In Dauphin County, Pennsylvania, Judge Lawrence F. Clark Jr. made a ruling that shakes the foundation of the magic black box that has convicted more drivers of drunkenness than any other.  Via TheNewspaper.com , Judge Clark found in  Pennsylvania v. Schildt :

The unvarnished facts of this case ultimately establish that the array of breath testing devices presently utilized in this commonwealth, and in particular the Intoxilyzer 5000EN device manufactured by CMI, Inc., as those devices are presently field calibrated and utilized in this commonwealth, are not capable of providing a legally acceptable Blood Alcohol Content (BAC) reading, which is derived from a defendant’s breath, outside of the limited linear dynamic range of 0.05 percent to 0.15 percent,

As a result of the evidence produced at the hearing, it is now extremely questionable as to whether or not any DUI prosecution which utilizes a reading from an Intoxilyzer 5000EN breath testing device could presently withstand scrutiny based upon the startling testimony of the commonwealth’s own witness, Mr. Faulkner, at the hearing,

Breaking away from the magic black box myth is a huge step forward in the elevation of forensic science to empirical proof, rather than religious adherence. But as victories go, it may not be one that makes things a lot better for people.

Blowing into a magic black box may not be all its cracked up to be, but on the intrusiveness scale, it beats the alternatives , argued before the Supreme Court yesterday in Missouri v. McNeely, which  SCOTUSBlog’s Lyle Dennison wrote provided about as clear an indication that the court is heading toward a compromise on the use of drunk driving blood draws as one can get.

Most of the hour-long argument was spent in imagining the details of such a compromise outcome: start with the premise that getting a warrant is the preferred approach, but then define a set of “exigent circumstances” that will excuse the inability to get one within a fairly brief time — perhaps no more than a half-hour.  There would be no authorization, it appeared, for warrantless blood samples, across the board, on the premise that alcohol is always going to be disappearing fairly rapidly from the human bloodstream.

Let’s play out the scenario argued before the Court. Assuming there is no blanket authority to draw blood rather than get a warrant to do so, the police officer pulls a driver over and hits number 7 on his speed dial.

Cop: Judge, I need a warrant to draw blood.
Judge: What do you have, Joe?
Cop: Swerving all over the place, Stinks of gin. Bloodshot eyes and slurred speech. The usual.
Judge: Done. Hope you got a clean needle, Joe. Heheheh. (chuckle optional)

The end result is that the driver gets a needle in his arm. Or the other side of the compromise.

Cop: So I called Judge Smith a half hour ago, and haven’t heard back. It’s needle time.

While the judge could, theoretically, refuse to authorize the warrant for the blood draw, and end the roadside nightmare, bear in mind that the only information she receives is what the cop provides. There is no one to inform the judge that the driver is a diabetic who hasn’t touched a drop of booze, or had one shot on the way out of the party and isn’t impaired at all. Or even that the cop is full of it, and is miffed that the driver was disrespectful and the cop will use the needle to teach the driver manners.

This is what the argument was really all about. And if the blood draw fails to show that the driver was drunk, then he’s sent on his way and no one ever hears about it again.  No, there will be no civil rights suit, because a judge authorized the warrant. No, there will be no suit because the cop lied, since there is no way to prove that happened. It’s either a needle and prosecution or a needle and a pass.

So does no one escapes the needle?  Not exactly, as there is always the tube. If the Supremes thought the needle was intrusive, they probably will think the same of the tube.  And demand a warrant as well, unless it isn’t forthcoming fast enough, in which case they won’t.

At Volokh Conspiracy , Orin Kerr also writes about oral argument in McNeely, which I assume means he was present even though it isn’t clear. He raises another possibility, even more disturbing.

Several Justices caught on to one of the reasons why it might not matter much: The warrant protection doesn’t mean very much here because the facts of DUI cases and blood draws are very standardized. Requiring a warrant may amount to a formality. Along the same lines, there’s an interesting question as to whether the inevitable discovery exception would apply were a court to require a warrant that an agent does not obtain. If the court requires a warrant and an agent conducts a warrantless search anyway, can the agent argue that the blood recovered should be admitted anyway under the inevitable discovery exception to the exclusionary rule because he would have successfully obtained a warrant if he had not conducted the warrantless search?

Since every cop gets a blood draw warrant for the asking anyway, what’s the point of the charade of pretending to honor the Fourth Amendment. It just means a judge doesn’t get a good night’s sleep, since the cop is going to get his evidence one way or another.

Boiling all of this down to its basics, there are a few elements that no longer appear in dispute. The foremost concern of the courts is that police and prosecutors are not denied evidence of drunk driving, so that no alleged drunk driver escapes conviction.  The Court may not be thrilled at the prospect of warrantless blood draws, but as with convicting a few innocent folks to make sure we get all the guilty ones, it’s a necessary evil that there will be some collateral damage in order to win the war against drunk driving.

And it’s just a baby step from a needle in the arm to a tube in the genitals. Given the options, it makes the magic black box look much better than it used to, even if it is scientific nonsense.

There will be no one inducted into the Baseball Hall of Fame this year.  It’s not because there are no baseball players whose accomplishments on the field of dreams aren’t adequate for such recognition.  There most certainly are.  But protesting with their votes, the baseball writers of America have chosen not to vote for these players because they’ve been tainted by steroids.

In the most resounding referendum yet on the legacy of steroids in baseball, voters for the Hall of Fame emphatically rejected the candidacies of Barry Bonds and Roger Clemens in balloting results announced on Wednesday.

