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.

While the futurists keep pontificating about how the internet brings transparency to the “opaque” law, I keep seeing entrepreneurs trying to find new ways to glom a few shekels off the top by marketing lies to the unwary. A series of shameless twits came across my screen yesterday for a new co-op advertising scheme called Campus Lawyer.  An underserved niche?



So this is transparency?  “They’ll be sure to get you off”?  Nothing misleading there, right?

What disturbs me most is that college kids who get in trouble, and it certainly happens, are a particularly vulnerable group.  Old enough to be treated as adults. Immature enough to do stupid things.  Smart enough to realize that they don’t want mommy to know they screwed up while dad is working two jobs to pay the tuition, yet stupid enough not to realize that this is just a marketing scheme.

The scheme is run by Sergio Smith, a marketer of sorts out of Boca Raton.  It strikes me that he’s onto a pretty good idea in terms of a group of people who will need the help of a lawyer.  It also strikes me that his approach is appalling.



There is a click-through disclaimer at the very bottom of the page, which no one will find or read. In the meantime, the ad copy makes it appear that Campus Lawyers is the firm with “experience attorneys nationwide,” who are “top rated lawyers.”  Top rated? By Sergio?

One of the typical responses to such schemes, voiced by those who use or support the use of co-op advertising schemes, is whether there is any proof that anyone is fooled by deceptive marketing.  The answer is self-evident: to the extent anyone falls for it, they’re fooled.

Nowhere does the page inform a reader that this is merely a co-op advertising scheme, where attorneys who want/need the business pay to become part of the group. At the same times, it’s deliberately framed in a way designed to give a false impression, that it’s a firm, that the attorneys are somehow vetted for quality and appropriateness and that the larger entity, Campus Lawyers, has some connection to law. Sergio may be a smart marketer, but he’s no lawyer. Did you happen to see Sergio’s name anywhere on the page?  In fact, did you happen to see any entity other than the amorphous Campus Lawyers?

So having come up with the (admittedly smart) realization that there is an untapped group out there who may well need legal representation, has no clue where to turn and is particularly naive and vulnerable, Sergio has crafted a business, is promoting the daylights out of it and, apparently, is signing up lawyers. 

Whether the lawyers are great or horrible is neither known nor the point. The point is that this fabulous future of legal marketing isn’t honest and takes advantage of kids.  I can’t blame Sergio for his failure to adhere to the ethical obligations of honesty that are demanded of lawyers. He’s no lawyer.  But I can certainly question how any ethical lawyer, taking even a casual view of the scheme (and that horrendous video), can feel comfortable being a part of this.

I know, you’re a wonderful lawyer who provides excellent representation, so joining up with a somewhat questionable co-op advertising scheme is just a way to bring clients through the door where you can perform your magic.  Are this makes being party to this scheme cool with you, right?  And this is transparency?

An  old friend of mine twitted at me in the hope of getting my goat:

Greenfield silent on ADA plea bargain in EMT assault? Is voluntary intoxication a defense for intentional conduct??

I can’t imagine his profs at Columbia J-School would have thought well of his double question mark, but he was chiding me into a fuller discussion than twitter can afford. Even though a twit is limited to 140 characters, there’s always room for excessive punctuation.

He was referring to the case of former Brooklyn Assistant District Attorney Michael Jaccarino, who got so blotto on night that he was found wandering the Brooklyn Bridge. Contrary to romantic movies, this isn’t a good idea, and nobody unfortified or unsuicidal would do such a thing.  He was picked up by an ambulance, where the story got even uglier.

The prosecutor, Michael Jaccarino, had been seen wandering, intoxicated, on the roadway of the Brooklyn Bridge in November. An assistant district attorney from Manhattan said that after the ambulance picked him up, he unbuckled himself from a gurney, struck an emergency medical technician, Teresa Soler, held her down with his forearm pressed against her neck and choked her.

Jaccarino has no memory of the event. Having avoided choking EMTs prior to the incident, it doesn’t appear that he had a violent nature or was inclined to EMT beating. Yet it happened. 

