When the Supreme Court  granted certiorari to the Florida Supreme Court in Harris v. Florida, there were two possibilities. It could have been because they wanted to drive the final nail in the coffin of the dog sniff myth, seizing upon the Florida court’s revelation that we’ve been laboring under falsehood for decades that allowed the police, provided they brought a puppy with them, to have their way with us.

Or it could be what a unanimous Supreme Court, in an opinion by Justice Elena Kagan, last of Harvard law school, did.  Despite what we now know about the flaws of the dog sniff myth, the pseudo-science nonsense behind its pretense of reliability, the statistical reality that passing a dog past the target of a search is no better than a coin toss, and often worse, that it’s subject to the cue of a handler that makes any right of privacy evaporate in the face of a doggy alert, the myth cannot be questioned.

If a dog says the police can search, then search they can.

As the opinion has been out for hours already, Jacob Sollum at  Reason has already shredded its back end, while Orin Kerr at  Volokh Conspiracy has handled the front.  Somehow, the nine justices ignored the fact that the entire process by which a cute pup is elevated to a probable cause machine within a structure created, owned and managed by law enforcement. 

The  National Academies of Science saw through the mess, but the Supremes were blinded, perhaps by the doggy cuteness.  But then, those scientists are so stuck on facts and proof and method that they are often blind to the adorable things that tug at Kagan’s heartstrings.

The newest associate justice had the opportunity to make excuses either way, about why dogs failed so miserably in the field, where the rights of citizens were put to the test, or how controlled and effective the dogs were tested in the controlled environment of Police Puppy Training Institute.  She chose to favor the latter, and used her formidable rationalization skills to explain why reality to Americans whose privacy was lost wasn’t nearly as important as official certificates handed to dog handlers by police officials. 

But all was not lost, Justice Kagan explained.

A defendant, however, must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant, as the Solicitor General acknowledged.

It’s not as if the defense can do nothing about it, provided the trial occurs on a planet far, far away, where the fantasies of a scholar turned jurist take flight. In the imagination of a judge who has never dirtied her robes in the nasty trenches of a courtroom, defendant’s are fabulously flush with funds to fly in experts from far-away places to challenge this sniff.  And the government always turns over all its inside canine certification secrets, without lies, omissions, conclusory assertions or deception.

Nothing ever goes wrong in a courtroom. That’s because our system is comprised only of wondrous folks whose concern for justice trumps all else. That’s why you, citizens of this great nation, trust it so completely and without reservation.

For quite a while, the question of whether a coin toss with the lovely face of a puppy on one side and the sad face of a citizen being searched on the other was on the table.  There was science. There were statistics. There was the amorphous thing called probable cause, which offered what some Americans believes to be a greater than not chance that their rights would be honored even though the word “probable” in Washington was defined to mean something different.

In testing whether an officer has probable cause to conduct a search, all that is required is the kind of “fair probability” on which “reasonable and prudent [people] act.” Gates v. Illinois, 462 U. S. 213, 235. To evaluate whether the State has met this practical and common-sensical standard, this Court has consistently looked to the totality of the circumstances and rejected rigid rules, bright-line tests, and mechanistic inquiries. Ibid.

Whenever you see the words “common sense,” you can be assured of two things. First, that it is used to overcome a gap of logic that cannot otherwise to explained. Second, that you lose.

In this case, the court has embraced a practical approach to simultaneously avoid being rationally required to explain away the failings on the part of the government to demonstrate why the rights of people under the Fourth Amendment to be free of warrantless search and seizure should be eviscerated by a critter whose efficacy is an article of law enforcement faith, as well as avoid having to admit that it has failed for decades to prevent violations of the Constitution based on its love of junk science.

But more importantly, the use of dogs, whether real, by cue of their handlers, or simply by magic, has served the interest of our government so well for so long by providing a justification for searching people.  Plus, dogs are so very cute, lovable and friendly. What kind of a justice would serve our nation who didn’t love dogs?

The issue is now conclusively decided, at least for the next generation. Don’t blame the dogs.

H/T for the title of this post, @BoatFloating, which reminded me of the old joke about the agnostic dyslexic insomniac was up all night questioning the existence of Dog.

Robert Ethan Saylor was 24 years of age when he died of asphyxiation. His life probably wasn’t an easy one, having Down Syndrome, but it was his.  Even so, it was taken from him because a few police officers were just doing their job the same way they always do their job.

Via Z6Mag :

He was at the movies with a health aide the night of the incident. When the movie, Zero Dark Thirty ended, he refused to leave so employees called the police. Three deputies came to handle the situation. Saylor was handcuffed and was allegedly resisting when he had what authorities describe as a “medical emergency.” Better stated as, they found out he had down syndrome.

