Not Too Unconstitutional

It was huge news when Southern District Judge Shira Scheindlin enjoined the New York Police Department from engaging in the Trespass Affidavit Program, Not so huge was when Judge Scheindlin stayed her own injunction.

It wasn’t that she had doubts as to the flagrant unconstitutionality of the Clean Halls program that purportedly entitled the police to detain, interrogate and, if the mood struck them, search people at will inside and around buildings that had signed up for the program. No, it was a unconstitutional. No doubt about it. But it was inconvenient for the police.

Manhattan Federal Court Judge Shira Scheindlin lifted the order Tuesday after she agreed with city lawyers who said the immediate halt of some “Clean Halls” trespass stops would impose an undue burden on the NYPD, requiring some form of “notification to and/or training of” thousands of NYPD officers and their supervisors.

Imagine how inconvenient complying with basic constitutional notions such as reasonable suspicion must be for cops who would require “notification to and/or training of.” They may teach them how to testify credibly in the Academy, and give them detailed pointers on the Reid Technique, but that left no time to go over that Constitution thingy. And now they’re just supposed to get it? Talk about undue hardship.

The New York Times has an editorial applauding Judge Scheindlin’s ruling, and imploring the police to just comply with the Constitution because it’s a good thing.

Judge Scheindlin ordered the Police Department to immediately cease trespass stops outside TAP buildings unless officers have the reasonable suspicion required by law, though she has issued a temporary stay. She has also scheduled a remedy hearing in March, at which time she could require the city to take various remedial steps, including a formal written policy explaining the circumstances under which officers can legally stop people on suspicion of trespass.
There are other procedures that can be followed without threatening law enforcement. Instead of defending the indefensible, the city should finally bring the stop-and-frisk program into line with the law. (Emphasis added.)

Did you see what they did there? They just slipped it in, as if it means nothing. Consider that a United States District Court has concluded that the police are engaging in a systematic program that facially violates the Fourth Amendment to the United States Constitution, but, despite having reached that holding and despite not backing off that holding in any way, has authorized the police to continue to engage in the unconstitutional program.

What are you going to tell those individuals whose constitutional rights are violated during the gap, between the lifting of the stay and the eventual imposition of a remedy? Sorry, guys, but it was just too hard for the cops to follow the Constitution, so you lose your rights?

Hasn’t anybody mentioned to Commissioner Ray Kelly that he could just shoot out a blast email to all the brothers that they can’t detain anyone under TAP anymore? Didn’t anyone suggest this to Judge Scheindlin?

In anticipation of some snarky cynic stating the obvious, that this will be replaced with lies about furtive gestures or guys grabbing their crotches, or one of the hundred other lies used to ignore people’s right to be left alone, well yeah. Obviously. But it is still better that a court held that a program that’s facially unconstitutional is facially unconstitutional. We take adherence to the Constitution where we find it, even though it begets subterfuge to circumvent it.

Yet, the New York Times, rather than concerning itself with the fact that a ruling that took a generation to come remains unenforced, or that living, breathing human beings will continue to have their constitutional rights violated because it would make the police sad, ignores the problems that don’t fit neatly within its paradigm. And thinks that asking the police nicely to follow the Constitution is worthy of an editorial.

It’s unclear whether they just couldn’t care less about the people uptown who will be detained for no reason, agreeing with Justice Scalia that some will have to take one for the team, or they just don’t worry their pretty little heads over such matters that are bad, but not sufficiently unconstitutional to be worth calling out.

Much as I admire Judge Scheindlin’s independence and concern for constitutional rights, backing off her order, and thereby giving the green light to what she has already held to be unconstitutional, makes no sense. Not even if the New York Times isn’t bothered by giving away other people’s right.

Google Just Said No

For a brief, shining moment, Sen. Patrick Leahy told us he was going to make law enforcement get warrants to obtain our information from the internet. And then, poof, it was gone. Law enforcement patiently explained to the good senator that it would make their lives more difficult, and he said, “Oh no, we can’t have that.”

But there was another way. A way that few of us considered, and fewer still ever believed could happen. While the law required nothing more of the government than the mere asking, it didn’t require the recipients of the request to comply. The targets of government subpoenas for our lives weren’t obliged to cooperate.

And someone at Google, maybe the Jolly Good Fellow, decided to just say no. In an article in Wired, via Grits for Breakfast :

The development surfaced as Google publicly announced that more than two-thirds of the user data Google forwards to government agencies across the United States is handed over without a probable-cause warrant.

A Google spokesman told Wired that the media giant demands that government agencies — from the locals to the feds — get a probable-cause warrant for content on its e-mail, Google Drive cloud storage and other platforms — despite the Electronic Communications Privacy Act allowing the government to access such customer data without a warrant if it’s stored on Google’s servers for more than 180 days.

The government asked. Google delivered. That’s the way it worked. Until now.

Google demands probable-cause, court-issued warrants to divulge the contents of Gmail and other cloud-stored documents to authorities in the United States — a startling revelation Wednesday that runs counter to federal law that does not always demand warrants.

“Google requires an ECPA search warrant for contents of Gmail and other services based on the Fourth Amendment to the Constitution, which prevents unreasonable search and seizure,” Chris Gaither, a Google spokesman, said.

What Congress is too cowardly to give us, Google will provide.

The significance of Google’s new stance, its demand for a search warrant before turning over information to the government, cannot be overstated. Entire lives are online, our most personal information and most private moments, exist on third party servers. The courts, explaining that by handing our information over to the cloud, say we have forfeited any reasonable expectation of privacy, though most ordinary people have no idea what they’ve given away.