He was charged with 2d Degree Assault, but the case ended with a plea to misdemeanor assault and ten days of community service? 

Mr. Jaccarino was initially charged with second-degree assault, a felony, but the assistant district attorney, Sherita Walton, told a judge in Manhattan Criminal Court that her office had decided to charge Mr. Jaccarino with reckless assault, a misdemeanor and allow him to resolve the case by pleading guilty to that charge rather than to a felony.

Mr. Jaccarino was so drunk, Ms. Walton told Judge Melissa A. Crane, that it would have been difficult to prove that he meant to assault Ms. Soler. She added that if Mr. Jaccarino’s “intoxication was of such an extent and nature to render him incapable of forming the particular criminal intent, then he would not be criminally responsible for committing this crime.”

My buddy was confused, wondering how voluntary drunkenness could get him a pass on the attack. The problem wasn’t that being drunk meant you get to attack people with impunity, but that when crimes require specific intent, as was the case with Assault 2, the ability to formulate the intent is affected by drunkenness.

Penal Law 15.25 codifies the point:

§15.25 Effect of intoxication upon liability.

Intoxication is not, as such, a defense to a criminal charge; but in any prosecution for an offense, evidence  of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged.

The  jury charge provides that it’s left to the jury to determine whether intoxicants affected the defendant’s mind to such a degree that he was incapable of forming the intent necessary for the crime.

The courtroom was filled with EMTs, who were terribly dissatisfied with the perceived “slap on the wrist” given Jaccarino. He did some damage to one of their own, and they wanted payback.  My buddy, who’s job it is to impart wisdom to that aging segment of society who gets their wisdom from TV news, found it hard to imagine that voluntary drunkenness could be a defense to an assault. Was this an instance of one prosecutor doing a solid for another?

The way crimes are structured (or at least should be, provided there was no recent death of a child) is that aggravating factors increase the level of severity, and hence punishment.  Was drunkenness a defense to assault? No. But it does mitigate the degree of culpability, as evidence that the defendant couldn’t form the specific intent to commit the crime.  Does that make it less of an assault? No, but it does make it difficult (and in this case, likely impossible), to prove Assault 2 with its intent element.

Jaccarino lost his job. Jaccarino will carry a misdemeanor conviction, which is no big deal if your future is a life of crime, but is a pretty big deal if you’re a lawyer.  The ten days community service is a throwaway sentence, and it wouldn’t be a surprise to get a split sentence, anywhere from 30 days to 6 months, if he hadn’t been a prosecutor, for the misdemeanor assault.  It appears that the collateral consequences weighed on the sentence, and they should.

Did Michael Jaccarino mean to harm EMT Teresa Soler that night? Does anyone really think there was a violent nutjob hiding in the prosecutor’s suit, waiting for the opportunity to attack in the back of an ambulance?  Or was this an anomaly, a drunk who did something he would never otherwise do?

It seems as if an attack as violent as that perpetrated on Soler by Jaccarino ought to carry a heavier price, not because he was an evil, violent guy, but because he did some real harm to a person who was there to help him, a person whose career was dedicated to helping others and who was vulnerable to attack. It’s ugly, and no one can blame the EMTs from wanting Jaccarino to be made an example so that others would know that you don’t attack an EMT and get a slap on the wrist.

It’s not that anyone, Jaccarino included, gets a free ride on an assault because he was drunk.  He didn’t, whether the ten days was sufficient or not.  But the scheme of severity and sentence that goes with aggravating and mitigating factors is intended to provide lines not to be crossed. Would a sober Michael Jaccarino have assaulted Teresa Soler? If not, then the aggravating element of intent wasn’t met.

And as to whether the prosecution cut a break to one of their own, perhaps. Or perhaps this is how the system is supposed to work, but too often the prosecution doesn’t sufficiently take into account mitigating factors, such as the inability to formulate specific intent, and fails to offer a sentence that is properly suited to the moral culpability of the defendant.  The point isn’t to be needless harsh to the former prosecutor, but to me more merciful toward all.

Hope that helps, pal. And if I didn’t mention it before, one of the things I’ve long admired about your reporting is your desire to get it right. It’s why you’re one of the best around.