That last line is snappy, but wrong.  It isn’t possible the police had no clue that Saylor had Down Syndrome. He is the poster boy for it, with clear physical manifestations. While police may mistakenly think a deaf person heard their command before killing them, or a blind person could see the glint of their shield, there is no mistaking a person with Down Syndrome.



Whether the movie theater’s employees were correct in their handling of a recalcitrant moviegoer who refused to leave (or buy a new ticket) when the movie ended is one thing. No doubt in retrospect, they might have preferred to be more generous toward Saylor.  It’s unimaginable that they saw his overstaying his license as an offense worthy of death.

So the employees did what they were told to do, what most people do when they have a person who won’t follow their rules, they called the cops.

According to a law enforcement source, the 26-year-old went into distress when he was put face down on the ground. Deputies removed the handcuffs and took him to a hospital, where he was later declared deceased.

The details of death are a bit lacking. It’s not that nobody knows, but that the officers involved had something that Saylor lacked .

The deputies exercised their rights under the Law Enforcement Officers’ Bill of Rights and have not made statements in the case, Bailey said.

The deputies who were with Saylor at the time of his death, identified as Lt. Scott Jewell, Sgt. Rich Rochford and Deputy First Class James Harris, continue to work their normal assignments while the case is being investigated.

It’s not there isn’t law to protect people. Indeed, there is. It’s just that it’s not only far more favorable to police than to anyone else in our society, but it’s the one law that the police scrupulously honor. While the three officers who invoked their right to be left alone remain on the job, the rest of us scramble to know how a ticket dispute ended with Saylor’s death by suffocation.  It’s a horrible way to die.

Dr. George Kirkham a criminologist and former law enforcement officer told the Post , “The circumstances surrounding Saylor’s death suggest a possible case of positional asphyxia, which often goes hand in hand with a phenomenon called sudden in-custody death syndrome.”

“Positional asphyxia is typically the result of an intense struggle and often involves a person who is handcuffed and lying on their stomach after the struggle.” Kirkham says, “People often panic and can’t catch their breath. People with larger stomachs are particularly vulnerable, because their bellies will push into their sternums, making breathing even more difficult.”

This is why it’s important to note that the police officers could not possibly have been unaware that Saylor manifested the physical appearance of a person with Down Syndrome.  What isn’t said is whether Saylor, lying on the ground in a movie theater so that cops can subdue and cuff him in the manner that affords the police the greatest degree of personal safety was accompanied by the other normal conduct:  A knee with the full weight of an officer pushing down into the small of his back?  A officer sitting on his shoulder blades?  The ubiquitous boot pressing against his spine with a police officer’s heft holding him supine?

As we don’t know the details of what was actually done to Saylor now, the likelihood that we’ll ever know the truth is slim.  What we know with certainty is that a young man is dead over what amounts to a business dispute over $11, and some cops who did their job of protecting the theater’s financial interest by use of their routine method of subduing a man who obviously had Down Syndrome.

Some will think, “wow, just wait until the lawsuit where the family will win a fortune!” Others will cry for the cops to be fired or prosecuted for Saylor’s death.  When we speak of a person needlessly killed, the issue of remedy isn’t the point. The issue is why was a human being’s life lost.

It’s not easy going through life with a disability. It’s unlikely that Saylor ever knew the joy of a young woman’s loving touch. He probably didn’t have a posse to hang out with and watch the Ravens while chugging a few brewskies. When he shopped for clothing, chances are he wasn’t very concerned with whether members of the opposite sex would think the pants made his butt look fat.  Still, he experienced love, joy, satisfaction and accomplishment, even if not the same as other people.

This was his life.  And it was taken from him for nothing by three police officers who were just doing their job, even thougy they knew, they had to know, that they were dealing with a young man with Down Syndrome.

In  comments to a recent post here, MIT professor  Barry Kort eloquently expressed some thoughts I found distressing.

I lost faith in the System of Justice a long long time ago, partly on the grounds of empirical evidence, and partly on the grounds of analytical theory.

As I see it, there are a number of systemic problems that impede our objective of crafting a peaceable society through the Rule of Law.

The first problem is that we lack a unified consensus on what to criminalize, what to legalize, and what to regulate.

The second problem is that enforcement, arrests, prosecutions, trials, and sentences are erratic at best and corrupt at worst. Many thoughtful people have serious misgivings about the functionality, fairness, and rationality of the criminal justice system.

The third, and most insidious problem is that the Crime and Punishment model is inherently flawed at the conceptual level, and is mathematically incapable of achieving the objective of crafting a peaceable society, because the system’s main tool is the haphazard application of state-sponsored violence under the color of law.

Attorney General Eric Holder Jr. recently said that his top priority is to improve the criminal justice system.

