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.

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.

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.

When  first I checked out the offerings of Justin Peters, whose bona fides to run a blog about crime were somewhat lacking, it was largely tongue-in-cheek.  On the up side, the content was salacious crime stories that were the legal equivalent of an in-depth TMZ story about Lindsay Lohan. On the downside, he was writing for Slate, one of the big kahunas of the interwebz.

That meant a lot of people would read it, far more than any blog written by a lawyer who was educated, experienced or knowledgeable about the law. But as long as it was just dopey fluff, so what? It’s not like people hadn’t been fed stories that illuminated nothing forever. So what if there was a new player in town?

But people, being the way they are, confused the fact that Justin Peters wrote a blog about law with his having anything remotely resembling knowledge of law, the I-play-a-doctor-on-TV syndrome, and did the unthinkable :

Not that it’s the only place where corruption happens, but it almost seems to be part of the culture.  After all, when Assistant District Attorney Greg Williams stumbled onto a corrupt scheme to pocket big money from drunk drivers to dismiss their case, he had two choices: Blow the whistle or get his cut.

Via TheNewspaper.com :

Lafayette’s district attorney had set up a program of “immediate 894 pleas” for those accused of DUI who had completed 32 hours of community service, substance abuse programs and driver safety classes. Participants in this generous program received a special session in a judge’s chamber, outside the normal court process, where charges are dismissed as long as no other violation is committed during a probationary period. In 2008, the district attorney’s secretary, Barna Haynes, realized she could set up these hearings and began arranging them for the co-conspirator, who represented clients even though he was not actually a lawyer. The unnamed man charged up to $5000 for each acquittal, out of which he paid Haynes $500 per case for her assistance. Haynes collected more than $70,000 in cash until she was caught. Clients had paid hundreds of thousands for the special treatment allowing them to keep their driver’s licenses and retain a clean record.

Beginning in January 2010, Williams realized what was going on and decided to cut himself into the deals. He used his own secretary to set up “immediate 894 sessions” with a judge and the co-conspirator. Curry collected eight cash payments of $200 for her participation. The co-conspirator rewarded Williams with autographed New Orleans Saints items, bicycles for Williams and his family, business suits, shoes and $500 in cash.

As the U.S. Attorney’s Office continues to press its bribery case against former employees of the Lafayette Parish District Attorney’s Office, the number of confessed co-conspirators has increased to three. And that small circle will likely continue to widen as the results of a two-year federal investigation are revealed.

In all, close to $1 million may have been squeezed over four years from drunken driving defendants anxious to get out of trouble, and at least $75,000 or more in bribes is believed to have been paid to courthouse insiders willing to help them do it, according to a  Daily Advertiser review of drunken-driving cases and court records.

As I was sipping coffee and reading a story in the Times about New York’s latest iteration of its gun laws, a  twit by Brian Tannebaum alerted me to yet another confrontation between Carlos Miller and guys in uniform who are of the view that they get to make up rules and then enforce them with force. I shift gears.

For anyone unaware of who Carlos Miller is, he’s a Miami photographer who has challenged the locals by asserting his right to take photos and videos of anything in public he pleases.  He has a blog called Photography is not a crime, PINAC.  Carlos has been  twice prosecuted for disobeying people in uniform who ordered him not to take pictures.  He was been twice acquitted. 

Given the amount of discussion online about the right to video things in public, you might think that the message has been sufficiently spread that police, or in this case, security guards who only get to eat unglazed donuts, would be aware of the fact that people have the right to video anything that happens in public.  The flip side is that there is no law prohibiting videotaping, and they have no authority to tell anybody not to do so. 

You would also think that the name Carlos Miller would be fairly well known in the neighborhood, having twice beaten back efforts to shut him down, and having a pending lawsuit for the violation of his civil rights.  If you did, you would be wrong on all counts. 

Carlos’ name appears here with some regularity. We’re not old friends, and I’ve never had a cup of coffee with Carlos.  But what he does, and what he has suffered for, is what marketers love to call “disruptive technology.”  The pervasive use of video, which gave rise to my “But For Video” series of posts, caused a fundamental change in our understanding of what really happens on the street, without the prying eyes of judges, lawyers and jurors.