Whenever a court has concluded that the third-party doctrine lives, it regurgitates the words of computer experts, who explain how the tubes of the internet actually work. Most of us don’t know, or care, how it actually works, and we’re just pretty happy that we can watch funny kitten videos on Youtube from our cellphones. It’s a miracle. It’s less of a miracle should your life be laid out before you from your search history and emails.

The fact that neither our courts nor our legislators feel particularly concerned at how privacy has been eviscerated by a doctrine that makes no sense whatsoever in the digital age, and how the reasonable expectation of privacy of ordinary people died a quiet, but horribly painful death, left many to believe that there was no hope for the future of privacy. Google’s change of policy offers new, unanticipated hope.

That doesn’t mean, however, that private corporations will provide a public service by honoring the Constitution where governmental entities will not.

It was not immediately known whether other ISPs are traveling Google’s path when it comes to demanding probable-cause warrants for all stored content. But Google can seemingly grant more privacy than the four corners of the law allows because there’s been a string of conflicting court opinions on whether warrants are required for data stored on third-party servers longer than 180 days. The Supreme Court has never weighed in on the topic — and the authorities are seemingly abiding by Google’s rules to avoid a high court showdown.

Whether that last sentence is accurate is doubtful. It’s hard to imagine the FBI shaking in its boots at the idea of Justice Scalia becoming a champion for internet privacy. Rather, the question is whether Google’s refusal to honor “requests” in the form of a disconnected subpoena will subject it to sanctions. The principled stance taken by Google may crumble if fines start piling up, or even incarceration of the Jolly Good Fellow for contempt.

As for others Internet Service Providers, they may wait to see what happens to the 800 pound gorilla of the internet before deciding whether to stare down the government. Or they may be more than happy to be compliant servants of law enforcement, offering up whatever they have and sending a box of donuts along for good measure. It never hurts to have friends in high places. With full stomaches.

For now, at least, Google has decided not to play the game any longer. If the government has a warrant, they will honor it as the law requires. But without a warrant, the government can stick it. That’s guts.

For quite a long time now, the argument has raged over whether the Fourth Amendment protects our digital lives from unfettered intrusion by the government. The fight has not gone particularly well for privacy, and the foremost scholar on the subject, Orin Kerr, has not been particularly supportive of what most people reasonably believe to be private.

And so Google has decided not to play the government’s game as a matter of principle. Well done, Google. You are a jolly good fellow, which nobody can deny.

Breaking News: There’s Something Called “The Internet”

I stopped by the office of an old friend the other day, a lawyer of a shared “certain age,” and spoke the official secret lawyer greeting. “Quiet,” he responded. “Dead, actually.”

We talked a bit about it, and then he asked me a question.

I got an email from some website that said they had checked me out and wanted me to be their exclusive litigation guy in New York, that they had all these clients and needed someone here and I was their guy. You know about this internet stuff. What do you think about it?

I asked him how much he had to pay for the “honor” and he gave me an ungodly number. I explained to him about co-op advertising, that they didn’t really “check him out,” and probably sent the same email to a thousand lawyers. Whoever agreed to pay the sum first would be “their guy.” He nodded, and said, “that’s what I thought.”

Then he told me, “but I feel like I’ve got to do something. It seems like everybody is putting some sort of bullshit award on their website, they’re Super Lawyers or Best Lawyers or Million Dollar Lawyers or whatever, but something. I feel like I’m the only lawyer left who doesn’t have some award on my website.”

I asked him who he thought was impressed by it. Did he think anyone got a client because they claimed to some nonsense superstar? Did he think anyone who would retain him otherwise decided not to because he didn’t have an award?

He shook his head “no.” Then he said,”I don’t know. No, I don’t think so, but I’ve got to do something.”

For those lawyers who have been engaged in the digital world for a while, all of this is old news. We’ve seen the scams, the lies, the schemes that promise wealth and success. The only people making any money off the scheme are the schemers. What we aren’t really attuned to is that the bulk of the profession remains on the other side of the digital divide.

Sure, they have email. Yes, they have a computer and know how to google. Maybe they got a static website, probably though an old, reliable company they’ve used for decades. Chances are good they’ve never looked at it since the day they paid the first bill. They have no blog, read no blogs, There is nothing a guy like me has to write that they are likely to read. I can explain and warn all day long. They won’t see it.

When business slows down for a while, they do what any normal person would do. They try to come up with a way to do better. They are ripe pickens for the schemers. When is the last time you took a look at the internet through the eyes of someone who has never really been here before?

“What about Avvo,” he asked. “You used to think Avvo was legit?”

I told him about Arkady Bukh, who had a banner on his website that says he is “Ranked #1 of 842 Criminal Defense Firms in New York City,” according to Avvo. But Avvo does no such ranking. When I asked Josh King, Avvo’s general counsel, why then do they do nothing to shut this down, I got a song and dance. “So it’s all nonsense?” Yes, it’s all nonsense.

He laughed and mused, “so instead of paying one of these jokers for an award, I could just make something up and nobody would know or care.” Pretty much. We laughed about it, but we both knew it wasn’t funny.

For a long time, it was only us early adopters who were integrally engaged in the internet. Others got websites because they heard that they were supposed to get websites, but that did nothing for them. It was just like the sign on the door, expected but otherwise unhelpful. Some put a lot of money into a nice website, even with a cool logo, which meant they were out that much more money with nothing to show for it. They read some marketer’s pap and followed the rules laid out in ID ten T format, waiting to hear the phone ring. Instead, they heard crickets.