Hot on the heels of the  Obama administration’s white paper on its authority to kill at will, the  New York Times offers an editorial compromise.  Remember, even when something is inherently wrong, there is always someone happy to compromise principle rather than just say “no.”

No American prosecutor can imprison or execute someone except on the orders of a judge or jury. That fundamental principle applies no less to the suspected terrorists that the executive branch chooses to kill overseas, particularly in the case of American citizens.

A growing number of lawmakers and experts are beginning to recognize that some form of judicial review is necessary for these killings, usually by missiles fired from unmanned drones.

A special court, which we first proposed in a 2010 editorial, would be an analogue to the Foreign Intelligence Surveillance Court that Congress set up in 1978. If the administration has evidence that a suspect is a terrorist threat to the United States, it would have to present that evidence in secret to a court before the suspect is placed on a kill list.

The FISA court, a model for the future because it has worked out so very well.

The surveillance court is often considered a rubber stamp; out of 32,000 wiretap applications presented by the government from 1979 to 2011, it rejected only 11. But its presence has helped ensure that the administration’s requests are serious. In 2002, it ruled that the Department of Justice had overstepped its bounds, giving prosecutors too much authority. (That decision was later overturned by an appeals court.)

The position of the Neo-Warriors, while anathema to those of us disinclined to adopt the view that calling something a “war” makes it so, at least has the benefit of being a principled position. They believe in an imperial presidency, and that the authority to safeguard the public entitled the president to kill at will. As strongly as I may disagree with the view, at least I can respect the consistency of the position.

The Times, sadly, tries to split the baby.  Of the many blights on the legal system, the FISA courts is one of the worst.  It is reminiscent of the star chamber, where one side (lemme guess, the prosecution?) gets to go in, on its own, present its evidence and, without anyone to dispute its claims, gets its order. This is the appearance of process without any substance. Can you imagine how utterly awful and baseless the 11 wiretap applications must have been to get rejected?

When word got out that Congress had set up secret FISA courts back in the late 70’s, there was outrage among a select group of lawyers (lemme guess, criminal defense lawyers?) that such a thing could exist in the United States. Secret courts? Totally one-sided, throwing the constitutional rights of Americans under the bus without anyone to question, or even know, what was happening? 

Time heals all wounds, and this one scabbed over nicely.  The FISA courts have become an accepted part of the wiretapping landscape, and their existence doesn’t raise a peep anymore. What was once unthinkably outrageous is now just another piece of the least dangerous branch. 

So if the FISA courts, the rubber stamp of the prosecution’s arsenal, has become so widely accepted, why not create more secret courts?  Why not create a secret court to provide judicial authorization for the executive to execute our enemies?  For crying out loud, these are the enemies of America!  The president says so, and he wouldn’t lie.

Maybe not, though he could be wrong. But the secret court being asked to rubber stamp the kill order would never know because there would be no one there to offer a contrasting view, to question the assumptions, to challenge the evidence.  And there would be no one even aware that Sam Smith was just rubber stamped until the proud announcement that he was no longer with us, terminated with extreme prejudice.

If it’s acceptable that the executive branch maintains a kill list of those it perceives to be enemies of our nation, then why create another secret court to put on a dog and pony show that creates the appearance of legitimacy without the substance of due process?  Are Americans so vapid as to be satisfied with theater in lieu of actual adversarial scrutiny?  Will this be Real Housewives of the Judiciary?

Worse still, one secret court was bad. Very bad. And yet it’s become a part of our judicial fabric. For whatever reason, our acceptance of this singular blight hasn’t given rise to some scholar screaming that we should have secret courts handling all of our sensitive issues since the FISA court has done so spectacularly well in stamping wiretap orders.  But now the New York Times does what others have been too ashamed to do, promote the idea of secret courts as a solution.

No more secret courts, and if it were up to me, the FISA court would go too. But no more. If the President has the authority to kill Americans he deems enemies, as the Neo-Warriors would have it, then no judicial intervention is needed, and the judiciary should refuse to become an actor in the president’s show. 

