So you’re in Maricopa County, driving along, just fine, and the cops pull you over. Busted.  Via Reason :

An Arizona appeals court has ruled that motorists don’t actually have to be under the influence to be prosecuted for driving under the influence.

Via the Associated Press:

An appeals court has issued a ruling that upholds the right of authorities to prosecute pot smokers in Arizona for driving under the influence even when there is no evidence that they are actually high.

Ironically, while the law is facially absurd, the ruling of the Arizona Court of Appeals is completely logical.

Our legislature has determined it is unlawful for a person to drive a vehicle while there is any drug, as defined in A.R.S. § 13-3401 (2012), or “its metabolite” in the person’s body. A.R.S. § 28-1381(A)(3). This statutory prohibition “was enacted as part of Arizona’s comprehensive law regulating drivers under the influence of intoxicating liquor or drugs (“DUI”) and designed to protect the public by reducing the terrible toll of life and limb on our roads.”

The crime isn’t driving while intoxicated. The crime is driving while having a metabolite in one’s blood, even though the metabolite bears no connection to being under the influence or inability to drive safely.

The metabolite was a remnant of old marijuana use, possibly up to four weeks prior, and itself bore no connection to being high or compromising ability.  In other words, having the metabolite in one’s blood meant nothing when it came to being fully able to drive safely.  What it did mean, however, was that sometime in the prior four weeks you smoked pot.

In Phillips, the defendant challenged the facial validity of A.R.S. § 28-692(A)(3) (1994) (now § 28-1381(A)(3)), arguing it was unconstitutionally vague and overbroad. 178 Ariz. at 370, 873 P.2d at 708. We disagreed, noting that the legislature intended to create a “per se prohibition” and a “flat ban on driving with any proscribed drugs in one’s system.” Id. at 372, 873 P.2d at 710 (emphasis added). We determined that the legislative ban extends to all substances, whether capable of causing impairment or not.

Crazy as the outcome may seem, it is the logical outcome if one separates the law from its true purpose. As the court of appeals held, the law imposed a “flat ban on driving” after one smoked pot, even if it was long out of one’s system but for the metabolite it left behind.

The question is whether this is the crime the legislature intended to create, or rather somebody, in their zeal to not let anyone escape conviction by arguing that the evidence of drug use was merely a metabolite rather than the active chemical, crafted a law that criminalized something well beyond what any rational law would demand.

In other words, the outcome of the law is ridiculous, but the problem isn’t that the court interpreted the law wrong, but it was just a bad law.  In Arizona. Who would have guessed?

At the same time, the Court of Appeals wasn’t constrained to reach this decision, separating the purpose of the from its effect.  Due process and equal protection analysis would have allowed the court to reject slavish adherence to strict construction of the legislative language by holding that a law that criminalizes conduct that is distinct from the evil the legislature sought to cure is overbroad and vague.

Did the Arizona legislature really mean to create a punishment for all people who have a nonactive pot metabolite in their bloodstream without regard to their ability to safely drive a car?  The language could be read that way, but the justification for the conduct being criminal, living in a post-pot stage for whatever period of time it takes for a metabolite to dissipate from the blood stream, is the protection of lives on the road. Does it do that?  Nah.

Perhaps the court was trying to embarrass the legislature into crafting better laws by making such an absurd ruling. Perhaps they hate pot smokers so much that they want to criminalize their very existence, without regard to whether they present any risk of harm to anyone.  This is Arizona, the land of crazy law and wild courts, so who knows?

And yet, driving sober in Arizona without four weeks of smoking pot is a crime. Guide yourself accordingly.

Update:  The Arizona Supreme Court has reversed, holding that you have to actually be high to be prosecuted for being high, rather than have metabolites in your blood. This further proves that not everybody in Arizona is totally nuts.

H/T FritzMuffKnuckle

The Supreme Court, in a 6-3 split decision, figured out something that the Second Circuit couldn’t: no rubber band can stretch a mile.  In Bailey v. United States, the Court held that Chunon Bailey’s seizure about a mile away from an apartment where a search warrant was being executed wasn’t close enough.

Before anyone says “duh,” bear in mind that this wasn’t the outcome below, and failed to capture the votes of three justices.  The problem wasn’t that these jurists were distance impaired, but that their vision was fuzzy by one critical fact: they guy was guilty.  That’s when the pull out the balancing test.

As the  New York Times editorial explains:

[O]fficers in a small New York town got a warrant to search for a handgun in an apartment allegedly used by a drug dealer. Detectives conducting surveillance observed two men, both matching a description of the dealer, get in a car near the apartment. The detectives followed the car for about a mile before making the stop. One of the men was Chunon Bailey. The officers handcuffed both men and drove them back to the apartment. The search team found a gun and cocaine. One of Mr. Bailey’s keys fit the apartment door. Mr. Bailey was convicted of drug trafficking and gun possession, and sentenced to 30 years in prison.