It was just a small percentage of us who became engaged back then. Now, more are coming. Not so much engaging, but trying to the extent they have any grasp of what happens on the internet. And they are bewildered, confused and ripe for every scam we laugh at. They are told that puffery is the rule, everybody is doing it, and if they don’t, they might as well pack up the office and find a rocking chair.

If it was only the latest wave of scammers playing these games, perhaps we could wave it off. But it’s not. It’s our bar associations running CLEs for credit thrown by chief marketing officers, search engine optimizers, representatives of the cottage industry that feeds off the ignorance of the legal profession. The bar association mavens are just as clueless, but they have heard that this is cutting edge, and while they have no idea who they’ve let in the door, they feel some obligation to join in the schemes. I could blow another 1000 words on the inanity of these CLEs, but out of concern for you, I won’t.

For those of you who are reading this, you are the ones who know to delete the emails that introduce us to our long-lost Nigerian prince relatives, internet lottery wins and instantaneous 10,000 twitter followers. I had forgotten, or at least failed to appreciate, just how little most lawyers know about the internet. They are clueless, like babes in the virtual woods. And marketers are offering them delicious candy, if only they will get in their van and go for a ride.

Maybe they will throw away a few thousand dollars before realizing they’ve been had. Maybe they will be convinced to put on pink hotpants and strut the boulevard. Maybe they will hear the voices of the thousand leeches trying to suck the life out of them long before they hear my voice. Or yours.

But I will keep trying to save my friends, and through them, the profession, from the race to the bottom. I ask you, as a favor, to do the same. Let the lawyers who aren’t as internet-engaged know the truth. Explain the scams and schemes, and tell them not to get sucked in. The scammers may be loud and persistent, but there are more of us, and if we spread the word, maybe we can save our brethren before the harm is done.

There are millions of lawyers out there who have no clue about the internet. They will make a decision today about whether to hop on the magic internet marketing train or not. Today. Tell them the truth, even if you made the mistake and no one saved you.

The Hyperbole of Victimhood Doesn’t Help

Among the press releases received in the old SJ mailbag yesterday was one from Human Rights Watch announcing a 196-page report, “Capitol Offense: Police Mishandling of Sexual Assault Cases in the District of Columbia,” This is no trivial matter, though I lacked sufficient interest to read a report of that length.

But because of my concern for the victims of sexual assault, I read the email, itself a rather lengthy bit of writing. This paragraph stuck out.

“Sexual assault is the most underreported violent crime in the US, largely because many victims fear that their cases will not be taken seriously and that police will not believe them,” said Sara Darehshori, senior counsel in the US Program at Human Rights Watch and the author of the report. “Unfortunately, for some victims in DC who bravely came forward and reported their assaults, those fears were realized.”

It compelled me stop and wonder, if a crime is underreported, then how would you know its frequency? By definition, underreported means you don’t know. And “most” underreported? Most underreported “violent” crime? From what I understand about sexual assault, its definition has grown a bit fuzzy these days. Is it fair to describe sexual assault as a violent crime when violence is imputed by definition of lack of consent, whether before or after the act, rather than conduct?

The explanation for this underreporting, that “victims fear that their cases will not be taken seriously and that police will not believe them,” seems fair as far as it goes, but it strikes me as a bit facile and underinclusive. Aren’t there other reasons, like embarrassment? But if that happens, then it doesn’t quite comport with characterizing victims who come forward as “brave.” Why is it necessary to call a crime victim “brave”? Crime victims should come forward, both for their own sake as well as the sake of others, regardless of whether they’re brave or cowards.

My suspicion is that the imputation of bravery has to do with the claim that their allegations of sexual assault are questioned by the police. Shouldn’t they be? How else to distinguish allegations that are false from those that are true? Didn’t we just go through an incredibly embarrassing infographic about this?

The email goes on to state:

Some sexual assault survivors described to Human Rights Watch callous treatment by police officers, who, they said, openly questioned their credibility and minimized the severity of their experiences.

The phrase “cancer survivors” is commonly used to describe people who overcame cancer. The reason for calling them “survivors” is that cancer kills people. Those not killed are fairly said to have survived. The same cannot be said for people who suffered sexual assaults. They may well be victims, but they are not survivors. This relates direction to the complaint of “callous treatment” by police who “openly questions their credibility and minimized the severity of their experiences.”

Police should openly question the credibility of every person who seeks to initiate a criminal investigation and prosecution. That’s how wrongful arrests and prosecutions are prevented. That’s how innocent people are not imprisoned. Does Human Rights Watch contend that innocent people should be prosecuted and imprisoned? It seems rather contrary to their cause.

As for the severity of their experiences, the use of the word “survivor” belies that complaint. No doubt there are horrible sexual assaults, but similarly there is no doubt that there are perceived sexual assaults that aren’t as severe as others. This may fly in the face of orthodoxy, but just as there is grand theft and petty theft, some are worse than others. They are not all the same, and it hardly behooves the victims to diminish a violent rape from seemingly consensual sex with a person whose capacity to consent is diminished by drunkenness. While the latter may well argue that I am wrong to trivialize his experience, the former, lying in a hospital bed, may well be unimpressed.

By no means do I lack either empathy or concern with anyone who has suffered a sexual assault. Quite the contrary, as I am outraged and disgusted by sex crimes. But my visceral reaction doesn’t mean that I turn suddenly blind to the problems of false accusations or dubious definitions or exaggerations. Concern for one side doesn’t require someone to ignore the other.