In their first year on the ballot, Bonds and Clemens, perhaps the most decorated hitter and pitcher in the game’s history, fell far short of receiving the necessary 75 percent of votes from baseball writers. Bonds, the career home runs leader, received only 36.2 percent, while Clemens, who won a record seven Cy Young Awards, did slightly better, with 37.6.

And Sammy Sosa too, who was reported to have failed a drug test in 2003.

For a sport whose links to performance-enhancing drugs have forced it to endure Congressional hearings, public apologies from players, tell-all books and federal trials, Wednesday offered a profound moment. Writers decreed that two of baseball’s greatest players would not be officially recognized with the game’s highest honor, at least for now and perhaps forever.

One can hardly fault the baseball writers for taking the principled stand of choosing not to endorse careers founded upon performance enhancing drugs.  As Sports Illustrated writer Tom Verducci said, ““My vote is an endorsement of a career, not part of it, and how it was achieved. Voting for a known steroid user is endorsing steroid use.”  Fair enough.

But what makes someone a “known steroid user”?  Did Verducci see Bonds shoot up with his own eyes?  Plenty of people say steroid use was rampant. Individual players deny it.

“To penalize players exonerated in legal proceedings — and others never even implicated — is simply unfair,” said the statement from Michael Weiner, the union’s executive director. “The Hall of Fame is supposed to be for the best players to have ever played the game. Several such players were denied access to the Hall today.”

The problem is that they were convicted in the court of public opinion, from which there is no appeal.  That they were exonerated in legal proceedings doesn’t mean it didn’t happen. That they were convicted in the minds of people who only watched from a distance doesn’t mean it did. 

Granted, this isn’t about whether a person goes to prison, but whether an honor is bestowed upon him. It doesn’t implicate the Constitution, and no one is owed induction into the Hall of Fame. The baseball writers can vote for, or withhold their vote, a player with a good reason or no reason at all. They are allowed to be as arbitrary in voting as they are in their writing. 

The message is about the taint of accusation that can never be cleansed.  Bonds and Clemens are not guilty in the eyes of the law, but they will never be innocent in the eyes of the public.  There will be no DNA exoneration one day, with a parade to celebrate the clearing of their good names. Those who are certain of their use of steroids believe it to be true, much as people believe in a Supreme Being. But they weren’t there. They don’t know. Still, they believe.

Maybe the baseball writers, having made their point by refusing to vote for two players whose accomplishments would otherwise make them a shoo-in for the Hall of Fame, will relent in their condemnation and forgive them their trespasses, real or believed.  Maybe they will decide to be merciful and put an end to their exile from the good graces of the baseball gods.  But even if they do, it will be an act of charity, despite the taint. 

This isn’t to say that legal proceedings should be embraced by the public, and the baseball writers, as the final word on truth.  Legal truth, whether it results in conviction or acquittal, is just as subject to doubt as any other belief.  The law is no more magical in discerning truth than anything else.

However, the fact that an accusation, once made, becomes a part of a person’s reality in the eyes of others, even if it’s never proven, should give us pause.  The world will not come to an end because Bonds and Clemens never get their seat in Cooperstown.  And in the grand scheme of important things, it’s not nearly as consequential as the wrongful execution of Cameron Todd Willingham, though far more people worry about baseball than about killing the innocent.

Barry Bonds and Roger Clemens, and even Slammin’ Sammy Sosa, had incredible careers as baseball players and achieved things that make them worthy of the honor of being inducted into the Hall of Fame.  And all three are tainted by allegations of drug use that may keep them from receiving the honor.  No one will ever be certain if this is right or wrong, and there is nothing they can do about it now.  Even though they’ve never been convicted, they are guilty forever because the accusations were made.

So if one is tried in the court of public opinion, what is the burden of proof?  Who distinguishes reliable evidence from hearsay?  And if the conviction is against the weight of the evidence, who reverses?

While demolishing the substance of the false rape “in-faux-graphic” published by the Enliven Project under the ignominious title “the truth about false accusation,”  Houston criminal defense lawyer Mark Bennett was kind enough to invoke Hanlon’s Razor : Never attribute to malice that which can be adequately explained by stupidity.

He may be right.  He may have been too kind.

Bennett explained:

You know what I think happened? I think someone sent [Sarah Pierson] Beaulieu an email like this:

Hello,

I wanted to drop you a quick email regarding your site at theenlivenproject.com and ask whether you would be interested in us making an infographic for you?
I’m sure you receive several similar guest post requests each week, so I wanted to quickly point out what I’m proposing and why this would be of value to you:
· We’ll provide you with an exclusive infographic created by us. Rather than simply sending you a text based article, we do all of the research and arrange for one of our designers to create an infographic solely for use on your site. This isn’t something that has been or will be published elsewhere.

· Some examples of infographics that we have recently designed and placed include…

Beaulieu bit, and is now scrambling to justify publishing this nonsense.

I don’t blame her. I blame the American educational system, which has created a nation of statistically innumerate consumers of easily digested but false information, including her and everyone who unquestioningly spread this graphic around the internet.

Blawgers get pitches for infographics all the time, the giveback being that they include a link to their source, usually a for-profit website seeking a backlink.  This infographic, however, has no such backlink. Instead, it links to the Enliven Project post and notes it was “designed by Paul Pierson.” It’s unclear who this person is, but sharing a name with the Sarah Pierson Beaulieu might suggest a connection between the two.

Regardless, the Enliven Project makes a  very big claim for itself:

The Enliven Project is a truth-telling campaign to bring sexual violence out of the closet and convert the most powerful bystanders to new allies.