The Court of Appeals’ mistake, echoed by the dissent, was to replace that straightforward, binary inquiry with open-ended balancing. Weighing the equities—Bailey “posed a risk of harm to the officers,” his detention “was not unreasonably prolonged,” and so forth—the Court of Appeals proclaimed the officers’ conduct, “in the circumstances presented, reasonable and prudent.”

The Court of Appeals read Summers’ spatial constraint somewhat more promiscuously: In its view, it sufficed that police observed Bailey “in the process of leaving the premises” and detained him “as soon as practicable.” 652 F. 3d, at 206 (emphasis deleted); see also post, at 6–7. That has pragmatic appeal; police, the argument runs, should not be precluded from seizing the departing occupant at a distance from the premises if that would be safer than stopping him on the front steps. But it rests on the fallacy that each search warrant entitles the Government to a seizure incident to the execution of a warrant “is not the Government’s right; it is an exception—justified by necessity—to a rule that would otherwise render the [seizure] unlawful.”

Who doesn’t hate a promiscuous reading of spatial constraints?  Throwing its editorial heft behind the decision, the Times stated:

But the Supreme Court rejected that ruling, noting that distance from the scene matters. Detentions made away from the place being searched “resemble a full-fledged arrest,” Justice Anthony Kennedy wrote in the majority opinion.

Resemble?  As in “she has her mother’s eyes” resemble?  That the majority even goes there is disturbing, even though it ultimately reaches the right result. 

The flavors of seizure of a person have come to rival Baskin-Robbins.  When police seize a person, who is then not free to exercise his constitutional right to walk away, he is arrested. When the slap on cuffs and unceremoniously put him in the back seat of their cruiser. he’s arrested.  Even if they don’t smack him around in the process, he’s arrested. How did we reach the point where police can do as they please with a human being’s body and it’s something shy of an arrest?

The answer is unfortunately simple: when you humpty-dumpty the characterization enough, concepts that demand to be clear, such as arrest, fall into the beloved rhetorical black hole of “reasonableness.”  Mangle the details a bit and throw in a few pointed adjectives, especially from the perspective of the police, and pretty soon everything sounds fairly reasonable. And obvious reasonable is better than unreasonable, right?

Well, not according to Scalia, who cuts through the malarkey to get at the only real point raised by the case, and yet somehow not factored into the ruling except by his co-concurrers, Justices Ginsburg and Kagan.  The test isn’t wiggly line, subject to balancing and the rhetoric of reasonableness.  It’s a search warrant.  It’s the authorization to search a premises, not to seize people wherever they may be.  That they get to nab people inside the premises, or in the immediate vicinity is a gift, not an entitlement.

Just because Summers gave the cops one free ride doesn’t mean they get to ride forever.  Even the Times doesn’t seem to grasp that each step on the slippery slope doesn’t give create a new government entitlement, only to be extended at every opportunity.

Bailey would have seemed to be one of the most straightforward suppression cases possible, his being arrested a mile away from the search, and yet it took a split Supreme Court to figure out that it was a bust too far.  Even so, six justices fail to appreciate that sometimes the government just can’t do anything it pleases even if they use the word “reasonable” enough.  Sometimes, a line has to be drawn.

While it’s not exactly clear where that line is drawn, at least we now know that a mile is beyond it. Duh.

In a  recent post revisiting the Aaron Swartz case, Orin Kerr noted (I think with some humor) a quote of his, in a remarkably ill-conceived post by my  favorite Slate legal pundit, on the 9th Circuit’s  Nosal en banc opinion being “superb and extremely insightful.”  The “inside joke” of the quote is that all ideas are “superb and extremely insightful” if we agree with them.

This brings me to a post by Orin that every thinking person needs to read, subtly entitled Brilliant People Agree With Me.

One of the consequences of confirmation bias is that we are overly impressed by ideas that we happen to share. It’s a natural instinct, if not watched carefully. If you read something that reflects or resonates with your own views, you’ll agree with it. Upon agreeing with it, you’ll think it is highly persuasive. And if it’s highly persuasive, it’s probably brilliant. You see this often in the blogosphere when bloggers link to someone’s “superb” and “extremely insightful” post. You click on the link, and you’re underwhelmed by the post. But you realize it is strikingly similar to what the original linker thinks about the topic. It’s possible to take our blinders off, or, more realistically, to minimize them. But it often requires some work, and the amount of work that different people give varies considerably.

I explained before why brilliant people agree with me. I want to talk about the other side of the picture. I’ve come to the realization that people who disagree with me are just arguing in bad faith. How do I know? Well, when I get into an argument, no one who disagrees with me ever says anything I find persuasive. They never even come close. It seems to me that if a person who disagrees with me were smart and acted in good faith, surely he would say something that persuaded me (even if only a little). But since that never happens, people who disagree with me must be either stupid or acting in bad faith. I’m a generous person, so I won’t assume the other guy is stupid. And that leads me to conclude, reluctantly, that people who disagree with me are arguing in bad faith.

