devised to keep infected fruit and untaxed diamonds from crossing the border.

From the majority opinion by Judge Margaret McKeown:

The relevant inquiry, as always, is one of reasonableness. But that reasonableness determination must account for differences in property. Unlike searches involving a reassembled gas tank, or small hole in the bed of a pickup truck, which have minimal or no impact beyond the search itself—and little implication for an individual’s dignity and privacy interests—the exposure of confidential and personal information has permanence. It cannot be undone. Accordingly, the uniquely sensitive nature of data on electronic devices carries with it a significant expectation of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms of property.

After their initial search at the border, customs agents made copies of the hard drives and performed forensic evaluations of the computers that took days to turn up contraband. It was essentially a computer strip search. An exhaustive forensic search of a copied laptop hard drive intrudes upon privacy and dignity interests to a far greater degree than a cursory search at the border. It is little comfort to assume that the government—for now—does not have the time or resources to seize and search the millions of devices that accompany the millions of travelers who cross our borders. It is the potential unfettered dragnet effect that is troublesome.

The point is that the level of intrusiveness involved in what the court describes as a “forensic search,” breaking password protected data and searching the deepest, darkest regions of the hard drive for deleted data, is a probe of a different color than is justified by the border search exception.

This is a critically important analysis for two reasons. First, that it reflects a return to the purpose of border searches rather than an extension of the rule without recognition of the rubric.  The border search exception was never meant as a free search for criminal conduct, but as a means of controlling dangerous items that might be brought into the country. As happens so often, the rule swallowed its purpose and became disconnected from the rationale that justified it in the first place.

More importantly, however, the court’s decision recognized that the digital world is different, and searches of computers cannot simply be determined by application of centuries old rules for physical-world things.  Indeed, to the extent a fair analogy can be drawn, computers are “akin to reading a diary line by line looking for mention of criminal activity—plus looking at everything the writer may have erased.”  It’s been a very long time since a court remembered that personal diaries are sacrosanct.

If there is any problem with the decision, it comes from the option given border guards in determining when a deeper probe is warranted based on the dreaded “totality of the circumstances.”  While the majority held that password protection, per se, is not sufficient to create a reasonable suspicion, it is a factor.

The en banc court wrote that password protection of files, which is ubiquitous among many law-abiding citizens, will  not in isolation give rise to reasonable suspicion, but that password protection may be considered in the totality of the circumstances where, as here, there are other indicia of criminal activity. The en banc court wrote that the existence of password-protected files is also relevant to assessing the reasonableness of the scope and duration of the search of the defendant’s computer.

This test tends to favor the artful structure of a post hoc argument by the government, taking otherwise insignificant details, breaking them into their smallest components, and creating the appearance of nefarious suspicion from otherwise utterly ordinary human conduct.  Indicia of criminal activity is often less a matter of illegal conduct than how deftly a prosecutor can describe it.

In a side issue, the Cotterman decision burned the government’s tactical approach to the case. As Orin Kerr notes at Volokh Conspiracy ,

DOJ has generally refused to argue that there is reasonable suspicion in order to keep open Supreme Court review if/when the Ninth Circuit takes a narrow view of the exception. Specifically, DOJ has wanted to avoid the situation in which the Ninth Circuit establishes a reasonable suspicion standard, finds reasonable suspicion, and thus prevents DOJ from being able to file a cert petition to reverse the Ninth Circuit’s conclusion that reasonable suspicion is required.

In the en banc decision today, however, the Ninth Circuit goes on to determine that there is reasonable suspicion and that DOJ therefore wins the case. That is, after holding that reasonable suspicion is required, the en banc court goes on to say that reasonable suspicion existed to search Cotterman’s computer and thus that DOJ wins and the district court has to deny the suppression motion. Ordinarily, then, this would mean that DOJ cannot seek further review: After all, it won the case.

It’s still possible that the government can seek review of the underlying issue under Camreta v. Greene, where the Supreme Court suddenly ignores the Article III case and controversy concerns for the benefit of sad government officials.  If not, then expect this issue to be fought on Second Circuit turf.

Eventually, it will make its way to the Supreme Court, assuming the other circuits recognize the merit of the 9th Circuit’s approach. Hopefully, the justices will finally come to the realization that borders aren’t an excuse for unfettered criminal conduct searches, and that computers are unlike anything that ever existed before in the physical world.