If your purpose is to be a “truth-telling campaign,” then you really have to make an effort to tell the truth.  As the comments to the Enliven post make abundantly clear, this infographic is astounding wrong from essentially every perspective.  Even the basic math is wrong, where the made-up number of 2% false accusations is displayed as 2 people out of a thousand in stead of 20.  But if they got the math right, it would still be wrong because “truth-telling” people can’t just make stuff up.

So what’s the big deal, you wonder?  Isn’t the internet a cesspool of misinformation, a trap for the ignorant and unwary?  Of course it is, but that doesn’t alter the ability of a piece of utter nonsense like this infographic from finding its way into the hands of people who are unconcerned about accuracy and will instead use it to promote their cause.  This is how misinformation becomes part of the myth of the internet, and ultimately cleansed of its falsity so that it becomes a source of information for the future.

Yes, really.  Consider, for example,  the statistics provided by Roxanne Beecher, presenting as a member of the animal rights committee of the Westchester Bar Association, in support of an Animal Abuse Registry.

Ms. Beecher stated that Westchester County ranks number 9 out of 62 counties in the state for cases filed for animal abuse and this is why they are asking for animal abuser registry.  She said 71% of abused  or battered women report that their abuser has hurt or killed animals, 32% of battered women with children report that their children have hurt or killed animals, and 25-48% of battered women report delaying leaving their abuser for fear of their animal being abused.

She said there was a woman (not in Westchester) in a domestic violence shelter who received photos from her mother of her estranged husband cutting off her dogs ears with garden shears and he was threatening to hurt her other animals. This woman left the shelter to go rescue her animals and she has since disappeared.

Ms. Beecher continued by saying 40% of battered women report that they are forced to perform sexual acts with animals, 48% of rapists have committed acts of animal cruelty as adolescents, 30% of child molesters have committed acts of animal abuse, and 15% of active rapists also rape animals.

Pretty damning statistics, but for one problem: I was unable to find any basis for most of the statistics. From what could be found, these were made up of whole cloth. Yet the Westchester County Legislature bought it, and approved the registry. After all, a lawyer from the Westchester County Bar Association is certainly a credible source, right? And I fully expect these numbers to magically become irrefutable fact going forward, even if they are utter nonsense.

And the Enliven Project promotes a “truth-finding campaign.”  Truth, truth, truth. Except that it’s not. Not even close. But who would be evil enough to take issue with a cause as dear to the hearts of so many as the elimination of rape?  Or the elimination of animal abuse?

And this is how myths begin, and get repeated until eventually they become truth, even though it’s not.

Update: And the infographic is repeated at the Washington Post’s WonkBlog in a post by Dylan Matthews under the title, The saddest graph you’ll see today, who got it from Huffington Post‘s Laura Bassett and was subsequently picked up at Salon:

Update: Rape statistics are notoriously hard to collect, and Amanda Marcotte has a compelling critique of the methods used here, which Enliven describes in more detail here. So while the phenomena described here are real (and Marcotte argues that, if anything, the chart exaggerates the number of false accusations), be aware that the exact numbers are subject to dispute.

According to her bio, “Amanda Marcotte is a journalist, opinion writer, and author of two books on progressive politics.”  Apparently, statistics wasn’t one of her strengths. While she’s correct that false rape accusations are a subset of false rape allegations, that by no means translates into exagerating the numbers if the source numbers aren’t accurate in the first place. And this goes from wrong to wronger.

Update 2: Wally Olson at  Overlawyered has more on the “wronger,” notably the Marcotte “correction” piece:

P.S. This supposedly corrective piece at Slate is if anything worse than the chart it purports to correct, straining to minimize false accusation as even rarer than portrayed. (It’s worth remembering that its author, Amanda Marcotte, has a bit of a history herself when it comes to credulity on this subject.) Bennett again provides a needed corrective: “Forensic DNA typing laboratories — as numerous commentators have noted — encounter rates of exclusion of suspected attackers in close to 25 percent of cases.”

Which just goes to show, the alternative to wronger can be even more wronger.

It’s been a long time coming, but Southern District Judge Shira Scheindlin  issued an injunction against the notorious “Clean Halls” program, later renamed the Trespass Affidavit Program, as the plaintiffs demonstrated a likelihood of success of prevailing on the merits that the program is unconstitutional.

Finally. 

The program, which has been widely  misreported following this ruling as the Stop & Frisk program by overzealous but undereducated reporters, has been a constitutional catastrophe for more than 20 years, so much so that even the Bronx District Attorney had enough of it. 

The police, landlords, some tenants and cop teachers from John Jay College argue that it is an effective weapon in fighting crime and cleaning up their buildings.  No doubt it is, as would be police having the authority to break into homes at night at will. There is no shortage of effective weapons in whatever war we’re fighting that violate the Constitution.  This is just another one.

Judge Scheindlin, in a lengthy opinion, wrote:

While it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the N.Y.P.D. has systematically crossed it when making trespass stops outside TAP buildings in the Bronx,

An element of the New York Police Department’s stop-and-frisk practice was deemed unconstitutional by a federal judge on Tuesday, a ruling that may have broad implications for the city’s widespread use of police stops as a crime-fighting tactic.

Is it fair to call the Clean Halls Program “an element” of Stop & Frisk?  Perhaps, even though it pre-dated Stop & Frisk by more than a decade, is grounded in putatively authorized trespass affidavits and presents at least a marginally arguable basis to seize and question people entering private premises. 