But what about lawprofs? Aren’t they entitled to a little happiness too?

Backing up yet another effort to justify the value of legal scholarship, this time by lawprof  Tamara Piety at the  Faculty Lounge, which was met with some less than enthusiastic support by the poor disgruntled students and new lawyers who feel that it comes on their backs and at their expense,  Michael Mannheimer offers his views a PrawfsBlawg.

Coming out swinging, Mannheimer notes that the Philistines attack because of the cost of legal scholarship, while Piety’s arguments deal with their value and utility. Legal academia still smarts from smacks like that handed out by Chief Justice John Roberts, who made it clear that legal scholarship was a bore less than useful to judges, exacerbated by the latest efforts to defend the value of law faculty without practice experience charged with teaching students how to practice law. 

Her defense of scholarship is well inside the box. Sometimes it can useful, and besides, the baby was always ugly. So there. So what if the useful scholarship is overly burdened by obtuse jargon and 10,000 words too long? If there is one in a hundred that furthers legal thought, isn’t that worth it?

Her defense of academics who don’t practice, on the other hand, is lame, but then it was always a silly argument. Of course practice experience in the hands of a good teacher makes them better able to impart their knowledge to students. Too many words have been murdered on this obvious point already.

In contrast to the wasted effort of arguing a lost cause, Mannheimer spills the beans (which I’ve broken into multiple paragraphs for readability):

In addition, most of the professors I know at non-elite institutions are like me:  we went into academia because (1) we love teaching the few areas in which we have a real expertise and interest and (2) we love writing about them.  If I didn’t do scholarship and were weighted down teaching classes in which I have no interest, academia starts to look a lot like practice:  a 60-80 hour work week doing something I don’t particularly enjoy. 

But there’s one big difference:  in practice, I can do things I don’t particularly enjoy for a lot more money.  Most law professors at non-elite schools make far below their market value.  The trade-off is that we do what we enjoy, set our own research agenda, and have flexible hours.  Take that away and being in academia is not worth it. 

So, at least as far as the non-elite schools are concerned, faculty who can leave academia and get better pay will do so; those who can’t will put in as little effort as possible; and, perhaps most importantly, those schools will stop attracting faculty who go into academia as a choice and attract only those who do so because they can’t make it in practice.  As mediocrity of the faculty increases, of course, the salaries they demand should go down, which should lower tuition.  But that’s like saying that it’s cheaper to eat at McDonalds than at the Corner Bistro.

There’s the rub: lawprofs do what they enjoy doing.  Aren’t they entitled to be happy? Aren’t they entitled to leave a job they dislike, perhaps even hate, to take their place in the Academy where they do only what brings a smile to their face?

It’s not that they don’t love teaching, but that love teaching only those things they love to teach. Aren’t they entitled to only teach courses they love to teach? Isn’t their happiness more important the loading them up with teaching assignments in areas they “don’t particularly enjoy,” that would make them sad? Do you want a sad lawprof? 

They get to do only what pleases them. They get a paycheck while being free to indulge their interests. They have “flexible hours,” which smells remarkably like work/life balance. It makes them happy. Don’t you want them to be happy?

Take that away and being in academia is not worth it.

Then comes the fist in the velvet glove. They aren’t being happy for themselves, but for your benefit, grasshoppers. They are sacrificing horribly for you, forsaking the great wealth they would command in the legal marketplace for the pittance they receive as scholars.  And if they weren’t otherwise happy, they would flee en masse back to the trenches, where they would be miserably rich, leaving students in a cesspool of mediocrity.

And if law schools are staffed by cheeseburgers, as opposed to steak au poivre, tuition may well go down, but only because you’re buying off the dollar menu.  Who knows that’s in those burgers?

No doubt some lawprofs could command a mighty fine salary in the marketplace. But there is a great deal of doubt that most could. Indeed, there’s a pretty good argument to be made that few could survive practice, But since this claim is untested, there never having been a mass exodus from academia into practice, it can’t be proven. At the same time, neither can the lawprof myth that they are financially undervalued, which remains an article of faith in the academy, and a foundation upon which many of their rationalizations are built.

Yet it’s the manifestly cavalier concern for their own pleasure is what pisses everyone off, and Mannheimer appears completely tone-deaf. No, debt-laden law students and unemployed new lawyers really aren’t more concerned about your happiness than their misery.  To be frank, nobody feels particularly badly for the lawprof who is forced to teach a class that doesn’t interest him.  Big boys and girls do what they have to do, even when it isn’t fun. 

While it’s long been suspected that the stalwarts of the  legal academy’s resistance to change was just a matter of protecting a job and lifestyle made them happy, Mannheimer now confirms that it’s true.  Out of the closet in the Ivory Tower emerges the Slackoisie, entitled to a life that pleases them.  Your life sucks? Too bad you’re not them.