The commission reported recently that in the 16-year period through fiscal year 2011, the annual number of federal offenders “increased substantially,” from 37,091 to 76,216. The commission previously explained that “excessively severe” mandatory minimum sentences added heavily to this increase and to overcrowding in prisons.

Always a curiosity, given the job of the USSC, that they would call mandatory minimum’s “excessively severe” while using them as the framework for offense levels.  What if, for example, the offense level for 50 kilograms of cocaine was set at 36 months, with enhancements for specific conduct? Sure, the mandatory minimum of 10 years would still apply, but not by the Commission’s hand. Did it occur to no one that they weren’t constrained by mandatory minimums when setting offense levels? Clearly not, as the numbers dovetail precisely with the “excessively severe” minimums. This isn’t an accident.

The Times then describes Eastern District Judge John Gleeson’s two recent, and bold, decisions in  Dossie and Diaz.

Federal judges are acutely aware of this issue. Judge John Gleeson of Federal District Court in Brooklyn, for one, has been a vigorous critic of mandatory minimum sentences.

The first sentence isn’t supported by the second. Judge Gleeson, whose career as a highly effective federal prosecutor would likely have cause many to doubt whether he was a good choice for an Article III judge, has consistently demonstrated a remarkable depth of understanding of the system and its flaws. He is not the norm. 

Whether, and to what extent, other federal judges share his views is something of a mystery. A few write opinions, make rulings and impose sentences that show they do. Most do not. Some are overtly hostile to arguments like Judge Gleeson, and adore the ease of use of the sentencing guidelines. A bit of basic math and another human being is whisked out of the courtroom to never be thought of again. Another case off the docket; a sentence that won’t be reversed.

This compounds the problem for low-level offenders, who make up 93 percent of those convicted of drug trafficking. Judge Gleeson called on the commission to fashion fair sentencing ranges based on an offender’s role and to reduce all sentencing ranges for drug trafficking by a third.

Like the statistics for rape, the statistics for drug offenders are suspect. Ask an AUSA and almost every co-conspirator is a major player. Ask a defendant and they’re just a cog in the wheel. But like those whose concerns are limited to the wrongfully convicted innocent, suggesting the guilty can rot in hell, the Times plays up the low-level offenders angle, even as Judge Gleeson knows better.  Reduce all drug sentencing ranges by a third. Not just the handful who are sufficiently sympathetic to warm a reporter’s cold heart, but all of them. 

The trouble with mandatory minimum sentences is that it is impossible to make them fair and just in every case. It’s time for the attorney general, Congress and the sentencing commission to reform this scheme.

By conditioning its argument with the phrase, “in every case,” the call for “reform” feeds the concerns of Barry Kort. But forget the New York Times’ editorial, and look instead to the real effort of an Article III judge, John Gleeson. As wiggly, confused and compromised as the unprincipled editorial may be, the two opinions of Judge Gleeson are precise and painstakingly grounded in reason.  

Barry Kort may feel defeated, that the system is beyond salvation and, even if it could be tuned up to function at its best, would still fail because the underlying concept, the Crime and Punishment model, is “mathematically incapable of achieving the objective of crafting a peaceable society.”  Maybe so. Maybe a new Age of Enlightenment will come and we will abandon this failed experiment in crime and punishment.

In the meantime, however, we have judges like John Gleeson, and we do better by continuing to fight, to argue, to persuade, others to appreciate and follow his lead. As long as defendants are prosecuted, we don’t have the luxury of feeling defeated and giving up.

An email arrived this morning soliciting my willingness to promote a book of war stories by a British Queen’s Counsel.  With a link to his Amazon page and the vanity blurb about his glory, he suggested that you, readers of SJ, might be interested in purchasing his book.

My response was:

While I occasionally do book reviews, under no circumstances would I ever blindly promote a book. People who want to advertise their wares for sale pay for the advertising.

Had my book been of interest to your readers I would have offered you a review copy.

However, with such a discourteous reply if you want a review copy you will have to buy it.

Few sounds are better to a defendant’s ear than the dulcet tones of a judge saying “case dismissed” because the arresting officer failed to appear for trial. Well, “not guilty” is better, but that puts the defendant through the cost and misery of trial. How wonderful to avoid it all. Except when the defendant is a Florida Highway Patrol trooper who’s conduct killed a woman, injured another and sent as 12-year-old hurtling through a windshield.

From the Sun-Sentinel :

Accelerating with no emergency lights, the trooper reached 102 mph in his Crown Victoria, heading toward a curve with a recommended speed limit of 35 mph, according to FHP records. Coming the other way was the Mitsubishi with two women and a 12-year-old girl, on their way home to Quincy after picking the child up from school, relatives said.

As [FHP Trooper  Detrick] McClellan reached the curve, he veered off the road, then swerved into the other lane and smashed into the Mitsubishi. Passenger Michelle Campbell, 51, died several hours later from her injuries. Campbell’s granddaughter, 12, flew through the windshield, and the other woman, her niece, suffered serious injuries, records show.