In contrast, the Stop & Frisk program is founded solely upon the fiction that police, spotting something about a person walking down the street, minding his own business, that gives rise to some unspecified curiosity on the cop’s part, creates a basis for the officer to throw the black kid against a wall, interrogate him and search him.  In other words, it is far more intrusive, unjustifiable and unconstitutional. 

Ironically, Judge Scheindlin is also the judge on two additional suits challenging Stop & Frisk, and it is fair to say that the same core constitutional issue exist in all three actions. The decision in this case, thus, bodes well for questions of similar constitutional deprivations in the others, and to that extent, it’s not entirely wrong to connect the Clean Halls decision to the Stop & Frisk program.

But there are two problems with conflating the cases, as the media has unfortunately done. First, the war against Stop & Frisk is hardly won, despite headlines to the contrary.  To suggest otherwise is irresponsible and inaccurate.  There is still a long way to go to establish that people who walk on the streets of New York City, particularly young black and Hispanic males, have the constitutional right to be left alone and free from seizure and search at will by police.

Second, as I was unceremoniously reminded by  Sarah Steiner (and11 other CDLs hanging out in the counsel room at 100 Centre Street) after twitting about the decision yesterday, the injunction may remove a facile tool for police to seize and search in violation of the 4th Amendment, but that merely compels police to up their game to making up excuses to do so.  It does not mean they will start honoring the Constitution.

It’s a battle won, and given how few battles are won, worthy of some celebration. But the war continues, and that shouldn’t be forgotten.

As the Association of American Law Schools annual meeting concludes in New Orleans,  Orin Kerr reports back of an interesting panel called “Law Schools and Their Critics.”

The panel was moderated by Lauren Robel, the AALS President, and the panelists included Deborah Rhode of Stanford, Bill Henderson of Indiana, Gene Nichol of UNC, and Bryant Garth of Southwestern. This panel was only one of several at the AALS meeting on criticisms of law schools, and the panel was very well attended. My guess is that there were about 125-150 professors in the audience.

From time to time, commenters ask for concrete proposals to change law schools–especially to reduce tuition costs. Professors and regulators are starting to ask the same question: What should we do about the problems confronting legal education?

On one level, the answers are easy: Lower tuition, reduce JD class size, embrace full transparency, and educate students effectively for the current workplace. But achieving those goals will require both discussion and specifics.

To support that discussion, I’m launching a new website called  Law School Cafe. The site is a partner site to  Law School Transparency, and  Kyle McEntee (LST’s Executive Director) is my co-moderator. We hope to have  LawProf as a frequent contributor–and you’ll have to put up with me continuing to contribute here. There’s still a lot to criticize in legal education, even as we try to formulate some solutions.

Emily Zimmerman, an associate professor at Drexel’s Earle Mack School of Law, proposes that law professors should fill “continuing practice experience” requirements. In an SSRN paper, Zimmerman notes that “many of the people who are entrusted with preparing students for law practice are people who may not actually have practiced law, who may only have practiced law for a short amount of time . . . , or who may not have practiced law recently.” (p. 7) Zimmerman acknowledges that these professors may “do an excellent job of helping students develop some of the skills that they will need to be successful lawyers.” But is that enough? Shouldn’t law schools strive to give students the best possible education for their role as lawyers? To accomplish that, Zimmerman argues that full-time faculty should enjoy more regular connection to the world of practice.

Zimmerman suggests that professors devote 10-15 hours a year to “law practice.” To give professors more flexibility, and to allow more in-depth engagement, a “CPE” requirement might mandate 30-45 hours of practice every three years. The activities fulfilling this requirement could range from actual practice (for paying or pro bono clients) to shadowing active lawyers and participating in bar committee work. Professors without active licenses, including those without law degrees, could participate in some of the latter activities.

When New York County Acting Supreme Court Justice Edward McLaughlin sentenced two Testwell Lab executives, V. Reddy Kancharla and Vincent Barone, to seven and five years respectively, he meant to send a message :

As defendants point out, the trial court apparently felt that such sentences were warranted in order to “send a message” to “‘the construction industry in New York City [which] over the decades has been rife with corruption.’”

In three opinions running an astounding 299 pages,  thoughtfully parsed by former NYLJ reporter Dan Wise who now has his own blog, WiseLawNY, the First Department sent a message of its own:

In reversing the two men’s conviction for enterprise corruption in an opinion written by Justice James M. Catterson, four judges characterized the prosecution’s case as based upon “pure conjecture bolstered by empty rhetoric.”

The two were convicted of faking concrete tests used in huge construction projects.

Both men were convicted of manipulating data that skewed test results for concrete used at major New York City projects such as the construction of Yankee Stadium, the Freedom Tower, the Second Avenue subway line and Jet Blue facilities at JFK Airport. In all, the city ended up retesting concrete used in more than 100 projects over a decade.

And yet, in Justice Catterson’s final opinion as an appellate judge, having been defeated in the last election, he wrote:

Catterson also chastised the office for making “significant misrepresentations of the record” in its brief and at oral argument as it sought “to sidestep the absence of proof on the criminal enterprise issue.”

“Simply put,” Catterson wrote, “the People failed to introduce any evidence of a leadership structure, overall planning of the criminal enterprise, or any communications between Kancharla, Barone and any of the Testwell employees in furtherance of the criminal enterprise.”

New York has a long tradition of issues with concrete and construction, going back as far as the Tweed Courthouse.  It could be well argued that not a significant structure in New York City was built without some element of corruption involved.  Indeed, to a large extent, it’s been institutionalized in union contracts in many cases, making it part of the essence of large construction projects whether anyone likes it or not. 