The irony is the threat, that absent the entitlement to a life of scholarly and financial pleasure, the law schools that have sucked the joy out of so many young people would collapse, leaving them at best to be trained as auto mechanics in the law.  Maybe it’s time to test this theory, to see whether academia is worth it, whether lawprofs could go to the trenches and command vast, even if miserable, wealth. I suspect their dreams of grandeur might be so easily fulfilled, and that they will come to appreciate how fabulous their life in the academy has been.  And I suspect they will be more than happy to teach an additional class, maybe even two, rather than have to face the harsh reality of practicing law.

Maybe then, tuition will come back down to earth. Maybe then, students will no longer be taught the practice of law by a prof who once read a book about it. And by the way, when your car is broken, what you need is a damn good mechanic. Don’t look down on them.

No clue what happened or why this individual became the focus of police attention, but the visuals are pretty clear.  It raises a question, however. Are all perps so darn tough that they require so many police officers to beat them at once? 

Wouldn’t just one or two be enough to teach a lesson to a person who is laying on the ground in a submissive position?  Or do cops just do such a really awful job beating people that it takes so many? Just asking.

Apologies for the background music. Inappropriate and unhelpful.

At  Popehat, Ken wrote a post addressing the question of blawger credibility. After all, blawging has been around for a while now, with bloggers like  Patterico celebrating ten years,  Wally Olson coming on 37 (just an estimate as he was the first blawger), and even me passing six.  Are we still perceived as crackpots typing furiously in our bathrobes in the middle of the night?

Despite how mainstream bloggers have become, and despite the fact that almost all “mainstream media” outlets have their own bloggers, the prevailing attitude seems unchanged in more than a decade: bloggers, we’re told, are unreliable, biased, wild-eyed pajama-clad basement-dwellers.

We’ve been told to think that people who went to journalism school, who write or talk for established media outlets, who are clad in the garb of media-officialdom, represent some sort of neutral-and-reliable baseline, and that bloggers are somewhere below that. But it’s fallible humans all the way down, my friends. The notion that someone is trustworthy or honest because they landed a job with an old-school media outlet is, to be blunt, laughable.

It may be laughable to the cognizanti, but it’s hardly a laughing matter. While “journalists” protect their turf by noting their J-school credentials, their legal protections and the ethics of their profession, the most significant element of their credibility is that someone, for whatever reason, decided to let them write for a publication that is publicly perceived as credible. 

If it’s in the New York Times, it must be real, because the Times wouldn’t let some nutjob or ignoramus put words on its pages.  Too old school an example? Fair enough. What about Slate, one of the most widely regarded online source of information.  After all, Slate posts all about criminal law matters, in the capable of hands of Justin Peters, at the cutting edge of respectability,

And yet, when Peters wrote about Aaron Swartz in Slate, it commanded  enough authority that it was  immediately picked up by the blawgosphere.  Had this same fellow not written for Slate, but rather on a blog of his own or for one of the many self-proclaimed investigative journalist websites, no one would have known or cared. Peters has no personal credibility, but enjoys basking in the reflection of Slate’s. 

Ken concedes some of the negatives heaped on blawgers, but questions whether the people hired by mainstream media are above those same questions:

Are bloggers wild-eyed? Sure. Some of us are nuts. But check out the sort of people that “mainstream media” hires. This week’s example — local news writer Kathleen O’Brein Wilhelm, who as far as I can tell thinks deer can’t read because Obama kills babies, and offers deathless lines like this: “Words are fun and worth clearly stating, in English if in America, and with an opinion that is yours because it’s good to have an opinion.” Too obscure a media outlet, an exception that proves the rule? Well, you could go with the crazy Suzi Parker of the Washington Post, whose crazitude led her breathlessly to report satire about Sarah Palin as fact.

It’s easy to point to anecdotal evidence of crazy and incompetent writers working mainstream media, but that doesn’t entirely address the question. The problem is that, more than ten years later, why do all blogs remain in the vast credibility limbo?  Even the most serious and respected lawprof blawgs, where no one ever cracks a joke or has any fun, desperately strive for credibility in that needy fashion that academics do so well.  Why?

It’s long been my view that blawgs, law blogs, are the greatest peer reviewed content every created.  If a lawyer writes something incorrect or foolish, there are innumerable similarly educated and experienced people out in the ether to correct him, whether kindly or by ripping his lungs out. Either way, words put out for public consumption are subject to criticism from all quarters. Why not?

This is a good thing. No, a great thing. With every post, we either pass muster with our peers or get ripped to shreds. And that’s how good thought triumphs over ignorance and stupidity.  It’s different for non-lawyers who write about the law and post inaccurate and utterly insane nonsense. If people choose to get their legal information and analysis from non-lawyer self-proclaimed nutjobs, that’s their choice. It’s a big internet, and there is a point of view that confirms everyone’s, no matter how wrong.

But when it comes to law, whose deep and thoughtful views would merit greater credibility: those of a lawyer with significant experience in the field, or those of a kid journalist who was doing the Trend beat two weeks ago and became an overnight expert because a credible news source handed him the keys to their crime beat? 