Update: In a new post, Orin raises some  very interesting questions about the distinction between what sort of manual search is allows and where the line should be drawn.

Most users think of computer searches as occuring at the virtual level, because that’s the user experience. But computer forensic software works at the physical level: it treats the hard drive as a physical device that contains millions of zeros and one, not as a virtual “box” of information accessed through an operating system. User profiles and most password protection operate only at a virtual level, so a goverment forensic analyst operating at a physical level wouldn’t even notice the difference unless he was specifically looking for it.

So what does the Cotterman decision allow in the absence of reasonable suspicion, and where is the line drawn? Even if it’s a simple division between virtual and physical, just how far can a virtual search go? If there are 50,000 accessible files on a computer, can a border agent look at every one, even if it takes days? If a file is password protected, can he try to crack the password by chance for a week or two? Where is the line drawn? Cotterman leaves that unclear.

When medical students learn to practice, they first cut into cadavers.  Now that law schools are trying to get into the act of skills training, they are trying to follow in the med schools’ footprints, except they cut into the poor.  The poor bleed, just like the law students.

In a pair of pieces that unintentionally juxtapose a problem, the New York Times has an  op-ed by Lincoln Caplan on the 50th Anniversary of the Supreme Court’s Gideon decision, holding that the right to counsel in criminal proceedings requires that poor defendants be given a lawyer. Here we are, 50 years later, and there are some courts in this country that have yet to read the opinion.

Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.

Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm. In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers. In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes.

Probably less interesting to most people who have yet to find themselves in the well than who will be the next person fired by Donald Trump (Omarosa? Seriously?).  And thus, it should come as no surprise that warm bodies flow through courtrooms to jails and prisons without ever knowing what Clarence Earl Gideon did for them.

Which brings the next story, about Arizona State University’s law dean, Douglas J. Sylvester’s, epiphany to a place it wasn’t intended.

When Douglas J. Sylvester, dean of the law school at Arizona State University, was visiting the Mayo Clinic in Minnesota a couple of years ago he mentioned the shifting job market for his students — far fewer offers and a new demand for graduates already able to draft documents and interact with clients.

The Mayo dean responded that his medical students and graduates gained clinical experience in hospital rounds closely supervised by attending physicians.

“I realized that was what we needed,” Mr. Sylvester recalled. “A teaching hospital for law school graduates.”

What a cool analogy! Who doesn’t love cool analogies? But then, the relative cool is only proportional to how well it fits the situation.  Fewer jobs for law students plus a demand for grads with skills are certainly concerns. But not the only concerns. Maybe nobody told Dean Sylvester? I bet he knew.

There was still the problem of obscenely high and wholly unjustifiable tuition, milking applicants and their doting parents at their most vulnerable and ignorant, courtesy of lovingly offered tuition loans. If they used glorious adjectives about the back end of law school, maybe nobody will think too hard about the cost at the front end.

Then there is the numbers game of supply and demand.  Even if the law school grads are more skilled than before, there is still inadequate paying demand for them.  Twice as many are being churned out as needed, and even if they are in a better position to hang a shingle because they can’t get a job, even solos need clients.  Do clients want lawyers with skills? Sure. Does that mean that there are enough paying clients out there so that every grad can hang out a shingle? Nope. Well, they can, but they will grow very, very hungry.

It seems as if Dean Sylvester would be able to do the math. I bet his math is great when contract negotiations time rolls around, so why not now?  The only reason I can come up with is that the opportunity presented by Gideon’s failure, that there are vast numbers of unrepresented Americans compelled to face a criminal court, giving the impression of a need and a chance to practice law.

It’s a bad analogy.  These people need lawyers, desperately. These people deserve lawyers, because the Constitution provides for their right to be represented by counsel.  And lawyers are not being provided as required. Not even close.  But these aren’t lawyers. These are law students. These are fresh-faced, unjaded, highly-motivated and utterly clueless law students.  And the analogy suggests that they make their very first cut on a living, breathing human being.

Does it hurt less if the person is poor?  Will they bleed less?

And after the clinic, or intern, or whatever rebranded name is placed on the notion, comes to a close, there will still be no jobs for these law students who have now joined the ranks of unemployed graduates. They can open their 50,000 new law offices and the only phone calls they will get will be from copier salesmen and legal marketers. If they’re lucky, they will get a few calls for free answers and some pro bono representation. Paying clients? Well, not so much.