It wasn’t that we learned that cops were always lying or that defendants were always innocent. It was that we learned that sometimes cops lied and sometimes defendant did nothing wrong. It was that we learned that most of the time, the sanitized testimony of police officers of their conduct and words toward the public was false, even if not false enough to negate an arrest or conviction. What we learned from the video taken by the public was that we had been living a lie. 

Today, no judge can look at the testimony of a cop, or the claims of a defendant that the beating he received, the words put into his mouth, the conduct attributed to him, without realizing that there was a fairly good chance that nothing happened quite the way he’s being told.  At least no judge who is being honest with himself, and hasn’t chosen to hide beneath the bench and pretend that Sheriff Andy is still in charge.

This is happening because of the disruptive technology of video.  But it’s also happening because guys like Carlos Miller are out there, willing to take the hit time after time to preserve the right to videotape guys in uniform, even when they demand he stop and use force to make him.  Let’s face facts, while most of us are happy to stand atop the pedestal of civil rights when we’re surrounded by the applauding throngs, few of us want to be the guy on the train platform surrounded by uniforms who want to put their hands around our necks.  That’s where Carlos comes in.

Last night, Carlos Miller was again accosted, this time on the Miami-Dade Metrorail by men in the employ of 50States security, hired to work the train stations.



Carlos describes what happened:

As you will see in the above video, they tried to push me down the escalator and I shoved back in order to defend myself, which prompted at least three security guards to pounce on me, including one security guard named R. Myers who violently choked me to the point where I thought I was going to die.

Some see this is a particularly bizarre crime story. Other see this as an opportunity to make jokes.  From Doug Berman at Sentencing Law and Policy :

It is often reported that child rapists are often treated as pariahs even among the most hardened criminal is prison.   Consequently, this stunning local sentencing story prompted the (serious?) question in the title of this post. The article — which has an ending that led me to double-check it wasn’t from The Onion — is headlined “N.Y. super who had sex with dog gets prison.”  Here are the details:

An apartment building superintendent who was caught on tape entering a unit and having sex with the tenant’s puppy was sentenced to prison Tuesday.

Alan Kachalsky thought something in his apartment was amiss for months — blinds drawn that had not been, a window left open that he had left shut.  But nothing ever went missing, and, fearing he may come off as paranoid, Kachalsky never went to the police. Instead, he set up three cameras and waited.  Kachalsky shared his apartment at the Rye Colony Cooperative Apartments with a male Labrador puppy, Gunner, who, unbeknownst to Kachalsky, was the real target of the burglar.

The burglar, it turned out, wasn’t there to steal anything, Kachalsky said Tuesday, but for something far more unimaginable.  Kachalsky, an attorney, said it never occurred to him that someone was returning to have sex with his dog.  Kachalsky turned over the video to police, who questioned and arrested Nicaj on Feb. 9, 2012, for sex acts against the 1-year-old dog committed the day before.

From there, it goes to a place I would never have imagined.

Given the apparent happy ending for the victims of this crime, I am not sure whether to encourage off-color jokes about this case or to engage in serious analysis of the prosecution of this peculiar puppy rapist.  Thus, I pose this dilemma to readers:

• 
  

  should we ponder, rigorously or comically, whether and how the victim dog’s tender age impacted the seemingly severe sentencing outcome?



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  should we worry, genuinely or jokingly, whether there are other puppy victims of this defendant who lacked the courage (and ability) to speak up about their abuse?



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  should we question, meaningfully or mirthfully, what the human victim here has now done with the contraband puppy porn than he inadvertently produced?



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  should we wonder, seriously or facetiously, whether upon release from prison the offender will be barred from going within 1000 feet of a pet store without prior approval of his probation officer?

Obviously, this is bizarre conduct, sufficiently off-the-charts nuts that it seem almost Onion-like. But it isn’t a joke, and bestiality (like necrophilia) happens.  Is this funny? Are we so jaded that we can indulge in dark humor to the extent reflected by this post?

There is nothing about what was done to a puppy that strikes me as humorous, even indirectly. This is just sick stuff.  Am I missing something here?