Human Rights Watch does many good things, and is worthy of our interest and respect. But it doesn’t help to garner respect when it employs blind hype that suggests it has lost all reason, balance and concern for other issues worthy of its concern. By all means, if the District of Columbia police are unduly callous toward sexual assault victims, it should be reported and challenged.

But let’s not forget that there are other interests involved as well, and when the descriptive language goes over the top as here, credibility is sacrificed. There are many human rights at stake here. When fighting for one, it doesn’t have to come at the expense of others.

Dr. Who?

When someone follows me on twitter, I tend to take a look to see who it is. What someone says about themselves is often revealing, not so much in the merit of their description but as an insight into their character. As Judge Kane wrote, it’s all about character.

Without the formation of character, the rest is futile.

Sometimes, twitter bios are brief and purely descriptive, like “law student” or “criminal defense lawyer. With pathetic regularity these days, they’re an attempt at recreating a roadside billboard, like

Hollins Law: Orange County’s best Trial Attorneys. Praised by judges, juries, peers and adversaries for aggressive yet ethical presentation and fearless trial advocacy.

Maybe somebody on twitter will be incredibly impressed by this bio. Me? Not so much. Jeff Haden explained the problem with an example:

Picture this. You meet someone new. “What do you do?” she asks.

“I’m an architect,” you say.

“Oh, really?” she answers. “Have you designed any buildings I’ve seen?”

“Possibly,” you reply. “We did the new student center at the university…”

“Oh wow,” she says. “That’s a beautiful building…”

Without trying — without blowing your own horn — you’ve made a great impression.

Now picture this. You meet someone new. “What do you do?” he asks.

“I’m a passionate, innovative, dynamic provider of architectural services with a collaborative approach to creating and delivering outstanding world-class client and user experiences.”

All righty then.

Marketers say that if you don’t toot your own horn, who will? The correct answer is everyone who is impressed by your accomplishments, rather than your hype. And if no one is tooting your horn, then maybe it’s because you have no accomplishments. It gives you something to work on.

One thing that could be done to bolster is to get another degree. Of course, that’s time consuming, but then, there are now some online schools, like Capella University, where you can attend without ever attending. And there, you can do what Florida Assistant State Attorney Peter F. Barone did.

This is an announcement regarding ASA Peter A. Barone. On January 7, 2013 Peter A. Barone finished his final defense for his Ph.D. and was officially announced as Dr. Peter A. Barone.

Dr. Barone spent 5+ years obtaining his degree and would like to request that during formal court proceedings that you please refer to him by his proper and legal title, that being Dr. Barone. This request is similar to the manner in which the sitting judge is called Judge or Your Honor, or as his fellow attorneys are addressed as counselor or Mr. or Ms., and not by their first name during formal proceedings.

Dr. Barone would like to thank his fellow colleagues for their cooperation in this matter in advance and realizes that at times it is difficult to remember a title change and is willing to assist by advising and correcting his colleagues during official proceedings of his new and permanent title if they inadvertently forget.

Victor Garcia-Herreros
Legal Assistant for Dr. Peter Barone
State Attorney’s Office of Highlands County
411 S. Eucalyptus Street
Sebring, FL 33870

It doesn’t get more thoughtful than to be “willing to assit by advising and correcting his colleagues during official proceedings of his new and permanent title.” How embarrassed his “fellow” colleagues would feel if they only used his former title. Professor Peter Barone, Esq., (followed by Ph.D.(c), LL.M, JD, MSM, CPP), who, according to the bio he’s written about himself, suggests he’s lived a curious life:

He began his law enforcement career in 1975 in the State of New Jersey and he is a currently working as a Felony Major Crimes Trail Prosecutor in the State of Florida and is cross-sworn as a part time deputy sheriff, part of the Crisis Negotiation Team, and a certified police instructor. As a felony prosecutor in this Florida he is also actively involved in the investigative aspects of felony cases. In his first sex months he assisted the in solving a 20 years old murder case while interrogating the primary suspect. In his first year as a prosecutor he prosecuted and won a capital sexual battery and an attempted murder case. Immediately prior becoming a prosecutor he was a Major Crimes/Homicide Detective, Hostage Negotiator, Aircraft Observer, and Police Instructor for a Sheriff’s Office in central Florida. Prior to this he worked in a Police Department as a road officer and Legal Advisor, and previously as a homicide detective, gang detective, field training officer, and police instructor for the Miami-Dade Police Department.

Apparently, the only thing he’s never done in his impressive career is work as a spelling teacher or an editor. Now in fairness, it’s very nice that Pete got his Ph.D., not that it adds much to his lawyering, but still. However, will he “correct” out of kindness the judge?

Judge: Do you have anything to add, Mr. Barone?

Professor Peter Barone, Esq.: That’s Doctor Barone, your honor.

Judge: My deepest apologies for offending you, Dr. Barone. Suppression granted and case dismissed, Dr. Barone.

In the long-gone past, about five years ago, anyone saying something even slightly self-aggrandizing on the internet would preface it with an apology for their “shameless self-promotion.” They would then present whatever it was, like winning the Nobel Prize, with as brief a factual description as possible, because there were few things less tolerable than a lack of humility.

It used to be that if you had to impress people by telling them how great you are, then you aren’t.  That’s still the way it is. It just hasn’t seemed to stop people from making asses of themselves on the internet these days.

They Shoot Video, Don’t They?

The virtue of having a video of police encounters has been proven over and over, whether because it belies the allegations of a crime or proves them. But then, sometimes the guy with his finger on the dashcam’s “on” button may not want evidence of what is about to happen. Via NJ.com :

Allen Bass, 50, sued Trooper Gerald Dellagicoma and others in 2009, claiming they punched and kicked him multiple times, causing him to urinate on himself, after he complied with their commands to get off his bicycle at Ellis Avenue and Clinton Avenue in Irvington a year earlier.