As for the poor, bleeding on the courtroom floors across America, they will still be poor, still be bleeding, but maybe have an eager, beaver law student explain that her professor says that the 4th Amendment  requires the evidence be suppressed because they have no warrant, so they should go for it.  So what if its a bit naive and less than a thorough legal analysis. The price was right, and it makes for good practice for the law student.

Lest you feel too badly for the poor defendants sacrificed on the alter of law school tuition and expediency, bear in mind that soon, both the poor defendant and the poor law grad will both be bleeding together. 

When Windows was introduced, I told Dr. S.J. that it was the death of understanding.  Before Windows, a computer user needed to know DOS commands or he couldn’t make the box work.  By knowing DOS commands, typed in carefully at the C prompt because an errant letter meant the computer either wouldn’t have a clue what you wanted or would do something entirely undesired, like launch thermonuclear war, you had a basic understanding of how computers functioned.

But when a double click on an icon was all that was required, anybody could use a computer. Click on the pretty picture and, boom, you too were a computer user.  It changed everything.  On the bright side, it created a world where computers became central to our existence. On the dark side, any idiot could use one, despite having no comprehension of how it happened.

A conference just ended in Silicon Valley called Reinvent Law.  A bunch of people who share a remarkably uncritical view of the power and influence of technology took the stage in order, with the hallelujah chorus singing behind them. Not really singing, but a digital version created without a single human voice. They are believers talking to other believers, and like the people who applauded the introduction of Windows and the demise of DOS, they propose a panacea where no one need know anything ever again.

They will vehemently deny this because they believe that what they are doing is good and true, and that they are motivated by the best of intentions.  There was a talk of Google cars, the ones that drive themselves without any need for a person to steer or break.  Once perfected, I have no doubt it will drive better, safer, than any person possibly could. And it will spell the death of human driving, a risk society will no longer accept.  Yet another human activity that will not only become unnecessary, but unacceptable.

The Reinvent Law conference offered the insight that 58% of judges have an iPad.  The final presentation was about the paperless office, the one we started talking about in 1993. They still think they’ve discovered the death of billable hours, and believe that law can be reduced to algorithms. Point and click law.

There are big issues and small issues. The advent of computers was big. Big beyond our wildest imagination.  The introduction of Google cars will be big too. Huge. 

Most of the rest is rather puny, more tweaking around the edges than game-changing. 

But what isn’t puny, yet isn’t recognized, is how any of this makes the law work the way the platitudes say it works.  There are ideas that will deliver mediocre legal services to those unable to afford it now.  Windows for the under-represented.  And when they go to court to vindicate their rights, they will still see judges sitting on benches. The judges will have iPads, but they won’t be any less biased. They won’t be any smarter. They won’t rule by algorithm. And the under-represented will still lose.

The fear is that much of what is being promoted as the future of law will actually come to pass. We will have those paperless offices where we sell virtual legal services unbundled like the widgets they can be.  And the prisons will still be filled with people whose computer programs told them they should be free.

It’s not that the people involved in all of this aren’t smart. Indeed, these are some very smart, very dedicated people, but they don’t see the law.  Dreams of technological change may be very exciting, but to what end?

Marketing guru Seth Godin fortuitously posted this today :

When I was starting out in the software business in 1983 (gasp), our home computer of choice was the Commodore 64. I vividly remember one day in the playtesting lab when the overworked floppy disk drive burst into flames. The surprising thing was that none of us were surprised. The entire infrastructure of the time just barely worked.

Twelve years later, on a sales call at Levi’s ad agency in San Francisco, in the middle of a presentation, my PC laptop started spewing smoke. I didn’t miss a beat. I shrugged, closed the cover and dropped it into a trash can.

Today, nothing is starting on fire. Today, a well-designed app looks fabulous, polished and stable, even though it was built by one person, in a garage. Today, email gets through. Today, we have a platform that (almost always) does what it says it will. We’re all on the same OS (the internet). We can expect that any person we’d like to do business with, anywhere in the world, has a device we can use to reliably communicate with them…

If you’ve been waiting for the next big thing before you dive in, it’s here.

For all our miraculous advancement, we end up with such a puny outcome as this, twitted by baby lawprof Josh Blackman:

At #ReinventLaw speakers read notes from smartphones, not index cards. #MineWasImpromptu

— Josh Blackman (@JoshMBlackman) March 9, 2013