Why was McClellan racing down the road?

FHP Cpl. C. Brooks Yarborough investigated the crash and found McClellan responsible. Prosecutors declined to file criminal charges, determining that the trooper’s driving did not rise to the level of vehicular homicide.

“He responded to [the call] rapidly because that’s a dangerous thing, rocks hitting cars,” Willie Meggs, state attorney for the circuit that includes Gadsden County, told the Sun Sentinel. “We made the conclusion that there was a life lost, but he was trying to save a life.”

But McClellan wasn’t completely off the hook, as he was “cited for three traffic violations.” Harsh, right? 

Yarborough cited McClellan for careless driving, speeding, and failure to use his emergency lights — non-criminal traffic infractions typically punishable by fines.

A hearing was set for Nov. 5 before Gadsden County Judge Kathy Garner. Two hours before it started, Garner’s assistant got a call saying Yarborough wouldn’t be there, the judge announced at the hearing.

Of course, there is a history of “professional courtesy” in the FHP, suggesting that maybe the failure to appear was, say, calculated? But no, according to the cops. It appears that Yarborough had a “medical emergency,” and his failure to appear presented no issue.  On the other hand, he wasn’t the only trooper in the hearing room:

But when his case came up in court, the trooper who issued the citations wasn’t there. Another trooper in attendance said that though he couldn’t represent the agency, he would not object to dismissing the tickets, and the judge did just that.

McClellan walked out with no consequences, and even got handshakes from his fellow law enforcement officers.

After all, it was McClellan’s lucky day.

Not to be a bit cynical, but there is no aspect of what happened here that passes the smell test.  From the determination that McClellan at worst deserved a speeding ticket to the failure to appear for medical reasons to the failure to simply adjourn the hearing to another date.

Perhaps what happened here can be chalked up to a massive screw up, but the outcome of this case strains  Hanlon’s Razor to the breaking point.  Had the individual who caused the death of a woman and a child to be thrown through a windshield been anything other than a trooper, this would have not only been prosecuted as a homicide, but touted as the justification for a new law imposing a sentence of death plus cancer for speeding.

There is no shortage of people who have given up hope in the legal system, who believe that it’s so badly broken, so utterly fixed, such a total sham, as to either fall into despair or be ready to take up arms against those they believe are the perpetrators of injustice.  As much as we may point to those rare cases where the right result happens, whether it be the cop convicted or the defendant acquitted, we remain saddled with stories like this. 

Try as I might, there is absolutely nothing about what happened here that can be rationally explained or justified.  It’s the dream of every tin foil hat wearing conspiracy theorist, and the nightmare of every person who struggles to make the system work with integrity. 

Nice going, Florida. The cynics win. And you handed it to them on a silver platter.

H/T FritzMuffKnuckle

Quietly, some joker in the editorial department of the New York Times is snickering, having snared another law dean or professor in the trap of offering a soapbox upon which the dean can conclusively prove to the legal community that he’s got no clue about the real world of lawyering.  And given the chance to get on the box, they just can’t resist.

This week’s contestant was Rutgers Law Dean John Farmer, who has come up with the idea that new lawyers should apprentice after law school, an idea that many have suggested and has some merit along with many problems. In the process, however, Farmer reveals that he has no clue what the problem is.

Consider this: Nearly half of those who graduated from law school in 2011 did not quickly find full-time, long-term work as lawyers.

Quickly? How about not at all. Not long-term. Not short-term. Not slowly. As for the ones who did, how about at salaries that can’t carry the debt-load while feeding themselves, no less their families, or terminal positions that run dry when the case is over, or dead-end positions that will never provide a future?

Yet the need for legal representation has never been greater. In New Jersey, where I teach law, 99 percent of the 172,000 defendants in landlord-tenant disputes last year lacked legal counsel.

Might that have something to do with the fact that these are non-payment proceedings, as in they can’t afford to pay the rent? And if they can’t afford to pay to put a roof over their head, do you think they’re reluctant to raid their trust fund to pay for counsel to fight the non-payment proceeding?  Or perhaps they can cut the kids down to one meal every three days so that a Rutgers Law grad can get paid?

Nationwide, judges decry not a surplus of lawyers, but a lack of competent representation for those who aren’t rich individuals and corporations.

Judges focus on what comes before them in a courtroom, and it’s no surprise that they sit on the front line of people lacking counsel.  Law deans, on the other hand, sit in the Ivory Tower and apparently don’t see much of anything.

Lawyers cost too much in part because of rates established during the economic bubbles of the past 15 years. No less than in the dot-com or real-estate or derivatives markets, the cost of legal services became unsustainable.