Bass was charged with various drug offenses that were later dismissed.

It would appear that the drug charges were dismissed when the troopers failed to appear for trial.

The jury in the Bass case found no merit to the allegations that Dellagicoma arrested him without probable cause and subjected him to a malicious prosecution. The jury also found no wrongdoing by the other troopers involved, Christopher Mills and Miguel Holguin.

And what was Bass doing that gave rise to this encounter?

[Bass] was riding his bike July 10, 2008, in Irvington when Dellagicoma and other troopers who were on patrol in the area got out of their patrol cars and ordered him to stop. Bass claimed he laid on the ground chest-down and spread his arms and legs.

Troopers allegedly then punched and kicked him before arresting him. Bass was charged with drug possession, resisting arrest by flight and resisting arrest by force, court documents show.

What makes this special is that in New Jersey, there is a requirement that arose from the racial profiling scandal that rocked the Turnpike, that all encounters with State Troopers be videotaped. The state was kind enough to put cameras in cruisers. Never again would a trooper be falsely accused of profiling a driver just because he was black. (This is known as the “black plus” theory of profiling.)

Except Trooper Dellagicoma didn’t turn on his camera. Oops.

Court documents show Dellagicoma, who joined the force in 2001, failed to activate his patrol car camera and was suspended without pay for 30 days, but only served 15 days of that suspension. Records show Dellagicoma was reprimanded several times prior to the incident for the same infraction.

The plan seemed foolproof. Give troopers cameras and require them to use them. If they don’t, there must be consequences. And consequences there are.

The videos are often critical to proving allegations of wrongdoing, as well as protecting troopers from false public complaints. But not activating a camera is considered by the State Police to be a minor infraction punishable by a written reprimand and a suspension of only a few days.

Of course, the consequences aren’t nearly as severe as the consequences suffered by Allen Bass. Or severe enough to make Trooper Dellagicoma actually turn his camera on. Several times.

The utility of video in revealing what really happens when cop encounters citizen can’t be understated, as it has fundamentally changed our understanding and appreciation of the ugliness on the street. Before, we relied on the sanitized, fantastical descriptions given by police officers on the witness stand, where they never uttered a mean word and were invariably professional and courteous in every interaction. It wasn’t their fault that the perp ended up with a gun-shaped bruise across his left cheek. He must have attacked the gun with his face. It can happen, you know.

But to ignore the hitch, that the cop may have the unfettered ability to record the encounter and, for whatever reasons (“Gee, I forgot,” testified Officer Smith), failed to do so, is an untenable problem. The efficacy of video depends on its actually being used, in every instance and including the entire encounter. Anything less reduces it to a game, where the police make the rules, and the rules will not be good for the other side.

The only way an incentive system works is to make the cost of noncompliance greater than the cost of compliance. Apparently, a written reprimand and a few days suspension doesn’t cut it. And when it happens repeatedly, it is clearly failing to serve as a deterrent. That’s not good enough.

It’s not Allen Bass’ fault that the encounter with troopers wasn’t recorded. People aren’t ready, as they ride their bike down the road, to record a chance encounter with police. Maybe they should be, but most of us go through our daily routines without need to be capable of videotaping a shocking encounter at any moment.

That the troopers failed to do so is inexcusable, and reflects a failure of both the concept and the execution. If there is a rule that every encounter must be captured on video, then there must be muscle behind the rule that makes the failure to do so count. And when a cop refuses to follow rules repeatedly, he’s telling you that you made a bad decision as to who is sufficiently trustworthy to wear a shield and carry a gun.

Video is a great thing. But only if it’s used. And when the person you entrust to use it happens also to be the sort of person inclined to beat people for fun, then having a video rule probably isn’t sufficient to address your problems.

H/T FMK

Digital Natives: As Bad At Tech As They Are At Law

An interesting argument broke out after Carolyn Elefant posted an open letter to New Lawyers at My Shingle :

At 48 years old, I am old enough to be your mother. And you should be ashamed of yourself. Here you are, coming to me for a legal job when you don’t know the first thing about RSS feeds, blogging (reading them, let alone writing them), Twitter, Pinterest or YouTube. And what’s more, you have no comprehension of the importance of these tools to my practice and seemingly no interest in learning how to use them.

Just out of law school, your skills are of minimal use to me. Nothing you research or write will be worthy of filing without significant oversight and feedback. And that’s okay.
But what I can’t abide is having to teach you how to tweet about current events. How to set up an RSS feed. How to track and stay on top of news from two or three industry blogs. Supposedly, you grew up on this stuff. So why do you need to take instructions from someone old enough to be your mother on how to use tools that should come as second nature?

Now Carolyn, who doesn’t look a day over 35, Sought to cajole new lawyers into an epiphany, that what they lack in value as lawyers they ought bring in value as digital natives. She goes on to talk about various technological marketing pieces, which matter to her, but the core aspect of her rant is that young people ought to possess a skillset that old folks lack. So why don’t they? And if they have it, why aren’t they using it?

Over at The Puddle, n00bie lawyer Josh Camson responds in an open letter of his own to “Senior Lawyer,” I am not a tech expert.

As you point out, I have grown up around technology. I had my first cell phone in 2000. I joined Facebook when it was only open to other college students. I joined Twitter briefly when it first came out, and even had a Blogger account at the end of my college career. During this time I was also trying to pass exams and figure out my life. Then I spent three years learning the law. I’ve spent the last two ~~figuring out~~ starting to figure out how to be a lawyer.