And if the Chief Executive cannot kill Americans at will because the Constitution of the United States of America does not permit him (or her, when the time comes) to redefine war to mean whatever the Neo-Warriors want it to mean, then no secret ex-parte court order can make it constitutional. 

Just as no one can be half dead, no compromise can make the kill lists more palatable. It’s one of those things that is either right or wrong, and the New York Times’ attempt to split the (alleged) terrorist is completely misguided.

At My Shingle, Carolyn Elefant takes note of a website, Docracy, that has the technology to track changes to  terms of service at sites such as Facebook and Twitter, so that they can’t slip something in there (like use of their service permits them to seize your first born at will) without you knowing. Cool, right?

But the TOS Tracker also got me wondering about another lawyer-related question:   should bar regulators employ technology to monitor or audit law firm websites?

Docracy’s TOS tracker makes fairly clear that the technology needed to track changes on websites is readily available and not all that difficult to develop or implement.  Presumably, designing a site crawler for lawyer websites would be even easier for a bar regulator since it could require lawyers to pre-register their sites, and therefore, the tool would not even have to locate the sites, but simply monitor and ping any changes.  Eventually, states might refine a tracking tool so that it would not simply report changes and updates for review by a regulator, but could evaluate compliance and highlight violations.

Still – even though the concept of techno-driven ethics enforcement intrigues me, don’t think for a minute that I would ever endorse it. Putting technology tools in the hands of a state enforcement agency is risky business. One need look no further than the way that municipalities have converted red light cameras into cash cows to fill their coffers  to get a sense of where technology-enabled ethics enforcement might lead if applied to lawyers.  Plus, I can’t think of anything other than a 6 month stint in Antarctica that would chill lawyers’ First Amendment protected speech as much as a techno-driven ethics oversight program.

This concern is certainly valid, but seems fairly easy to address. While Carolyn is thinking of the bots as not only identifying potential ethical violations, but evaluating compliance on their own, it seems to me that the role could be far more limited, just raising red flags of potential violations, which would then be kicked to the disciplinary staff for review. In other words, the red-light camera issue wouldn’t arise because there would never be a violation found based solely on a bot’s say-so.  Indeed, without a due process component, which is wholly missing from red-light camera violations, nobody should be found to be in violation of anything.

Of course, this may still prove to be too onerous for disciplinary staff, given the ubiquitous nature of dubious marketing content from lawyers.  That raises a different problem, whether ethical violations (and bear in mind that ethical violations are the bare minimum demanded of a lawyer, reflecting such low ethics as to require sanction) are so numerous as to defy evaluation.  That doesn’t speak well of us, kids.  The question is whether it’s too late, whether there are too many violators out there in the ether, to undo the damage now.

My thought is that it’s going to be hard to change the course of internet marketing as it’s been deemed an ethics-free zone for so long, and so many new websites and flawgs are popping up daily, as to make it extremely difficult, if not overwhelming, to clean up the mess.  But we’ve got to try, and if handled both adeptly and with clarity, and results in either sanctions or shaming of sufficient severity as to make lawyers fear being the next one caught so that they go back and straighten out their own house, we may be able to right this ship.

On the other side, the internet could be viewed as freshman year away at college, where all the children get wild and crazy because they’re on their own for the first time in their life.  By the middle of sophomore year, they’ve gotten much of it out of their system and are ready to hunker down, eat properly, get a good night’s sleep and stop binge drinking.  Maybe lawyers will mature and grow beyond the wild, undisciplined nature of internet marketing.  Maybe lawyers will embrace a culture online of honesty and integrity, making the personal choice not to walk the streets in hotpants in the hope of a $20 retainer.  Maybe?

As President Reagan said, hope for the best but prepare for the worst.  While I hope that lawyers grow up and stop binge marketing, having the bots around to keep them honest won’t hurt.  Marketing lawyers will hate the prospect of being outed by techno-school marms, but others will welcome the return of a little integrity and something to stop the race to the bottom. I certainly will.

I didn’t realize it until this afternoon. Waiting for maple bacon donuts from Voodoo in Portland to celebrate, but not holding my breath. Just sayin’.