But what it does not necessarily mean is that enterprises engaged in construction are corrupt, or that the individuals running those enterprises hold clandestine meetings in the dark of night to scheme about how to rip off the City or landowners. 

The requirements of contracts for major construction projects are onerous, including testing of materials to assure that they meet the specifications.  The entities who build skyscrapers and stadiums and public buildings aren’t small mom and pop shops, but large decentralized corporations with various departments and many employees, all of which have jobs to do that are distinct from other people’s jobs. Ultimately, the job was to get a structure built, properly and on time.

Testwell Laboratories role was to perform the tests needed to show that materials met the requirements.

Testwell was considered the preeminent material testing laboratory in the New York area. Both public and private builders relied on its test reports and certifications about the strength of concrete and the quality of steel in structures built in the city. 

According to witnesses inside Testwell, a variety of tests weren’t done the way they were supposed to, and there doesn’t appear to be any question of that.  But prosecuting the little people, the ones who faked results or used unapproved methods to get their job done, isn’t satisfying. Instead, the District Attorney went to the top of Testwell, the CEO and Vice President of Engineering.  The problem is that there was no evidence that either knew about the testing problems, encourage or enabled the falsifications.

What happened here, as often happens in trying to climb the ladder of a corporate structure, is that otherwise ordinary or common facts, here the Testwell website and computer system, are reinvented rhetorically to appear nefarious, from which the prosecution can argue that it’s done for malevolent purposes.

While there was testimony that Testwell’s computer system did not allow one to determine who had altered data, there was no evidence of any kind that the computer system was purposefully programmed to “hide” data tampering or that Kancharla had any role in the programming. We agree with Kancharla that it is one thing to draw inferences from the facts and another thing for the People to simply invent facts…

A computer system that was created in a way that served to provide the proof in the fashion the prosecution desired or thought it should was magically converted into a mechanism to conceal.  Even more peculiar, the Testwell website, which was apparently out of date as are so many, offered another opportunity for rhetorical “proof”:

The People also assert that Testwell’s corporate titles and responsibilities were kept vague to “camouflage [its] crimes and blur responsibility for them.” The People contend that Edward Porter’s title “was published on Testwell’s website as assistant laboratory manager despite the fact that he had nothing to do with the lab.” However, the People put forth no evidence that any engineer doing business with Testwell was deceived by Porter’s title or that anyone even considered the issue.

The post-hoc effort to rationalize a job title by rhetorical flourish, “camouflage” and “blur,” doesn’t make it so, but rather demonstrates how taking otherwise innocent, indeed meaningless, facts and through the use of artful language taint them and elevate them to inferential proof of wrongdoing.

And the most absurd contention was the use of the word “we” in company correspondence, suggesting that it meant personal involvement by top management in every decision, only to later be used to argue a diffusion of responsibility.  That’s how corporate people write letters, to promote the brand and service, and not in anticipation of a prosecutor putting every word under a microscope years later. It’s just silly.

Justice Catterson’s opinion is remarkable for not only seeing through the trick the prosecution tried to played on the court, but for calling it out in no uncertain terms.  The extrapolation of utterly ordinary practice into part of a scheme to commit enterprise corruption by tainting innocent conduct with words to convey criminal purpose pervades the trial process.  It’s not the fact of what happened, but the characterization of conduct to give the appearance of wrongdoing even though a defendant did nothing wrong.

And Justice Catterson said so.  It’s about time that the court focused far harder on what actually happened than the words used to describe. 

In the New York Times, Lincoln Caplan raises the specter of an adverse ruling from the Supreme Court  in Missouri v. McNeely.

In Missouri v. McNeely, scheduled for argument at the court on Wednesday, the police forced a driver to take a blood test at a hospital without a warrant, after he refused to take a breath test with a portable machine when he was stopped for erratic driving. The blood test showed that his blood alcohol content was 0.154 percent, or almost twice the state’s legal limit.

The Missouri Supreme Court wisely ruled that the warrantless blood test was an unreasonable search because there was no emergency that prevented the police from getting a search warrant in a timely manner before the alcohol in the driver’s blood dissipated.

Mind you, the justification for someone sticking a needle in an arm is only tenuously connected with saving a life, since it does nothing to stop a drunk driver, but merely advances the collection of evidence of guilt after a stop has been made. The sole benefit is conviction, which arguably will result in a sentence that will arguably have a deterrent effect.  Whether that’s so is a matter of religion.

Yet, the State of Missouri believes this is important. So does the United States of America.

The United States government, siding with Missouri, argues that warrantless blood draws are needed “to prevent the imminent destruction of evidence.”

It’s not that there would be no evidence without blood draws. Indeed, there would be the same evidence that was used for decades before blood draws, the observations of cops and the testimony about the defendant’s conduct.  In the worst of situations, there would still be evidence.  It would just be less conclusive evidence, and open to meaningful cross-examination that could make the cop look unconvincing.  So the crux of the argument is that without warrantless blood draws, the government couldn’t be assured of a conviction and would have to take its chances using other evidence.

Caplan doesn’t argue that blood draws are unduly intrusive, or painful, or contrary to the defendant’s right against self-incrimination.  He argues that there is no need for warrantless blood draws, as there is no exigency:

The Fourth Amendment prohibits the police from searching individuals without a warrant, but the Supreme Court allows exceptions to that rule for “exigent circumstances” — when the police believe that the delay involved in getting a warrant would lead to destruction of evidence.