In contrast, you’ve had the last twenty years to understand how law and technology fit together. You were already in law school when the Apple Macintosh was released. That means you’ve had the last thirty years to learn about new technologies as they develop. More importantly, you’ve been able to slowly incorporate those technologies into your practice. If you haven’t found a video solution that you like, or a system to stay up-to-date on industry developments, why should that be my problem? Why am I expected to have your solution?

Its unclear whether Josh’s argument is that he’s not really as tech savvy as old lawyers think, or that he’s here now as a lawyer and doesn’t want to be relegated to the role of “the computer guy,” If the former, it would be far more comprehensible. Just because a lot of kids spend time chatting up their friends on Facebook doesn’t make them knowledgeable or competent to handle tech. Old folks, who are utterly clueless, may think they are, but that’s just because they’re utterly clueless.

One of the memes that are sold to “senior lawyers” in law firms is that they can slough off any tech issues onto the kids. The assumption is they all know that “stuff,” and they can handle the firm’s twitter needs without blinking. Bad news, guys. It’s baloney. Any idiot can type words onto a screen, but that’s not what tech is about. You didn’t realize that? Bummer.

The kids realize that your expectations of their tech abilities are, ahem, overestimated. And to add insult to injury, when things don’t work out the way you expect, like your new baby lawyer in charge of twitter isn’t bringing in a million dollars of new business a week, who are you going to blame? They must be doing it wrong, since everybody knows that tech is the future, tech is the gravy train. All you need is some kid to twit for you and fabulous wealth is coming your way. Unless the kid screws up, of course.

But as much as new lawyers may not want to be pigeonholed as digital natives, you can’t ignore the flip side of Carolyn’s point. Your law chops aren’t what you think they are. The senior lawyer is not only expected to pay you, but aside from making a decent cup of coffee (thank you, Keurig), you not only can’t produce usable work yet, but suck time away to correct and teach you how to do things right. Until you can, you are a drain on the firm, on the senior lawyer. But thanks for the coffee.

This isn’t a smack against new lawyers, per se. We were all new once, and before there was an internet to manage, there were brief cases to carry, pocket parts to insert, typewriter ribbons to change. We were new lawyers too, but we understood that an integral part of our job, a reason the senior lawyers was willing to give us money every week whether we performed good legal work or not, was because we did whatever we could to add value to their practice.

What we did not do was tell the nice person who paid us, “oh no, old man. I’m no coffee fetcher, no briefcase carrier, no pocketpart inserter. I’m a lawyer, and I damn well expect you to treat me with the respect I think I deserve.” There were people who did this, and there was a name for those people: unemployed.

It’s quite possible that the reason you bring nothing to the table when it comes to technology is that you have nothing to bring. If that’s the case, man up and admit it. And if your senior lawyers is more tech savvy than you are, spend your quiet time at home learning how not to be the tech runt of the office, because it’s frankly inexcusable today and will be an unacceptable impediment to your future as a lawyer.

And senior lawyers, no matter how youthful your appearance or what you thought of the Mac when it first came out, need to understand that tapping nonsense words into Facebook may be fun and kewl, but does not an IT expert make. Technological savvy is not a prerequisite for being young, and some don’t have the chops for either law or technology. Sorry to burst your senior lawyer bubble.

When the Ped is a Brother

Of all the crimes that raise fear, dread and disgust, none is worse than pedophilia, the sexual abuse of a child by an adult. And this explains why police have taken such an incredibly aggressive stance in trying to root out this disgusting crime, particularly on the internet, which has proven to be a boon to pedophiles seeking to find unsuspecting teens in chatrooms, ripe for their wiles.

And so an undercover Worcester, Massachusetts officer hanging out, pretending to be a 14-year-old girl, just waiting for something juicy, happens upon this chat :

Latenightcop171 — So you want to learn things

Undercover — What can you teach me

Latenightcop171 — Lot of things

Latenightcop171 — We’d have sex

Undercover — Of course silly, but anything special or weird.

Latenightcop171 (does that mean there are 170 latenightcops before him?) turns out to be Worcester Police Officer Neil Shea. Oh crap. Crap, crap, crap. One of us, the undercover gasps.

How can you explain the abrupt termination of the online conversation in which Mr. Shea appeared to have been deeply engrossed in a highly improper chat-room encounter with an undercover officer, whom he believed to be a 14-year-old girl?

Easy, according to Police Chief Gary Gemme. Shea didn’t commit any crime, according to the Chief. It’s not like anything actually happened, right? Maybe he was just conducting his own undercover investigation, ferreting out 14-year-old girls who were trying to get cops into trouble?

Well, no. It’s not like the Worcester police department was going to welcome Shea back with open arms. There is a limit to how much sickness even a police department is willing to tolerate. And so Chief Gemme determined that Shea

committed several violations, including incompetence, neglect of duty and conduct unbecoming an officer.

Where exactly the line is for conduct unbecoming an officer may not be clear, but apparently, sex with 14-year-olds is beyond it. And so they strapped Shea to a detention chair and tased him? Well, not quite.

Mr. Shea resigned before the investigation, in which all allegations were sustained, was completed. He is free to receive all retirement benefits.

After all, there is nothing a police officer can do, not even roaming the interwebz to find teenage girls in his community with whom to chat about sexual liaisons, that warrants stripping a cop of his pension. For anyone who doesn’t appreciate the importance of the pension, this should make it abundantly clear, as not even his pedophile conduct was sufficient to push him over the line of denying him a pension.