Too stark a comparison? Fair enough. What about a lawyer, but one who has never seen the inside of a courtroom, represented a living human being or had to cross a witness?  Smart, Educated. Well-spoken. Just not real. Such pundits are out there, you know, offering expert commentary on matter about which they’re not exactly experts. And yet, we believe them.

As Ken argues that blawgers may be nuts, but no more nuts than the journalists who staff the legitimate and credible institutions of media, I argue the alternative.  Blawgers may never get the attributed credibility that a Justin Peters gets for having been tapped by Slate to write on a subject about which he knows nothing, there needs to come a time when they receive the credibility they’ve attained on their own. 

Without the trappings of a New York Times, ABC or Slate, there is good, credible work being done in the blawgosphere, whether in pajamas or suits and ties.  And some of it is just as solid, if not more so, than anything you’ll find on dead trees or airwaves.  It’s time to give it a little respect.

A computer is more like:

1. A safe
   
2. A file cabinet
   
3. A suitcase
   
4. A garbage can
   
5. A computer

The answer to this question will determine whether you spend a lengthy period of time as a guest of the federal government at one of their lovely vacation spots.  When it comes to technology, the question of which precedent to apply is based largely on which analogy a judge prefers, which in turn is based on either a judge’s grasp of technology, which is not always the same as, say, more attuned users, or the analogy that produces the desired result.

At Volokh Conspiracy, Orin Kerr has dredged up an old Kentucky opinion from 2003, United State v. Morgan, denying suppression of child porn. Yes, child porn was there even back then.  Morgan tried to eliminate the images from his computer, using a program called “Internet Eraser.”  His wife, who suspected what he was up to, used a program of her own that took a screen shot every 10 seconds. She wasn’t pleased with what she learned, and ratted her husband out.

While Morgan’s wife turned over his computer, and as a common user, consented to the search, the court added this:

By attempting to delete the images, Defendant relinquished any expectation of privacy he had in the images themselves. See California v. Greenwood, 486 U.S. 35, 37 (1988) (Defendant has no reasonable expectation of privacy in his curb-side trash). . . . [B]y attempting to delete the pornographic images, Defendant was in essence, trying to throw out the files. In that regard, the facts are similar to Greenwood and its progeny. For these reasons, the Court concludes that Defendant’s relinquishment of any reasonable expectation of privacy in the pornographic images by attempting to delete the images is an alternative basis for denying the suppression motion.

Yes, remember the old abandoned trash approach of Greenwood, except that the object there was actually abandoned trash? Are deleted computer files the same? Obviously not, but the problem is the resort to analogy to pigeonhole technology.

Whenever these issues arise, the geeks want to argue technical jargon while the government wants to pull out analogies involving horses and buggies. The reaction is often an approach that suggests that technology has killed any expectation of privacy regardless of who is engaged in the debate.

What’s interesting here is that this old opinion reflects how we now find ourselves  down a road where there is no winning, how the flawed comparisons have served to create a secondary body of law with regard to technology that wasn’t sound to begin with and, given how a bad argument once adopted blindly perpetuates itself, hasn’t gotten any better with age.

What are the chances that the courts will wake up one day and come to the realization that technology cannot be accurately analogies with anything, that it is a fundamentally different medium and requires a new, sui generis, approach?  About as good as the  court finally admitting that drug sniffing dogs aren’t magic.

The scholarship behind these decisions hasn’t helped much.

There have been  numerous  discussions  about the propriety of border laptop searches, as well as  Orin Kerr’s  theory of  technology neutral application of search and seizure law to new technology.

Tacitly applying Kerr’s tech neutral approach, the government and courts have circumvented the issues raised by these border searches via the use of analogy to old law, comparing a laptop to a suitcase or file cabinet.  Dan Solove at  Concurring Opinions  proffered an approach he calls 4th Amendment Pragmatism as a substitute, eliminating the Katz reasonable expectation of privacy test for “problems of reasonable significance.”  It seems that this intrusion would fail under either test, and is permissible only because of courts’ reliance on the rubric developed at a time when absolutely nothing comparable to a laptop computer was under consideration. 

At the time of these discussions, my guess is that fate of computers had already been sealed. Well before anyone was arguing over the propriety of using 4th Amendment analogies to explain what happens in microchips and people’s expectations, there were decisions like this, unknown at the time, that had already gone to a place where no court should have gone.

I would expect both academics and prosecutors to fundamentally disagree, that the evolution of law by analogy to new concepts, to new technology, is both the appropriate and necessary approach. It’s prudent. It modest, It promotes consistency.

And that’s why privacy, moribund before, was dead on arrival when it came to technology.

The next question, much like whether there is ever a chance that junk science, once allowed, can ever be eliminated from our legal mythology, is whether there will be any support within either academia or the bench to recognize that tech is new, different, and not fairly analogized to physical world comparison and old precedent.  Unlike dog hits, tech offers an opportunity where the courts won’t have to admit they blew it in the first place and embraced a ridiculous religious belief when there was woefully inadequate science behind it.