The door opened with a post by Eric Miller at  PrawfsBlawg where he made the mistake of conflating doctrine with practice in the headline:

The False Dichotomy Between Practice (Doctrine) and Academics

I’ve made the argument in previous postings that interdisciplinarity is necessary to understand low-level courts.  But I also believe that interdisciplinarity is an essential party of *any* law school education, elite or *non-elite*.  That’s why I’ve been so disappointed by some recent attacks—in the name of educational pluralism or practice-readiness—on interdisciplinary approaches to law as so much academic self-indulgence by faculty.  The idea appears to be that there is a dichotomy between what lawyers need to know and what “academics” teach, and that often rides on the back of an argument that what “academics” teach is fit only for those folks at the top law schools who want to become academics themselves.  I think this is a false dichotomy, and it shows a profound ignorance of much of legal practice, and certainly practice in lower courts or the non-elite end of the spectrum. 

Based on some of the more vehement reactions to Eric Miller’s recent post, it seems to me that a lot of us are talking past one another when we use words like “practical” and “skills.”  “Skills” are like free speech:  everyone agrees it’s a good thing but no one can agree what it is.

Doctrine: The rules of law applied to factual scenarios.
Practice: The way things actually happen in court.
Skills: The things lawyers actually do to represent clients.

But by the same token, one cannot be an effective attorney if one cannot, say, negotiate a plea offer or a business deal.  So it comes down to what can realistically be taught in three years and what must be picked up in practice.  And, yes, some skills must await practice to be developed.  The notion of a lawyer being “practice ready” upon graduation is simply, for lack of a better term, horseshit. 

A comment from a regular reader, which you are free to ignore or even delete: It may seem prudish and trivial, but I enjoy posts less and am less likely to be persuaded when the author includes words like “horseshit.”

When I was in law school, I took a class on Trial Advocacy that included how to give an opening statement, direct and cross examinations, and a closing statement. I think that’s one example of skills training. Similarly, in a class in crim pro, skills training might include drafting or responding to a motion to suppress.

At my school, “skills” evidently includes training in meditation and mindfulness. So, I guess the range is from “Where is the courthouse” to Eastern religion. Of course, teaching skills will not stimulate the demand side of the market. BTW, on the Texas Bar exam when I took it was this: Draft an Indictment.

It was another instance of “saved by the video,” as Brooklyn resident John Hockenjos didn’t stand a chance otherwise.  He was accused of trying to run down NYPD Officer Diego Palacios, who heroically jumped out of the way. 

Hockenjos was arrested and spent three days in jail before he made bail.  When he got out, he located a video of the incident which conclusively proved that Palacios fabricated the story. The video got plenty of play, with cheers from the crowd as Hockenjos’ case was dismissed and Palacios was indicted.  Hooray.

For most, that was where interest waned.  After all, the innocent guy was exonerated and the bad cop would face the music. As reported in Sheepshead Bites, the song didn’t play very long.

“This individual spends four days in prison, with no probation, and he gets out of jail today or tomorrow and he’s a free man to do whatever he wants,” Hockenjos told Sheepshead Bites. “And I have to be in pure fear that there could be retribution. I should not be in this position; there should at least be probation.”

Even more galling, Hockenjos said, is that the assistant District Attorney on the case, Elizabeth Moehle, abandoned all the usual courtesies for the victim in prosecuting the case. Hockenjos said he wasn’t told about Thursday’s hearing until after the fact, and the District Attorney’s office never ran the plea deal by him.

“I started crying right away,” Hockenjos said of hearing news of the deal last week. “I’m afraid now. What’s going to happen to me?”

A spokesperson for Joe Hynes, who hasn’t been shown much love around Brooklyn lately, says that can’t be:

Though not required by law, the District Attorney’s office said that as a matter of policy, their office seeks the victim’s approval for all plea deals.

A spokesperson for District Attorney Charles Hynes told Sheepshead Bites that Hockenjos did give the thumbs up to the deal.