It’s straight out of some Kafkaesque nightmare, with the benign name of “the chair.”  From the Boulder Weekly :

It’s a restraint seat used by many jails to subdue inmates who pose a threat to themselves or others. It has wrist straps, ankle straps, a lap belt and a harness.

The thing is, inmates don’t always go peacefully into “the chair.”

And when they don’t, deputies are authorized to use what at first glance might be seen as violent methods to force compliance.

In official police reports, those methods carry names like “infra-orbital pressure point technique” or “straight punch to the chest.”

But inmates describe it more along the lines of getting beat up by out-of-control cops.

By his own admission, Joshua Johnson became angry after he was taken to jail on Sept. 19, 2009, after being pulled over for a broken headlight. He felt he had been arrested wrongly, for violating an alcohol-related condition of a restraining order that he said had been lifted. In addition, he was supposed to pick up his daughter later that morning, but being incarcerated put a crimp in those plans.

Johnson says they came into his cell five deep, the red laser light of a Taser target shining on him, and he put his hands up. He says they cuffed him and backed him out of his cell, his arm twisted back hard. He was placed forcefully into the chair. According to Johnson, his face was slammed against his knee after he dared to look backwards, and he asked why they were hurting him. Johnson admits he called the deputy a “fucking cocksucker,” and says the officer straddled him and said, “I’m going to show you what a cocksucker I am.”

That deputy then lifted the inmate’s upper lip, Johnson says, pulled it up to his nose, put his palm underneath his lip and repeatedly jammed his hand up forcefully against the base of his nose for more than 60 seconds. Johnson says he heard squealing and later realized he was making the noise himself. He says he thought about biting the deputy’s pinky finger that was in his mouth, but thought the better of it. Johnson claims he managed to gasp that he couldn’t breathe, and the officer replied, “Yes, you can, because I just heard that.”

As he was about to pass out, Johnson says, another deputy punched him in the stomach.

One deputy “applied an infra-orbital control hold,” the aforementioned blows to the nose, which by one account “had little impact and he continued to resist.”

There were never cameras there because video was used primarily to assist deputies with real-time surveillance, not recording, he explains, and there is an observation area looking directly out onto the day room, so there was no need.

Sheriff Joe Pelle tells BW that cameras have historically been used “as an operational tool to see places where deputies couldn’t see, so they weren’t everywhere. But then, a few years ago, attorneys started making requests for video and we noticed it started multiplying and it became apparent that this was more than just a management tool, it was being used for prosecutions and lawsuits.”

He agrees that the disciplinary day area is a good spot to add cameras.

While we’re sitting on hard benches waiting for cases to be called, the legal academy is hard at work reinventing our profession without us.   Massive drops in applications has made their attention imperative, even though there are still enough to fill the seats needed to pay the cost of scholarship. So what if law schools are cold-calling qualified applicants to entice them with Ginsu knives and financing packages? If you spell your name right on the LSAT, there’s a law school for you.

This is pretty embarrassing for law schools, forced to reduce the quality of new admits because the smart kids no longer want to lose three years and a bundle of debt to an education that will enable them to get a part-time barrista position. The more upstanding schools are cutting their class sizes, while the less upstanding ones are happily taking their rejects so they can afford the dean’s salary.

And they’re coming up with schemes to cure their ills.  You probably weren’t paying attention, because you were busy thinking about how to make your phone ring again, but what they come up with is going to affect you whether you care or not.

All these hungry little buggers they’re sending into the profession need to find a way to pay off their loans and keep their mommies from crying, and if you read their blogs and websites, they’re smarter, more aggressive, more caring and, yes, more experienced than you. Baloney, you say? Yeah. So what? They’re doing what they’ve got to do to survive, and niceties like integrity are for old guys. They’re fighting for their lives and, frankly, have completely rationalized ethics out of the picture. And since they are all brilliant (ask them, they’ll tell you), they see no net harm from a bit of puffery.

Just this week, here’s what the scholars came up with:

NYU wants to make a systemic change to law schools that would allow students to do law school in two years and take the bar.  The point is that it would cut the cost by a third, create a two-tier profession since some will stay for the full three years, and force law schools to make the third year more relevant.