Ignoring the wiggly caveat, in part, the choice of highlighting “rates established during the economic bubbles” is Dean Farmer’s way of saying that law is Biglaw. The lawyers who represent tenants in Landlord-Tenant court didn’t set rates based on the real-estate boom. The rates of lawyers who work for corporations in Biglaw have zero to do with what small firms and solos who represent individuals charge, and never did. It’s not that they wouldn’t have loved to charge anything remotely approaching Biglaw rates, but that fantasy never happened.

Lawyers cost too much because people can’t afford to spend anything remotely close to what a solo lawyer needs to earn to pay for his office, debt and leave a little over to feed the kids. Lawyers cost too much because people’s wages are stagnant while the cost of living has skyrocketed. Lawyers cost too much because people are unemployed.  Lawyers cost too much because they want to earn a living just like the people who might otherwise retain them.

Except the lawyers have given away three years of opportunity and over $100,000 for the pleasure of being a lawyer, a burden that other people don’t necessarily share.

The recession worsened, but did not cause, the predicament now: a mountain of student debt and dearth of legal jobs, even as there is a crying need for legal services.

Why yes. How nice of you to notice.

That disconnect relates to how lawyers are hired. Big firms have been hiring a few graduates from a few select schools, and paying them exorbitantly.

This is where Dean Farmer’s motives reveal themselves. While the vast majority of law school graduates never saw the inside of Biglaw, he wants to get his Rutgers Law grads a chance to cross the East Hudson River.

Let’s scrap this system. We need, at its entry level, the equivalent of a medical residency. Law school graduates would practice for two years or so, under experienced supervision, at reduced hourly rates; repaying their debts could be suspended, as it is for medical residents.

Gee whiz! So who would be the teaching hospitals for law grads, where they could be taken under wing “at reduced hourly rates”?

Law firms would be able to hire more lawyers, at the lower rates, and give talented graduates of less prestigious institutions a chance to shine. The firms, at the end of the residencies, could then select whom to keep. Even for those who don’t make the cut, the residency will have provided valuable experience. The law firms should be required, under this proposal, to offer stipends to help those residents who don’t make the cut but have debt burdens.

Less prestigious institutions? Like, oh, I dunno, Rutgers?  And these firms, because they’re rolling in dough, would be essentially nationalized for the benefit of law students, even to the point of providing a stipend to further support the debt incurred by law school tuition?

Every form of legal practice could benefit, not just pro bono work. The largest firms would use the legal residents on large institutional matters and use the savings to lower hourly rates for clients. Large and small firms could afford to serve people who can’t afford legal services but don’t qualify for pro bono aid: the middle class.

Well, that would certainly benefit those poor, maligned large institutions who are suffering foreclosure and eviction. Oh wait.  And large and small firms, well really small firms because large firms don’t tend to represent tenants facing eviction very much, should be part of this scheme, obliged to take in your debt-burdened students “at reduced hourly rates,” spend their days teaching and supervising them, dealing with the mess they leave behind, the personnel issues, the cost of real estate to warehouse these younguns, and when they don’t hire them on a partnership track, pay them a severance?

And this does what for the 172,000 tenants who can’t pay the rent?

In fairness to good Dean Farmer, I can’t blame him for trying to get his grads into jobs, even if he’s compelled to write an op-ed in the New York Times as utterly inane and bizarrely unrealistic as this.  Maybe he’s not being disingenuous, but really has no clue what it costs to survive, as a lawyer or as a human being on the bottom rung of over-educated society. Small firm economics may not be his strength, and chances are pretty good that he’s never spent time with poor people in need of legal representation.

What compels this dissection is that the legal profession is near implosion, and yet the New York Times gives space to such nonsensical approaches as this, as the academy perpetuates self-serving solutions that seek to shift the problem onto practicing lawyers so that they can offer the promise of a financially rewarding career to their students without addressing the growth of tuition they charge and the debt their students take on.  Law schools want lawyers to shoulder the cost so they can continue to charge with abandon.

But what is really insulting is the attempt to justify this by publicly suggesting to the unwary that it will provide legal services to those who can’t afford a lawyer. Putting aside the giving them lawyers who don’t know their ass from their elbow, the premise is false to begin with.  Biglaw doesn’t represent indigent tenants or mom and pop start-up businesses. They don’t do simple wills for new parents. Give Biglaw 1000 baby lawyers and they may have document review nailed down, but nothing else.

But as law schools continue to churn out tens of thousands of grads every year, there aren’t enough desks in Biglaw hallways to subsume these grads. Where would they go? How many solos have an extra desk in their office, time to spend overseeing a n00b who is thrown into the deep end, and the extra money to finance his law school mistake?