While the mere inquiry, without further action toward making contact happen, may not have pushed this conduct from “unbecoming” to criminal, the termination of the sting before Shea took the next step of setting up a meeting with his new 14-year-old friend precluded his prosecution and, upon conviction, the end of his ability to entice little girls to have sex with him.

Anybody want to bet that all the parents of teenage girls in Worcester are cool with the fact that they are not only paying Shea’s pension, but that he’s still got unfettered internet access to chat up their babies?

Next time some tough on crime pundit blows hot about the horrors of pedophilia, ask whether their daughter has ever chatted up Latenightcop171. Ask whether these sick, disgusting pedophiles can’t be tolerated, except when they wear blue during the day. Ask about Neil Shea. He’s still out there, collecting his pension.

H/T Fritzmuffknuckle

Response to @RadleyBalko: Why Loser Pays in Criminal Law is a Loser

Following my dismissal of the same old ideas for fixing the criminal justice system, Radley Balko twitted “Why is it a bad idea for the state to pay the legal costs of people who are acquitted?” He went on to twit, “Even [if] there’s no larger effect, seems like a just policy.”

Unfortunately, this happened on twitter, so that readers weren’t aware of his questions, and there was no ability to explain with any degree of depth. As fun and easy as twitter may be, it’s not a good medium for thoughtful discussion. For this reason, I refuse to start something on twitter that’s either doomed to fail or merely incapable of doing any more than scratching the surface.

But if Radley questions why this proffered fix shouldn’t be given a try, I assume others do as well, and it’s worthy of a real response. In Glenn Reynolds’ 6-page opus, he explains this fix:

Another remedy might be a “loser pays” rule for criminal defense costs. After all, when a person is charged with a crime, the defense – for which non-indigent defendants bear the cost – is an integral part of the criminal justice process. For guilty defendants, one might view this cost as part of the punishment. But for those found not guilty, it looks more like a taking: Spend this money in the public interest, to support a public endeavor, or go to jail. To further discipline the process, we might pro-rate things: Charge a defendant with 20 offenses, but convict on only one, and the prosecution must bear 95% of the defendant’s legal fees. This would certainly discourage overcharging.

What a great idea, for guys who do what I do at least. The reluctance criminal defendants now have in putting their own money up for their defense, applying whatever cost-benefit analysis naturally happens in their heads, would certainly get a boost from the prospect of getting the money back on the other side.

After all, there are two things that are almost invariably present at the beginning of a criminal defense: The defendant believes he’s innocent, regardless of how guilty he may be, or the defendant believes the prosecution can’t really prove his guilty. The ubiquitous question, “do they have it on videotape? Huh? Huh?” said to convince us that there is no way the defendant can lose because there is no way the government can prove their guilt. Except the prisons are filled with people whose guilt couldn’t possibly be prove to the defendants way of thinking. How could that possibly be?

The problem is that defendant often begin their defense in a delusional state of absurd denial, grasping onto odd straws that they, their spouses, their great aunt in Selma, the guy on the corner, assert with absolute certainty will result in their freedom. And this is before they find religion.

Introducing a financial incentive to secure a conviction to the already overwhelming incentives that drive cops to coerce confessions and nudge identifications, and prosecutors to bury the Brady and provide excessive coaching to their victims, is just fuel to the fire. If the defendant would recover his legal fees (and how much was recoverable according to a judge’s vision of reasonable fees is another issue, but one that will never need to be addressed), the money would have to come from somewhere, some budget. Whose? Which bureaucracy would be willing to take the hit? Which piece of the prosecution side would be strong enough, honest enough, reliable enough, to ignore the potentially ruinous financial consequences and maintain fealty to the rules and Constitution?

And why, if the group’s devotion to justice is so strong, can’t they be trusted now, without the additional burden of a financial incentive?

Then we have the judiciary, which costs money to run as well. The judges don’t hold bake sales, but depend on the legislature to fund their operations. If the decisions of the judges end up busting budgets, even a little bit, the power of the purse will come to bear. It may be subtle. It may be blatant. But it most assuredly will be, as politicians are disinclined to suffer the anger of their constituents when they have to raise taxes to cover gaps that judges could close. While we may not have much judicial independence now, there will certainly be less when there is money involved.

And finally, we come to the beneficiaries of the concept, the defendants. Already, defendants are faced with unbearable choices, to plead or fight. The equation is now a difficult balancing act of risk of conviction and severity of sentence. The discussion is brutal, as few defendants have any appreciation of the weight or nature of evidence, or why all their really good reasons why they shouldn’t be convicted won’t come out at trial. They want to be heard, but they don’t want to testify. They want the truth to be known, but they can’t risk cross-examination. They didn’t do this crime, but there are the three same priors lingering in the air.

Add a financial incentive into this mix, where they may not only win acquittal but get their money back, and the influence will skew their unduly optimistic view off the charts. Should defendants choose to go to trial because they have a viable defense and a good chance of winning, or should they go to trial because they can get their money back? How many defendants will suffer the trial tax because money influenced one of the most difficult decisions of their life?

And these are the reasons why this idea, seemingly “just” on its surface, would prove problematic, if not disastrous, in real life. And this is why the response wasn’t suitable for a twit.

As long as we’re at it, Radley also questioned by twit why I wasn’t more open to embracing the ideas proffered by Glenn Reynolds and Conor Friedersdorf, “And it’s probably more productive to engage, persuade new allies than to shun and mock them.” Since I hate to be a shunner or mocker, and I try to be relatively informative as reflected in this response to Radley’s query, I look forward to Reynolds and Friedersdorf, our new allies, engaging. Engage away, guys. Your turn. Anyone?