But in 21 states, including Missouri, the police have successfully obtained thousands of warrants to get blood alcohol evidence.

One of the grand benefits of technology is that warrants are now only a phone call away.  The aspect of Caplan’s argument that is certainly accurate is that the cops can, and do, get warrants for blood draws on the fly all the time. The aspect that is problematic is that all this amounts to is adding a phone call to the mix, then drawing blood. Maybe in the hospital. Maybe on the hood of the cruiser. But either way, blood will be drawn.  Sure, it’s better to honor the warrant clause than ignore it, but blood will be drawn.

But there is a far, far worse problem lurking a mere foot or two down from the McNeely case.  Consider what happened to Stephan Cook in Sanpete County, Utah.

Cook claims the incident in question started on a quiet side road in Ephraim where he was parked smoking cigarettes inside a car with friends. Cook says police officers approached the car, suspecting the young men were smoking marijuana.

“When they approached us, they said it smelled like marijuana, but we said no, we’re smoking cigarettes and we just put the cigarettes out like you asked us to,” says Cook.

Cook refused to offer a urine sample after the cops demanded it numerous times.  He adds that he repeatedly asked for an attorney to be present.

While blood is drawn to test for alcohol, the test for marijuana requires a medium of a different color.

After obtaining what Cook’s attorneys call a “botched” search warrant, he was forced by police to be catheterized at Sanpete County Hospital. “The nurse told the officers to hold my shoulders while they cathetered me, and after that they took me straight to jail,” said Cook. 

As bad as a needle in an arm is, the involuntary insertion of a catheter is a rape. While it may be testosterone talking, it’s hard to imagine any man not fighting such an intrusion as hard as possible. I know I would.  Indeed, I would like to think that those who are vehemently against the rape of a woman would feel similarly about the insertion of a catheter, if they cared at all about men as they do about women. 

This is the slippery slope Missouri v. McNeely leads us on, and if you find that unimaginable, consider that Stephan Cook sued for the sexual assault perpetrated on him by Sanpete County police, and United States District Court  Judge David Nuffer dismissed the §1983 action, citing Cook’s plea in abeyance

According to Cook’s legal team, the federal judge dismissed his civil lawsuit partially due to the fact that Cook had previously admitted guilt. However, both Cook and his attorneys say the plea of abeyance was made under duress.   The attorneys, who plan to appeal, say the ruling to dismiss the case on those grounds is just plain wrong. “Irrespective of whether he committed this crime, that’s irrelevant to whether they’re entitled to forcibly catheterize him,” said attorney Justin Heideman.

In other words, even if Cook was toking away, they don’t get to force a catheter into his penis. Naturally, the police disagree.

Peter Stirba, defense counsel for the Sanpete County officers issued this statement in response to the dismissal of the lawsuit: “The officers’ behavior was fully justified and certainly was not violative of any of Mr. Cook’s constitutional rights.” 

After all, if they can’t collect urine, how can they conclusively prove Cook was smoking marijuana?  And if inserting things into our bodies to collect the most conclusive evidence possible doesn’t offend the Constitution, then what reason is there to distinguish between one body part and another?

While this might add a cynical component to the problem, it is of course possible that a catheter is forcibly inserted into a recalcitrant suspect’s penis and the urine seized does not prove the use of marijuana. Let’s say a defendant is disrespectful to a police officer, and the officer says to himself, this fellow would never behave so contemptuously of my authority unless he was high, thus explaining the need to ascertain, with as much certainty as possible, whether there are drugs coursing through his veins. And so a forcible catheter is the tube of choice.  And afterward, no drugs are found, and the police officer, whether with or without an apology, let’s the suspect go on his way, free of any judicial review.

And this is the potential future if the Supreme Court backs up the government, much like  it’s our past and present.

There is no one who flies who hasn’t heard the command to turn off their cellphone when the airplane leaves the gate.  The rationale was that cellphones would interfere with the plane’s sensitive navigation equipment and, perhaps, make the plane fall from the sky. Why this might happen was never clear, but it was the explanation for the rule, and the rule was clear. Turn it off or no one goes anywhere.

Thoughtful people noted that no plane has ever fallen from the sky because of the errant cellphone being left on.  Finally, the Federal Aviation Authority, the promulgator of the rule,  conceded that it didn’t have an actual basis for the rule, but preferred to play it safe by default. 

The rule was created in the early days of cellphones, when there was much concern about what their magic waves might do, and no one was quite sure whether it could cause a problem, and no one was willing to take the chance that it might cause a plane to fall from the sky.  Today, years and millions of cellphones later, it’s not as much of a mystery, particularly since pilots use iPads in the cockpit and still no plane has fallen.

Which presents a conundrum for Alois Vetter, a 45-year-old from Colorado who was  flying Southwest out of Indianapolis to Denver. 

An air traveler was arrested yesterday for refusing to turn off his cell phone prior to the departure of a Southwest Airlines flight from an Indiana airport, police report.

Alois Vetter, 45, was busted for disorderly conduct after allegedly ignoring repeated requests from crew members on the flight, which was headed to Denver from Indianapolis.

The plane’s captain, Ashley Woolman, told police that he taxied the Boeing 737 back to a gate around 7:30 AM and ordered Vetter to leave the plane. Vetter, who was traveling with his 15-year-old daughter, refused, according to an Indianapolis Airport Police Department report. He was then arrested by airport police.

Pictured in the adjacent mug shot, Vetter was booked into the Marion County jail on a misdemeanor charge. Vetter’s daughter was briefly placed in the care of child welfare officials until her father was released from custody.