“We never do a plea unless the victim agrees to it. So that actually happened,” said Hynes spokesperson Sandy Silverstein.

Interesting path taken to reach that conclusion. If this is our policy, it therefore must have happened.  If the victim says no one every mentioned it, the victim must be wrong, since this is our policy. In Brooklyn, you can’t argue with a checklist.

Too often, we spend a lot of time and energy on the pivotal moment when the cop gets caught dirty, when the video tape proves that he lied.  The old “why would he lie” argument doesn’t hunt when there is a video, even though the legal system perpetuates its resistance to challenging a cop’s word as long as there is no video to prove otherwise.  We applaud the evidence. We applaud the reversal of fortune.  We applaud, and then move on.

John Hockenjos, unfortunately, won’t find it as easy to move on.

Hockenjos and his wife, Irena, say they live in fear that Palacios and his former colleagues at the 61st Precinct will seek retribution. Since the initial arrest, they’ve been afraid to call officers to report suspicious activity, or to protect them in an ongoing property dispute with a neighbor, who they claim has physically attacked them in the past.

“Now police officers can just shoot us to death and they won’t even face jail time, they’ll just resign from the police department,” Irena said. “This is very scary. I’m afraid to stay in the house; I’m afraid to step out.”

Retribution? By a disgraced ex-cop and his buddies on the force?  But that would be petty and unprofessional, a direct conflict with their duty to protect and serve. Oh wait, the cop lied in the first place. There was no honor to be found in the 61. Never mind.

Cries of lengthy prison sentences for lying cops, huge awards on subsequent lawsuits against the city, warm the cockles of onlookers’ hearts after the initial revelation that there is proof that another cop lied.  A year, maybe a few, later, the results rarely meet such rosy expectations. 

While sentencing in most criminal cases, sometimes at monumental length under the rubric of deterrent, sending a message, is a fiction that justifies decades in prison when no one knows that it happens, it’s different with cops. Unlike the rest of us who move on to the next story of abuse, lies and outrage, the police pay close attention to what happens with their own. Indeed, it’s obsessive, to see if their good buddies in the district attorney’s office or on the bench has shown their former brother the respect he deserves. 

This is where deterrence happens. And it’s also where payback happens, as a prosecutor who comes down hard on a lying cop knows that he will make no friends in the precinct.  It’s one thing to prosecute a cop who harms children, but a cop who lies? That could be anyone. The police know it. The prosecutor knows it. The judge knows it.

In the scheme of worrying about the victim’s feelings and fears, as opposed to the working relationship between the two wings of law enforcement, coming down hard on a lying cop carries problematic ramifications for the future. Hockenjos will go away. The police and prosecution still have to deal with each other every day.  Which relationship matters more?

So John and Irene Hockenjos will continue to live in Brooklyn, in the 61 Precinct, hoping that they never need to call 911 or have a run in with a cop that isn’t videotaped. If something happens, and it very well could, the chances of getting a time served sentence are slim.  At least Diego Palacios is off the force for having lied and copped the plea, which precludes the NYPD for giving him that medal for his heroic leap to safety.

H/T FritzMuffKnuckle

On the heels of the latest threat to sue a blogger by a  sad woman in Connecticut for her personal theory of how the law should work and her paranoid delusions of the evil internet, it’s worth visiting the argument happening in New Jersey over whether blogger Tina Renna, a harsh critic of local government, is a journalist and therefore protected under the shield law.

Union County, N.J., prosecutors demanded Tina Renna give them “the names of 16 government officials who she accused online of misusing county generators after Hurricane Sandy,” Lilly Chapa reports. Renna claimed privilege, and Superior Court Judge Karen Cassidy has ordered a hearing “to further discuss whether Renna is a journalist as defined under the state shield law,” Chapa writes.

That’s the challenge: If we let any blogger be covered by the shield law, so many people will claim the privilege that the exception could swallow up the rule. A line must be drawn, but the courts haven’t identified one. So it depends on the facts of each case

In this case, they conclude, “Yes, she can be a little wild, she’s not the same as a professional reporter and she drives local officials crazy. But part of democracy is putting up with Tina Renna.”