Fixing the System: The Usual Suspects

There’s nothing like a case that captures the interest of the internet to be a never-ending source of fodder for ideas that have been said before and opportunistically said again. Sadly, Aaron Swartz’s suicide is being used as such an opportunity.

Randy Barnett at Volokh Conspiracy, offers a “terrific” short “scholarly” paper by Instapundit Glenn Reynolds, oddly entitled Ham Sandwich Nation: Due Process When Everything is a Crime (without giving credit to former New York Chief Judge Sol Wachtler for the “ham sandwich” reference), together with a concurrence in The Atlantic by Conor Friedersdorf called 8 Ways to Stop Overzealous Prosecutors From Destroying Lives, who also mentions “legal scholar” Orin Kerr’s VC post that Swartz’s prosecution was “business as usual in federal criminal cases around the country — mostly with defendants who no one has ever heard of and who get locked up for years without anyone much caring.” This was not exactly a new concept, but I digress.

Gideon at A Public Defender has already made the obvious point, that the “legal scholars” have trotted out the usual assortment of bad fixes:

The Atlantic piece – and by extension Reynolds’ brief – are a listing of the usual bad ideas – make the state pay the legal bills of acquittees, ban plea bargains altogether (NO! BAD DOG!) – thrown in with some good ones.

The problem with the superficial schemes to fix the system, aside from their being absurdly unrealistic, is that they come bundled with massive unintended consequences that apparently fly over the heads of their promoters, even if they are obvious to anyone actually engaged in the practice of law in the trenches.

But Gideon embraces the “good ones:”

Two of the ideas proposed by Reynolds (and one by Orin Kerr) deserve scrutiny: giving prosecutors only qualified immunity for their actions and that too only when they act in bad faith (after all, like the law and order crowd likes to say: if you’ve done nothing wrong, you’ve got nothing to fear) and the more intriguing idea: permitting juries and judges to know of plea bargains when sentencing.

I suspect that this confuses issues, as curbing immunity for prosecutors is a longstanding idea that serves many palliative purposes, not the least of which is creating an incentive to not cheat the system by withholding Brady material, for example. But this offers no comfort to a defendant from a prosecutor charging 16 offenses stemming from an single course of conduct as long as the laws exist. Even if there was only qualified immunity, overcriminalization would protect the prosecutor. The crimes are on the books, pal, and there would be no wrong in charging them.

As for the second idea, Gideon makes an unfortunate assumption that “[t]ypically judges who sentence after a trial aren’t the same judges who preside over pre-trial negotiations and there’s a a prohibition on that judge knowing the details of the offer.” Maybe in Connecticut state court practice, but not in other state or in federal court. It’s important, when vetting ideas, to remember that different jurisdictions operate differently, and in federal court (where Swartz was being prosecuted) the same judge typically presides throughout.

More importantly, the incentive (if the jury was to be told of plea offers) would compel prosecutors to be more harsh in their plea offers so that any act of mercy or compassion wouldn’t bite them in the butt at trial if their kindness was rejected. That doesn’t move the ball forward. Not at all.

Despite the efforts to ride the coattails of the Aaron Swartz case toward a facile “fix,” it seems that none of the legal scholars address the disease, preferring instead the bandaid approach. The problem with overcriminalization is overcriminalization. The problem is that we applaud our legislators for coming up with a knee-jerk legal fix for everything that ails us at any given moment. Ironically, there is even an “Aaron’s Law” proposed by Rep. Zoe Lofgren, because no young person is allowed to die without a law being named after him.

So the first step in “fixing” overcriminalization is to stop the political aggrandizement that comes with demanding/applauding a new law to solve every ill that appears in the morning paper. We live under the crushing burden of redundant and ill-conceived laws and regulations, and yet the fact that prosecutors use them suddenly shocks us?

The second step, nowhere to be found in the scholarly fixes, is to expect judges, who exist to play the role of neutral in the great war, to be, in fact, neutral in their exercise of discretionary authority. Why do we look only to prosecutors to exercise discretion, when they are adversaries in our system? Yes, I’m familiar with Justice Robert H. Jackson’s 1940 speech about the exercise of discretion by prosecutors to curb their awesome power, but the goodwill of prosecutors is hardly a basis for a viable criminal justice system.

We have judges. Has everyone forgotten, or given up? They sit on high benches, well-equipped to toss duplicitous charges, to refuse to enhance sentences merely because a prosecutor smurfs an act into 37 offenses. They have the power of discretion and mercy, and yet no one mentions their duty to be parsimonious?

There are fundamental failings in the criminal justice system, and these failings are pervasive. The solution will never be found by nipping around the edges, or tricky fixes that create the next round of nightmares, or demanding the advocates in the system play nicer, at least when we want them to. The tools of due process exist, if only they are used by the people who are charged with assuring due process. Still, they are left out of the discussion and let off the hook. And disease continues to fester, even as another bandaid is applied.

Before closing, a suggestion: Much as I realize how much fun it is for pundits in the blawgosphere to hook their posts to whatever issue is trending, to ride the coattails of popularity to score as many eyeballs as possible that would otherwise never know they existed, hasn’t the name of Aaron Swartz been dragged through the internet enough? Let him rest in peace. The discussion of these issues doesn’t demand the invocation of his name, and perhaps if the urge to hop on the train wasn’t so strong, the content offered would be far more thoughtful. And lawprofs wouldn’t be constrained to do the unthinkable, a 6 page paper on SSRN, just to get it in under the wire.