Tech changed. It changes constantly. Because of this, the courts can take the position that precedent can’t keep pace, that old analysis can’t be adequately applied, and that new changes in technology change everything.  In other words, there is a conceptual edge to stop our sliding down the slippery slope.

Or we can just throw privacy out with the deleted computer files.  But we didn’t have both in 2003, and if nothing changes, we will never have privacy in the age of technology again.

Judge  James Booras of the 19th Circuit of Illinois is both tough and sensitive. Just not in the right order. Via the Chicago Tribune :

Robert Ritacca said that when Judge James Booras heard his client missed his curfew by 22 minutes, the judge immediately agreed to a request by Assistant State’s Attorney Danielle Pascucci and raised the defendant’s bond.

“Raising bond” is a relative phrase. What Judge Booras did was raise bond from $2,000 to $75,000.  Ritacca explained that the defendant was 22 minutes late because his ride had been late. This would certainly justify a stern lecture about responsibility, as it was the defendant’s to be home by curfew regardless of whether his ride is late.  “Never cut it so close again, or you’re going to jail,” would seem appropriate.

Robert Ritacca didn’t take the increase well.

Ritacca said later that he told the judge that he thought the bond ruling was “ridiculous” — at which point the judge ruled that Ritacca was in contempt of court and fined him $500.

“So I said that’s also ridiculous, and they took me into custody,” Ritacca said.

Is it contumacious to call a judge’s ruling ridiculous? What about when it is ridiculous? Or would “outrageous” have been a better choice?  While the choice of words may not have been particularly persuasive in getting the judge to see that his ruling was, oh, less than justified, not every ruling, particularly ones that do grave and wholly unwarranted harm to a client, is met with “thank you, your honor.”

Booras then raised Ritacca’s fine to $1,000 and his client’s bond to $150,000, though Pascucci said the bond was raised to $200,000.

Pascucci said Ritacca “had his voice raised,” was being “disrespectful” and was “flailing his arms.”

There are limited choices available to defense counsel when something as absurd and wrong as this occurs. That’s not to say that venting one’s frustration and anger is necessarily the right choice, but sometimes it’s the only option available when something truly ridiculous occurs.  Plan B is to stand there, do nothing, and watch as they lead the defendant away in cuffs. Not particularly effective either. There is a habeas corpus, but even when it produces the correct result, days will have passed with the defendant in jail. The legal system has yet to figure out how to give a person those lost days back.

Robert Ritacca was no spring chicken, which no doubt contributed to his decision not to stand there like a deer in the headlights.

The Waukegan-based Ritacca, who said he has been an attorney for 33 years, said he was in custody for about 30 minutes.

“There is no contempt,” Ritacca said. “You don’t put lawyers in jail for arguing for their client.”

Not exactly. What I believe Ritacca means is that the judge shouldn’t put lawyers in jail for arguing for their client, even if the argument hurts the judge’s feelings by suggesting that he was less than a brilliant jurist for ruling the way he did.  Notably, Judge Booras later reduced the defendant’s bail to the originally ridiculous $75,000, apparently after he calmed down a bit.  After all, $150,000 was ridiculous.

That Ritacca’s calling the bond increase “ridiculous” may not have been effective isn’t the measure of valid argument. Criminal defense lawyers commonly make arguments that don’t prevail. It’s the nature of being on the wrong side of the room. But it doesn’t mean you don’t try to make a point, to fight.  Would it have been better had he framed his outrage in more judicious language? Perhaps, but that doesn’t make the word “ridiculous” less of an appropriate characterization. 

While the article doesn’t say, he may well have tried to argue the point as being unduly punitive and unjustified by the cause of the 22 minute breach. He may well have contended that his client shared the court’s concern and was deeply distressed by the inability to make it back in time for curfew.  He may have expressed his client’s lesson in relying on someone who wasn’t sufficiently reliable, and cutting it much too close. An error in judgement by the defendant. Criminal defendants do that sometimes, without meaning any disrespect to the court or evincing any intent to defy the terms of the bond.

But Judge Booras’ reaction to the word “ridiculous” reflected a lack of judicial temperament, an improperly delicate sensitivity to disagreement with his ruling.  Just as defense counsel have to get used to their arguments being rejected, judges have to be tough enough to have their rulings disputed. Even special little snowflakes in robes.

If Judge Booras didn’t appreciate Ritacca’s characterization of the bond increase as ridiculous, the solution is not to make ridiculous bond increases. This increase was not merely wrong, but outrageous.

As for Robert Ritacca, his willingness to challenge such an outrageous bond increase reflects the highest calling of a criminal defense lawyer, not to let his client get taken into custody without a fight.  There are no shortage of lawyers who can easily rationalize why they wouldn’t put themselves at risk on behalf of a client by pushing the envelope like this, but there are some who are bold enough and take the duty seriously enough to take a risk.  Ask yourself which type of lawyer you are.