While this could save some law students money, although at the cost of being second-class lawyers, it does nothing to make them more competent or to reduce the numbers of lawyers being spewed into a market that can’t absorb them and has no use for them.  Cool plan, bro.

Yale Law School announced that for its first-ever class of law Ph.D.’s, it has received 82 applications for five spots, thus disproving naysayers that nobody in their right mind would waste their time on a law Ph.D.  While it proves nothing of the sort, the thrust toward a scholarly doctorate is happening while one of the core failings of law school is its inability to produce lawyers with the capacity to do anything remotely associates with what lawyers do.  What are the chances that creating a new cadre of scholars, even more detached from the practice of law, is going to produce better qualified lawyers?

It’s not surprising that there are 82 people interested in the program. Lots of people, myself included, are interested in scholarly pursuits, and feel themselves better suited to churning out law review articles than showing kids the tricks of the trade or how to schmooze the clerk to get your papers filed.  But if we assume that the only place these doctors can get jobs is law schools, then this seems to be heading in the opposite direction of producing functional lawyers. While I’ve got nothing against law docs (that’s doctors, not documents), they’re the last thing we need in law schools.

Lawprof Steve Diamond, who is recovering from involuntary proctology exam by the scambloggers for his market oriented “let them eat cake” approach to solving the problem, has come up with a new initiative, which he modestly calls “Lawyers for America.”

It would offer young unemployed or underemployed lawyers the chance to practice law serving an underserved community under the supervision of existing lawyers. One example: there are many thousands of small businesses in our poor and immigrant communities, including cleaning, housekeeping, gardening, construction and other services.  Many of these could be organized as LLCs thus shielding their owners from personal liability. This requires legal help.  These entities could use other legal advice as well. A legal service organization would be established in major urban areas that could provide these services.

The supervising lawyers could earn CLE or pro bono credit for their time. The law students would be provided a stipend for living expenses and more importantly would earn credits for debt relief. Every year of full time service would earn them 20% cancellation [sic] of their outstanding debt.

“Practice-Ready” is Not Enough. Despite the rebukes often received from the practicing bar, for most law schools an emphasis on “practice-ready” skills will be insufficient to cope with the structural changes occurring within the legal industry. Granted, it is true that better skills training will enable law school graduates to better compete for the finite number of traditional legal service jobs that will be available in the years to come. But, to be blunt, in a world that is getting pulled in Susskind’s continuum from bespoke to commoditized, practice-ready skills training will not change the total number of traditional legal jobs available to law school graduates. Moreover, one of greatest dangers of the “practice ready” solution is that we law professors will too readily conclude that we don’t need to leave the building—that is, engage with profession and the industry— to find a solution. Our schools would just need to hire more clinicians. Yet, this is a very expensive solution that fails to address the longer-term systemic employment problems.

Via Turley, the story is troubling on more levels than I could imagine.

[Christina] Eilman was arrested and held overnight after she was found behaving strangely at Midway Airport. She was having a bipolar meltdown. She continued to display obvious signs of mental illness when the police simply released the former UCLA student into the high-crime neighborhood around the Wentworth District police station. She was wearing short shorts and a cut-off top and was near the exceptionally dangerous Robert Taylor homes project.

[S]he was kidnapped and raped before she fell from the seventh floor of a public housing apartment building.

The fall from the building left her with a devastating brain injury and several broken bones, including a shattered pelvis. She now requires around-the-clock care.

The Chicago Police Department settled the case for $22.5 million after six years of fighting it. While in police custody, her parents told the police that she was bi-polar, making the situation sufficiently outrageous that even 7th Circuit Judge Frank Easterbrook noted :

Eilman was in an acute manic phase. She did not tell the police about her mental-health background, however, and was uncooperative after her arrest—sometimes refusing to answer questions, sometimes screaming, sometimes providing false or unresponsive answers. Phone calls from her mother and her stepfather told officers in Chicago that Eilman had bipolar disorder, but the officers did not believe the stepfather (they thought that the call was fake), and the officer who took the calls from Kathleen Paine, Eilman’s mother, failed to tell anyone else or record the information in Eilman’s file. While Eilman was in custody, some officers thought that she was just being difficult, some thought that she was on drugs (expert reports relate that methamphetamine could cause similar symptoms), some thought that she was no worse than the run of loud and uncooperative people who don’t want to be in custody, and those who thought that she needed mental-health care were ignored or overruled.