Assuming Vetter did as they say, he violated the rule. His disorderly conduct is not for the offense of possession of a cellphone left in the “on” position, but refusing to turn it off upon command.  The law is remarkably protective of orders given on airplanes.  But where is the culpability of refusing to adhere to a rule that is now conceded to be baseless?  If the rationale is that cellphone will make planes fall from the sky, and the fact is that they won’t, then the rule is arbitrary and capricious. Refusing to adhere to an arbitrary and capricious rule doesn’t form the basis for an offense.

And yes, his mugshot makes him look like a bad guy. Everyone with a dark beard looks like a bad guy these days. Get over it.

Before reaching the legal issue, a few points are undeniable. First, as a result of his refusal and the reasonably anticipated reaction, a planeload of people were delayed and inconvenienced.  Each of them had something better to do than sit on the tarmac awaiting local police to come for Vetter.  Had this been an act of disobedience with some claim to societal virtue, maybe it could be argued that Vetter’s refusal, like Rosa Parks’ refusal to sit in the back of the bus, was worth enduring.  But this wasn’t Montgomery, and Vetter was no Rosa Parks. 

Even though the long-held explanation for turning off cellphones may be nonsense, another rationale, far more worthy, remains.  Talking on the cellphone is unbearably annoying to those around you in close quarters. No one cares enough about junior’s wart, those cute shoes or how deeply moved you were at Graceland to suffer listening to your insipid conversation. 

There is nothing important enough that you have to say to put others through that torment. If you are sitting within arm’s reach of me, I may feel an irresistible impulse to grab your cellphone and throw it as hard as I can against the bulkhead. Don’t make me do that. I’m not a violent person, but I might not be able to control myself.  Text all you want. Send emails if you must. But don’t chatter. Just don’t.

Yet this isn’t the rationale for commanding passengers to turn off their cellphone, though it should be.  So what becomes of a rubric when it loses its rationale?

We are generally a compliant society, doing as we are told for no better reason than someone has told us to do so.  It may be that it’s not worth the fight. It may be a matter of courtesy to our fellow passengers. Both are fair reasons to comply. Yet the individual who decides that he’s not going to be courteous that day, he’s not going to do as he’s told when there is no justification for doing so other than not make a ruckus. What is the moral basis to make him a criminal when his malum prohibitum wrong can no longer be justified?

While Vetter’s conduct was, in the grand scheme of fighting for freedom, foolish as it failed to serve the greater good, pissed off the other passengers who didn’t sign on for the fight, and won’t change any prohibition, it also fails to rise to the level of justifying imposition of criminal sanctions.  Until there is a change in FAA and air carrier rules that rationalizes policy with reality, this condition will persist.

So Vetter is a major jerk. That’s not a crime per se, and if it was, most of us would be criminals for something.  . 

The latest gimmick to make law school relevant is to recreate the third year curriculum so that students graduate with some basic skills in the practice of law.  While prawfs and deans swirl adjectives around their innovations, Eric Mayer at  Unwashed Advocate provides some hard core practical advice in Client Intake 101.

Here is the syllabus for the first four classes:

1. Introduction. Title: “No Kids, We Don’t Make This Shit Up”

2. What the hell is a “consultation?” How your definition is not the same as that of the potential client.

3. Practical Exercise: Controlling the initial consultation. Theme: It’s not for them; it’s for you.

4. Getting to the Bottom Line 1. Theme: Your mortgage cannot be paid in thank-you-so-much-for-your-time and you-gave-me-a-lot-to-think-about currency.

Read the rest, as it’s not only hysterically funny, but spot on accurate.  Coincidentally, Mark Bennett (who is a  guest-lecturer in Eric’s course based upon his expertise in dealing with nutjobs) posts about why some potential clients have extreme difficulty finding their perfect lawyer.

Finding a second lawyer to replace the first lawyer on a case is difficult and expensive—the second lawyer, if she is at all competent, is going to look closely both at what the first lawyer did (to determine what was screwed up, and whether it can be fixed) and why the client and the first lawyer parted ways (to determine if there is something wrong with the case or with the client).

Finding a lawyer to replace a pro se party on a case is even more difficult and expensive—the pro se has, almost by definition, screwed up the case; and there is likely something wrong with both case and client that no lawyer took it the case in the first place. While not every pro se lawsuit is filed by a madman, enough of them are that pro se filing might raise a reasonable presumption of madness. “Mad” doesn’t mean “wrong,” but lawyers often will decline to invite more madness into their lives, even for a case that is a potential winner.

In the case at hand, Bennett notes that the pro se complaint (primarily against the TSA) not only covers the party who perpetrated the alleged wrong, but

Defendant Mary Frances Prevost (hereinafter “PREVOST”) was Plaintiff’s second criminal attorney. Plaintiff appreciates the fact that the criminal charges were finally dismissed and gives credit to PREVOST for helping to see that accomplished. Plaintiff is suing PREVOST at this time, however, for her unethical practices and for her failure to comply with Court orders. Plaintiff is willing to remove PREVOST as a defendant if she will apologize for her wrongs and simply speak honestly with Plaintiff so Plaintiff can properly prepare for her Federal lawsuit trial.

Mary Frances Prevost, by the way, was the lawyer who won the criminal case. Apparently, a simple thank you wasn’t enough.  So who wants to hop on this case?

What are the chances that the lessons Eric and Mark offer will find their way into some law school’s third-year curriculum?  By show of hands, how many lawprofs and deans are suitably versed in solo or small firm practice?  How many read either of these posts so they would have a clue? Never mind. We know the answer.