If I had a medal to give, one would go out to Robert Ritacca. And if you don’t have the stones to do what he did, ask yourself why?

H/T FritzMuffKnuckle

Adam Liptak reported in the  New York Times that empathetic Latina Justice Sonia Sotomayor, who stated during her confirmation hearing that she favored the Supreme Court’s arguments being televised, has changed her mind.

She was singing a different tune a couple of weeks ago, telling Charlie Rose that most Americans would not understand what goes on at Supreme Court arguments and that there was little point in letting them try.

“I don’t think most viewers take the time to actually delve into either the briefs or the legal arguments to appreciate what the court is doing,” she said. “They speculate about, oh, the judge favors this point rather than that point. Very few of them understand what the process is, which is to play devil’s advocate.”

I know, Charlie Rose?  She’s Sonia from the block, so you can’t expect her to know better. But I digress.

Cornell lawprof  Mike Dorf takes on her change of heart, that “the fear that the public wouldn’t understand what they are watching” by “stating the obvious,” that the

worries cited would not come close to justifying a ban on video coverage of any other official government proceeding if the burden of persuasion were placed on those who wanted to prevent such coverage rather than, as the Justices seem to assume, placed on those who want to permit such coverage.

I went over to CSPAN.com and randomly clicked on a House Subcommittee hearing on regulating the domestic use of surveillance drones.  That sounds like it should be interesting, right?  I was bored to tears in seconds.  Okay, not quite tears but I was bored enough to stop watching and click on something else.  This seems to me to be just about all the harm that would be done from having more generally uninformed people watch proceedings in the Supreme Court: More people would discover that they generally find the work of the Court boring.  

Of course, no one is suggesting a “ban,” but rather an initiation of change. Nor is the Supreme Court a house subcommittee (or any other part of the legislative branch of the government).  Most importantly, there is no rule by which the decision to televise proceedings is made called the “Things that bore Dorf Rule.” 

While it may be true that most non-lawyers will find televised Supreme Court arguments a bore, that’s neither an argument for or against openness, except to the people trying to sell advertising. Can you imagine Supreme Court oral argument with commercial breaks, like the NFL? It’s really a pretty funny idea, cut to commercial, Clarence Thomas starts telling jokes, Kagan for make-up to get her nose polished, while Alito hits the green room for a donut.  But again I digress.

It strikes me that Dorf’s “boring” argument is not only irrelevant, but completely misses Justice Sotomayor’s point. The point of televising oral argument is to expose the working of the Supremes to public scrutiny, and exposure to public scrutiny, whether thrilling or boring, is justified if it enabled people to be more enlightened and knowledgeable about how their government functions.

Therein lies the problem.  Cornell Law School is the home of the Legal Information Institute, engaged in the worthy cause of bringing statutes and caselaw to the masses for free. By worthy, I mean that these things belong to us, done by our government officials on our dime, and are not, contrary to historic belief, the property of West Publishing or Lexis so that they can sell them to us at an absurd mark-up.

But there is a secondary, and far more dubious, aspect to the LII’s purpose. They harbor the  misguided belief that by making “the law” available to the public, it will enable anyone to play lawyer. As if a free copy of Grey’s Anatomy meant anyone could perform brain surgery, there was an unfortunate inferential leap that may have sounded fine in theory, but would prove disastrous in practice. When I challenged this blind leap of faith,  Bruce Thomas of LII didn’t take kindly to being questioned, and demonstrated why the library was a better choice for him than the courtroom.

What Mike Dorf may not realize is that there are a great many people deeply interested in the law, particularly criminal law, some bordering on obsessed. They won’t be bored. They will watch. They won’t understand. They will think they do. They will act upon it, whether by deed or screed. While Dorf likely doesn’t get a lot of comments at his blog expressing some of the craziest notions of what the law provides or allows, a brief trip to some non-lawyer sites on criminal law will be a revelation. They neither understand law nor process, but reflect the full force of the Dunning-Kruger Effect, with  confirmation bias thrown in for good measure.

As a result, providing greater transparency doesn’t illuminate for those who are deeply interested, but either bolsters misguided beliefs or enrages them. What doesn’t happen is that they learn from what they see or understand that they’re preconceived notions are wrong.  They are never wrong, but the court is when it doesn’t see things their way.

That said, I agree with Dorf’s ultimate position, that oral argument before the Supreme Court should be televised, even though he thinks people will be bored. While I doubt it will be particularly illuminating, despite the LII’s Utopian fantasy, it remains a core function of the judicial branch of government. In other words, it’s ours, for better or worse. I don’t doubt that Justice Sotomayor’s concerns are legitimate, but so what?

Even crazy people vote, pay taxes and drive cars on the same roads as the rest of us. There is no requirement in a constitutional democracy that people be well-educated or knowledgeable, and even the ignorant get to see what their government is doing. And that includes the justices.  So somebody watching will still insist that the gold fringe on the American flag means that the court is iLLegallY ConSTituted!!!   