This is why we can’t have nice things, but that doesn’t stop the Times from giving space to law deans who will write anything to protect their turf.  Are lawyers ready to get involved in this discussion, or would you rather find out about the new rule requiring you to take on baby lawyers at your expense?  Because you don’t have enough problems already? Hope your malpractice is paid up and your kids don’t need dinner every night.

So if Dean Farmer really wants to play the Apprentice, then I’m going to play Trump. You’re fired.

When Casey Anthony, the most hated person in America until Justin Bieber released his new song, was acquitted, her lawyer, Jose Baez, was similarly despised for having done his job too well. Forget that this hatred came from a public that didn’t hear the evidence. Americans know who they love and hate, and that’s good enough.

Apparently, this isn’t just an American invention. Across the pond, Nigel Poole, QC, felt compelled to speak out on behalf of his colleague, Kate Blackwell, for having cross-examined too well.

It seems necessary to give that defence of my profession because a fellow barrister from Manchester has found herself at the centre of a storm of protest as a result of what the trial judge called a perfectly proper cross-examination of a witness at a criminal trial. Tragically the witness, Frances Andrade, committed suicide some days after giving evidence. She had alleged that as a teenager she had been raped and indecently assaulted by a teacher and his then wife. The defendants were acquitted of rape but found guilty of some of the charges of indecent assault.  Much public criticism and even personal abuse has been heaped on the barrister. It is no exaggeration to say that on Twitter the barrister seems to have received more adverse comment than the convicted defendants.

Frances Andrade, a highly regarded violinist and past pupil at Chetham’s, took her own life last month after being subjected to harsh cross-examination during the trial of Michael Brewer, a former director of music at the school and an internationally recognised choirmaster. Mrs Andrade, 48 years old and a mother of four, had dreaded giving evidence against Brewer, whom she accused of raping her at the age of 18 and indecently assaulting her between the ages of 14 and 15. Brewer, 68, was cleared of rape but convicted on five counts of indecent assault. His former wife Kay, 68, was found guilty of indecently assaulting Mrs Andrade at the time of the alleged rape.

Barristers exist to represent clients – whether the client is the state, a company or an individual. They advise clients, usually at times of stress for them, and help them reach decisions about their cases. Barristers do have responsibilities to others as well but their core role is to act in the best interests of their clients. They must do so with integrity but fearlessly.

Everyone is one false allegation away from being at a jury’s mercy. Imagine you were accused of an offence from decades ago and that you believed your accuser was giving false evidence in court. It is their word against yours. What kind of justice would be served by your barrister refusing or failing to challenge that witness’s evidence in the most effective way she can?

This is not an homage to strangulation. It is not okay. It is very wrong, as is punching, kicking, or any other harm done in the course of domestic violence. It is a crime, and should be treated as a crime, and it reflects a deeply troubled person. I do not take it lightly.

But that said, it should neither be exempt from the rationale of aggravating factors in the determination of the severity of a crime, nor the next crime to manufacture its own mythology of “expert proof” to facilitate convictions.

The  New York Times reports that a 2010 law making strangulation a class “D” felony, where it would otherwise be a misdemeanor assault isn’t panning out as well as prosecutors and advocates against domestic violence hoped:

New York’s law, like dozens of choking statutes across the nation, is popular with law enforcement officials. In 2011 in New York City, 1,458 domestic violence assaults that would have been considered misdemeanors under the old law — more than 9 percent of them — were charged as felony strangulation.

But second-degree strangulation — choking to the point of injury, impairment, stupor or unconsciousness — can leave ambiguous marks or no marks at all, making it tricky to prove. “If you don’t know how to follow the bread crumbs it’s very easy to miss,” said Gael Strack, chief executive of the National Strangulation Training Institute, an anti-domestic-violence group based in San Diego. Of the thousands of defendants charged in New York City, fewer than 20 have gone to trial, state officials said. Experts say that thousands of police and medical professionals around the country have not been trained on how to execute the new statutes.

The idea for the law is grounded in the argument that choking, because it doesn’t involve a weapon (and no, the use of hands is not a weapon, at least for now), is a gateway crime to murder.

Choking, experts say, is one of the most pervasive forms of domestic violence, with its overtones of power and control, and one of the best predictors of more serious violence. “A woman who has been choked is seven times more likely to be the victim of a domestic violence homicide later,” Ms. Strack said.

The problem, for the purpose of charging and prosecuting, is that if choking doesn’t result in serious injury, it’s fails to fulfill the elements of a felony, absent a law that specifically makes it a felony. Is it true that a woman choked is seven times more likely to be murdered? It’s hard to say, as the article offers nothing but the bald assertion, and statistical claims in domestic abuse, like sexual assault, are notoriously unreliable. They play well to audiences, though.