Inherent in the fault is pretty much every trope and prejudice that is typically used by the police against defendants. High crime area. The implicit assumption that a white girl in somewhat revealing clothing is almost certainly a target for rape by black men in the projects.  And that’s exactly what happened, this time.

The police should have known that the woman in custody was suffering from mental illness, but that would have required them to both think and care. The only time those two things happen simultaneously is when it personally affects a cop. If a police officer had scraped his thumb during her capture, you can bet the farm that he would have been taken straight to the hospital.

That they could chalk up this crazy white girl to just another druggie, another pain in the ass, was sufficient to absolve themselves of any concern for the person in custody.  She hadn’t done enough wrong to get anyone a medal for arresting her, and was too much trouble to keep around.  Just get rid of her as quickly as possible, and so they did.  She signed off an a personal recognizance bond and walked out of the stationhouse. 

This raises some questions that aren’t as easily answered.  While Eilman should not have been arrested or released, as she was suffering from a manic phase of mental illness that a reasonable person would have believed required medical treatment, was it wrong to let her walk out of the stationhouse and into the “high crime area” of the projects?

The gut reaction is that this was just inexplicably stupid, lazy and dangerous. The cops, of all people should have known the risk they were subjecting her to, particularly in light of her mental state.  Would it be different if the ghetto was comprised of fine single family houses occupied by white families?  See the problem?

Are we to assume, as a matter of law, that it’s negligent, if not reckless, to let a white girl in a shirt that exposed her midriff stroll into a poor black neighborhood?  Why is that? Are poor blacks so likely to rape white girls? Mentally ill girls? Girls wearing shirts that expose their midriff?  How much prejudice belies the assumptions that make the conduct of the Chicago police monumentally stupid?

There is, of course, a far clearer answer to the wrong done to Christina Eilman by the cops. Having taken a person into custody whose mental state, for whatever reason, was insufficiently stable to be able to negotiate her way to safety, the police assumed a specific duty to make sure she was not harmed upon her release.  They could have taken her to the hospital. They could have returned her to the airport, where they found her, though that would have accomplished nothing. They could have told her parents, with whom they spoke (and note how well the police document stuff that doesn’t suit their need to convict), to come get her or make arrangements for someone to get her as she could not be safely released on her own. 

There were options. The police used none of them. Instead, they did what was easiest for them, which was nothing to assure the safety of an unstable person in their custody.

But, the harm that gave rise to a $22.5 million settlement was the rape and brain damage that followed her fall from a seventh story window after the rape.  Was that foreseeable?  Should it have been foreseeable?  In the real world, the answer is probably yes, but then we concede things about ourselves and our society that we spend an awful lot of time denying.

This all could have been avoided if the Chicago cops had made the slightest effort to care for Christina Eilman’s safety and welfare. 

Lance Armstrong took performance enhancing drugs. He said so, so we know, even though everyone was certain before he came out with Oprah. The  New York Times reports:

With Winfrey, he lost his icy stare and buried his cutting words. Looking nervous and swallowing hard several times, he admitted to using through most his cycling career a cocktail of drugs, including testosterone, cortisone, human growth hormone and the blood booster EPO.

He called his doping regimen simple and conservative, rejecting volumes of evidence by the United States Anti-Doping Agency that the drug program on his Tour de France-winning teams was “the most sophisticated, organized and professionalized” doping scheme in the history of cycling.

He said that he was not the kingpin of the doping program on his teams, as the antidoping agency claimed, and that he was just doping the way the rest of his teammates were at the time.

He said he had doped, beginning in the mid-1990s, through 2005, the year he won his record seventh Tour. He said that he took EPO, but “not a lot,” and that he had rationalized his use of testosterone because one of his testicles had been removed during his battle against cancer. “I thought, Surely I’m running low,” he said of the banned testosterone he took to gain an edge in his performance.