But wait, you say.  There are always adjuncts, real lawyers offering real world experience in the practice of law, to mold these minds of blob into practicing lawyers.  Well, that’s true. But based upon my highly scientific empirical analysis of law students, there is a problem.

By my estimates, about 60% of the students will be capable of accepting that real life isn’t unicorns and rainbows. They will understand that the law deals with real people, from the wonderful to the venal, the thoughtful to the batty.  That leaves 40% who will prove themselves not merely incapable of embracing life as it exists in the trenches, but offended by it.  How dare these nasty trench lawyers say mean things about clients, judges, Avvo, technology and each other.  They are passionate.  They are certain. They are a danger to themselves and others.  And they can’t bear to hear it.



Forty percent of law students being taught the practice of law are now crying, preparing their list of things that offend their sensibilities and running to the administration to demand that their world be cleansed of the nastiness of reality so they can graduate without ever hearing words that make their delicate ears hurt.

And they won’t like this post much either.

At Above The Law, fellow curmudgeon turned Anglophile, Mark Herrmann, raises the inside baseball problem of who feeds appellate judges the bench memos upon which they rely in familiarizing themselves with a case before them.

Back when God was young, I clerked for a federal appellate judge. I saw how things operated in my circuit, and my friends clerking elsewhere told me how things worked in other circuits. One operating procedure differed between circuits; the procedure affected litigants (without their knowledge), and one system was plainly better than the other.

Back in 1983, at least, some circuits asked clerks to prepare only a single bench memo for the entire three-judge appellate panel. That is: A three-judge appellate panel learned that it would be hearing, say, 21 cases on the May docket. The clerks in the three chambers then negotiated among themselves to decide which chambers would take the lead preparing the bench memo for each case.

Before argument, the chambers would swap bench memos. In a circuit that worked this way, we would ship my bench memos about the Juliet and Romeo cases off to the other chambers, and we would receive in return their bench memos about the Ariel and Caliban cases they’d been assigned. All of the judges read only my bench memo about my cases, and all of the judges read only the other guy’s bench memo about his cases: One bench memo for the entire appellate panel.

The alternative procedure was that each judge would have his clerks prepare bench memos for each case, so that each of the three judges on a panel would have three different bench memos as prepped by their own clerks. The practice of one bench memo per case persists in some circuits today.

Mark is certainly correct in his complaint, that feeding all judges on a panel one memo, so that there is no diversity of views and the judge is left with the quality of comprehension of a clerk selected by someone else, is the least beneficial practice.  And thus, three judges with three bench memos prepared by their own chambers is better than one.

But that’s not likely much comfort to most of us.

When preparing an appellate brief, an enormous amount of thought and effort goes into every aspect of the argument.  It may be highly nuanced, requiring both a deep understanding of law and practice, as well as an appreciation of humanity and the ugly reality in which it exists.  Every word is parsed for precision. Every sentence vetted for tone. Every aspect of the brief undergoes scrutiny over and over, to be sure that it expresses the argument as clearly and persuasively as possible. 

And then, it’s butchered in the hands of some snot-nosed kid whose greatest achievement was being a law review editor, who has never experienced life and who is far more concerned about bluebook citations than how much a child will suffer for adherence to a beloved rubric. 

The underlying chambers explanation is that appellate judges are too busy to do their own work, such as reading briefs. After all, they have articles to write, speeches to practice and the occasional snarky retorts to Supreme Court judges who don’t care for their book reviews.  Then there’s time needed for looking at pictures on the computer. Who could possibly fit brief-reading into this busy schedule?

Plus, they get a gaggle of baby lawyers, fresh-faced and desperate to let their important opinions be known, who can brief cases like no get-out, explaining their law school GPA and authority to pass judgment on lawprof articles.  These are smart people, even if only book smart.  Certainly they can reduce a 50 page appellate brief into a few salient sentences, and it would be shame to waste them.

Of course it’s better to have a panel with bench memos reflecting three takes rather than one.  When the judges are working off one kid’s rewrite, his bias and naivete infects the panel.  Bear in mind these are appellate judges, who are unlikely to have any personal experience at the far counsel table and may have never tried a case, either as advocate or jurist, in their lives. Chances are even better that they never held the hand of a sobbing mother or child; you don’t get many of them when representing Fortune 100 companies.  And so, the significance of the bench memo is magnified. Greatly magnified.

In those circuits where the judges feel so horribly overburdened by their workload that they not only can’t take a few minutes to read the pages that took a lawyer a hundred hours to prepare, the least they can do is consider more than one wholly inexperienced view of the case.  The very least, as this falls far short of anything remotely resembling a fair hearing and understanding of the case.  To be so incomprehensibly lazy as to rely on one kid’s work reflects utter disrespect for the lawyers and the lives of the people who mistakenly believe that meaningful review exists.

Granted, the use of clerks to prepare bench memos is a time-honored tradition, and the clerks who do so believe their work is excellent and fair.  And perhaps it is, at times. But the depth of understanding and experience they lack prevents them from appreciating where they fall short, miss ideas, mischaracterize points and fail to appreciate what is obvious to any experienced lawyer.

And given how much stock we all put into appellate decisions, their precedential value and the affect they can have on so many lives, it’s just not good enough to leave it in the hands of children,  Certainly not one.  Not even three.  And if judges are too busy to do their core job, then they shouldn’t wear robes.  And now you know the dirty, little circuit secret.