This gives rise to two very deep concerns. First, that an industry will pop up to teach police and “experts” how to follow the bread crumbs and see evidence where no one else can find it. We’ve seen the same with bite marks, dog sniffs, arson patterns. Forensic science that was once believed conclusive, such as fingerprints and shaken baby syndrome, are now being recognized as scientifically questionable.  So why not create yet another “science” dedicated to proving guilt where mere mortals can find no evidence?

The second concern is that laws targeting strangulation depart from the scheme of aggravating factors that provide a consistent and rational structure for the severity of crimes and, therefore, punishment. There are three paths by which laws increase the severity of a crime, the first being the use of weapons in the course of the commission of a crime, the second being the mens rea and the third being the extent harm done.  The concept behind them is to both provide a disincentive to exacerbate a wrong and to tailor, as narrowly as possible, the crime so that conduct that is less harmful or morally culpable won’t be swept in unintentionally.

In the case of choking, this is particularly problematic, both in terms of proof and severity.  The argument is that evidence of choking, primarily bruising about the neck (the article talks about “petechiae,” broken blood vessels, as “suggestive” of choking, there being no observation of bruising), will exist if it occurs for real. By that, I mean it’s not merely touching the neck, or some hold that falls short of choking, but an actual attempt at strangulation.  In the absence of any physical evidence that it happened, choking is no different than any other claim. While advocates against domestic violence don’t like hearing this, the fact is that false claims happen. This is why evidence is needed.

The other question is whether it should rise to the level of a felony when there is no consequential injury. Certainly, no one is arguing the pounding a person’s head against a bath tub is a good thing, and yet if it causes no injury, it’s a misdemeanor. What makes choking different?  The answer apparently goes back to the allegation that it is “one of the best predictors of more serious violence.”  which would support both a deterrent purpose as well as an anticipatory retribution purpose. Whether it’s true that it’s a “best predictor” and whether it sweeps others who would never again engage in violence into its clutches, is a problem.

There is no advocacy group for Guys Who Choke Women to challenge these claims, thankfully. But that means that claims go unquestioned, and laws are enacted without consideration of how they fit into the scheme of criminal law or their unintended consequences. This is particularly true when the crime relates to an interest group, such as gender related crimes, that is so concerned with its focus that its willing to ignore or deny the factors militating against its position. They are willing to sacrifice the innocent to convict the guilty. They accept the conviction of a person who culpability falls short of its mark to get the guy they want.

Cherry picking crimes to be elevated in severity and punishment because of trends and political concerns, despite the inconsistency with the scheme of crime, is a slippery slope. The case can be made that all acts of violence, whether against women or against anyone, are bad, but that’s why they’re crimes to begin with.  There are people who would favor life in prison for anyone who engages in violence, unconcerned with the details that form the basis for a rational scheme of criminal law.

Worse still would be the creation of another dubious forensic science designed for the purpose of facilitating convictions because they just aren’t convicting enough people. We all love babies, and yet look at the damage shaken baby syndrome has done.  Eventually, there will be advocates for the wrongly convicted who will stand up against bad laws and junk science, but that comes only after the harm is done. 

Who would be stupid enough to question and challenge something so awful and despised as choking women beforehand? Yet that’s the only way to prevent the tragedies that come later.  As awful as choking another person may be, wrongfully convicting someone of a felony for it isn’t the answer.

The aphorism is “once bitten, twice shy.” Apparently, that’s not part of the instruction at the police academy in Gresham, Oregon, of Officer Taylor Letsis might have chosen not to flex his muscle. Again.  The first time, a video recorded Letsis and some pals  beating and tasing a 68-year-old man for not having a ticket on the transit system. Don’t scoff. It’s a gateway crime.

This happened last November, 2012, and naturally resulted in a significant investigation and repercussions for the needlessly violent conduct of police officers nothing, which could contribute to the absence of pain from having been once bitten.  Nonetheless, Letsis decided to double down when he saw Carrie Medina taking video of a bust.  And Carrie Medina caught it on video. How cool is that?  Via  Carlos Miller at Photography is Not a Crime :



To his credit, Letsis doesn’t pull out his taser, apply a chokehold or even throw Medina to the ground, then ram his boot into the small of her back. You know, for his safety because he was in fear.  Rather, he is merely insistent that he’s going to do as he pleases because, well, he is in a uniform, has a gun strapped to his hip and can, if he was so inclined, beat the living daylights out of Medina.  

Keeping her cool as well, Carrie Medina asks why Letsis thinks he has the authority to order her to let him see, or have, her cellphone.  This is an important lesson as well, as one of the frequent problems that arise from such interactions is that the person doing the recording gets nervous, behaves poorly and provides an excuse, regardless of whether it’s sound, but subsequent police conduct.  While it may not be of legal consequence, to the extent videos serve to make people understand better the impropriety of police exceeding their authority and violating people’s constitutional rights, they will look for any excuse to dismiss the victim as having asked for it. Carrie Medina gives Letsis nothing.