More to the point, I doubt Dorf (or LII’s Bruce) realizes how many people still contend that the Supreme Court’s John Bad Elk decision, authorizing the use of deadly force against an illegal police arrest, remains good law.  And where do they find decisions like this? Why, they can find it at Cornell’s LII website, of course.
These are your fellow Americans, for better or worse. Citizenship isn’t contingent on whether their favorite loony tunes character is from Tasmania.

If there is a cure to the problem, it comes from those of us engaged in the practice of law, making as many of our friends and neighbors, clients and readers, more rather than less knowledgeable. If we stop enabling people from being crazier and angrier, we help to create a more enlightened citizenry, more capable of knowing about and exercising their rights and offering critical, but accurate, thought on the functioning of our government and particularly our legal system.

Yeah, it may be a bore, but at least we won’t be making people stupider. And if you won’t do it for me, at least do it for Sonia.

The Dayton police “knew” all about Jeffrey “On The Lam” Lam.  Oh yes, they knew him well.  We know this is true because the court said so.

The events which led to Lam’s arrest began when Dayton police officers approached his brother, Jeffrey Lam (“Jeffrey”), regarding a traffic violation. On the evening of December 12, 2011, Officers Michael Saylors and Randy Beane observed Jeffrey driving a gold Intrigue near the intersection of Hodapp and Lorain Avenues. The officers were familiar with Jeffrey from “a lot of history,” and they knew that Jeffrey and his brother, Timothy, had possessed firearms and drugs during past contacts with the police. Additionally, Beane knew that Jeffrey had fled from police two weeks earlier in the same car, because Beane had participated in the search for the vehicle. The officers knew from prior interactions that Jeffrey’s driver’s license had been suspended several times, and Beane knew from running Jeffrey’s license two weeks earlier that Jeffrey had been under suspension at that time.

Based on Jeffrey’s history of fleeing from the police, the officers’ desire to avoid a chase, and the officers’ knowledge that they were in the vicinity of Jeffrey’s home, which was located at 645 Creighton Avenue, the officers decided to follow Jeffrey rather than immediately initiate a stop for driving without a license and any other pending charges related to his flight from police two weeks earlier. (The officers did not know, at that time, whether there were any outstanding warrants for Jeffrey.) While following him, they observed a turn signal violation.

As soon as the lights were activated, both doors of the Intrigue “flew open,” and Jeffrey and another individual (James Farr) fled on foot. The officers pursued Jeffrey and Farr. Saylors tackled and detained Farr. After a brief chase through the neighborhood, Beane saw Timothy Lam (Jeffrey’s brother) on the porch of 645 Creighton and saw Jeffrey run from between the neighboring houses into 645 Creighton. Both men went into the house and closed the door behind them. The officers attempted, unsuccessfully, to kick in the door. Although the officers could see individuals inside the house, no one responded to their commands to open the door. The officers retrieved a battering ram from their cruiser and, using it, entered the house.

Note: It really wasn’t necessary to discuss the underlying facts at length to reach the issue of the holding of this case, but they were so comical that I would be remiss to deny any reader the lulz.

Under the facts of this case, however, the court concluded that a “wholly separate criminal act” from the turn signal violation occurred when Jeffrey “challenged the officer’s authority to lawfully cite a citizen found outside the sanctity of his home” by fleeing, and that this separate act justified the pursuit into the home.

“[W]e see no reason to differentiate appellant’s offense and give him a free pass merely because he was not charged with a more serious crime. The basic fact remains that appellant fled from police who were in hot pursuit of him and who had identified themselves as police officers.”

Some might suggest the reason is that the sanctity of breaching the home without a warrant is one of the few aspects of Fourth Amendment jurisprudence that remains relatively intact, absent some sufficiently serious reason to break down the door.  Not in Ohio.  The Ohio Court of Appeals was not entirely impressed with its own Supreme Court’s reasoning, but nonetheless applied the precedent.

What remains remarkable about this case is that the Lam brothers, given police claims of all the evil they were up to, were not the targets of an investigation premised on a warrant issued by a neutral magistrate upon a finding of probable cause that they were engaged in drug and gun crimes.  If the police “knew” about their evil deeds, then it would seem perfectly appropriate for the cops to go after them for their crimes.

But no. This was a pretext stop, a little lie that the cops play with citizens behind the wheel, where Whren kicks in so they can enjoy the fruits of investigative brilliance at the expense of a traffic infraction. Of course, Jeffrey Lam didn’t have to flee, nor take refuge in the home, but this is a case about Timothy.

While the Ohio Supreme Court might see it as a “free pass,” others may wonder why the police couldn’t wait outside the house for Jeffrey to emerge, or if they were in a rush, call in for a warrant to enter and seize this traffic non-signaler.  Or maybe homes in Ohio aren’t as worthy of protection as  Teddy Payton’s was in New York.