But doesn’t the police officer have the right to seize “evidence”?

A spokesperson for the Gresham Police Department told KATU News officers are not supposed to seize phones used on public property but declined further comment Wednesday night.

“Ma’am, do you want to hand me the phone or would you like to show it to me?” the officer asks.

“I don’t want to show you …,” Medina begins to respond. At that point the officer snatches the phone from her while it is still recording.

Under the withering cross-examination of Bloomberg Law’s Lee Pacchia, Case Western Reserve Law School Dean Lawrence Mitchell played his trump card:

It’s not clear to me there’s an oversupply [of lawyers] problem at all.

With so many legal needs of the poor going unmet, “finding different paths for people who truly want to be lawyers opens up all sorts of possibilities” for law graduates to find jobs, he maintains.

The answer omitted the most salient detail that lingered in the minds of new lawyers. How are they supposed to eat?  Seven years of school, meaning seven years of tuition and seven years of not earning a living, add up. And then they still need to eat anew every day. The numbers don’t work.

The academic concern for the segment of society for whom competent legal representation is too expensive is admirable, but the lack of realization that there is no possibility that lawyers can satisfy this underserved need unless society subsidizes the cost or supermarkets start giving lawyers free food remains a problem.  There is plenty of unrealistic chatter, but little effort at a real solution.  The promise of “pie in the sky when they die” hasn’t made many converts.

This may well change, and change very quickly. If so, it’s going to start in Washington State.

 Limited License Legal Technicians

 Admission to Practice Rule 28

The Washington Supreme Court adopted the Limited License Legal Technician (LLLT) Rule, effective September 1, 2012. This rule authorizes non-attorneys who meet certain educational requirements to advise clients on specific areas of law, which have yet to be determined.

WSBA’s role is to maintain the high standards set for the legal profession while serving as the regulators of this new rule. The goal is to ensure quality implementation aimed at supporting WSBA members and upholding protection of the public. There is no other state with a similar LLLT rule. This rule provides Washington the opportunity to lead the nation in expanding legal services for the people of our state.

Sound familiar? It should, if you’ve been a regular reader here. While the language is different, the concept is remarkably similar to my proposal for the creation of the position of Legal Practitioner,  While Washington is first fleshing out the details of its new position, with the flashy title of LLLT (which I, if I were them, would call 3LT), the concept is nearly identical to mine. Smart guys on that Washington Supreme Court.

One of the greatest fears of legal academia is that law school will be turned into auto mechanic school in an effort to make it practice oriented. In fact, a  bizarrely  disingenuous  debate over this is raging at PrawfsBlawg, reminding thoughtful people how fortunate we are that some of our smarter brethren become scholars rather than advocates. Unlike lawyers, a 3LT will be far more auto mechanic than doctrinal theorist.

Guess what? When your car breaks down, an auto mechanic is what you need. You don’t want a discussion of the effluvia of the law. You want someone who can inexpensively, quickly and properly replace your fan belt.  It doesn’t take Harvard to gain this know-how.

While this will certainly suck some of the low-level, bread and butter work out of lawyering, the fact remains that a generalist education isn’t required to perform more discrete legal services. It doesn’t alter the problem of oversupply, which must eventually be confronted by those profiting off the law school cash machine, but it finally addresses fulfillment of the needs of an underserved population in a society where legal requirements touch nearly every aspect of life.

Will the 3LT be capable of fulfilling that niche? Don’t they need to eat too? Well, sure, but then, they won’t need a working knowledge of Friedrich Nietzsche or European literature to do so. Picture, if you will, a technical school, along the lines of what  Sanford Brown College does for medical technicians, inexpensively  and expeditiously turning out 3LTs fully capable of handling simple wills and trusts, uncontested divorces, UCC and corporation filings. Forget about seven years, and think two years. At night. Over the internet. In their bathrobe.

While they may not be privy to the magic of Kingsfield’s having been taught to “think like a lawyer,” they are more than adequately equipped to distinguish the needs of a client within a niche of law practice. These are not mindless commodity positions, but sufficiently limited so that 3LTs will possess adequate knowledge and discretion to provide excellent legal representation within a very tight practice area.

And the best part of this concept is that it actually has the potential to work, to serve the needs of people who aren’t flush with expendable income, but are capable of paying a reasonable fee for the services they need, if only lawyers would be kind enough to charge a fee that meets their financial situation while sufficing to cover the lawyers’ costs.

Since the downturn has conclusively proven that this will never happen, and as experiments in inexpensive legal representation will never get any better than the current situation of gross oversupply and still no one will to serve the financially modest American, the time has come to recognize that society doesn’t need more Harvard trained lawyers, but could really use some damn good auto mechanics.  And Washington State plans to make sure the every citizen’s car is running like a dream. That’s the future.