Alternate Title: Handing a loaded gun to children.

I swear I don’t go looking for problems, but somehow they find me.  A relative sent over a series of documents purchased online, the core of which was a special needs trust, and I was asked to take a look.  The documents were purchased from a business that was certified as a “legal document preparer,” the principal of which had proud experience selling cars bearing high-end marques.  He was not a lawyer, and at the end of his small-print disclaimer, admitted so.  He was offering no legal advice, he said.

The fee for the documents was, well, high. Very high, given that these were fill-in-the=blank forms, prepared once and then resold to anyone willing to pay.  It was not substantially less than had these documents been obtained from a lawyer, who would have been capable of providing legal advice, but the seller gave the impression that purchasing the docs from him would be substantially cheaper.  And, he explained, anybody could fill in the blanks, so there was no need for legal advice.  A purchaser could beat the system.

When the docs came to me, they were already filled in. They were lengthy, which is always very impressive to a non-lawyer who can feel weight far easier than quality.  But the fact is that the docs were surprisingly good, well-written and comprehensive.  They came with instructions that were also quite good.  In fairly straightforward language, they explained what the docs meant and what role the various named positions played.  Some of the language in the docs was off, and there were small mistakes, but given the whole, it was excellent work.

And it was a looming disaster.

The existence of fill-in-the-blank documents is hardly as new as its supporters think.  Bloomberg sold legal forms decades ago at stationary stores, which contained all the expected verbiage for basic legal documents.  They were always available for the public to buy, though most of Bloomberg’s customers were lawyers.  You would buy a pad of 50 general releases, or an envelope with all the papers needed for an uncontested divorce. 

Some business owners used the forms for their recurring needs, but for the most part, people left the forms to the lawyers. They understood that the form wasn’t the value, but the advice as to what form to use, how to fill in the blanks, that distinguished the lawyer’s work from the piece of paper.

Testamentary documents are among the most serious legal papers around, not only because they protect our children, but because they can’t be fixed after the testator dies.  Screw up now and it’s too late later.  My relative put names into blanks that seemed to make sense at the time. In doing so, the documents would have created a situation so unwieldy as to be functionally useless, and enormously expensive merely to cover the expenses required by the choices. 

There was a fine set of docs. There was no concept of how to create a cohesive and viable plan to make them work properly. It was a tool without the understanding of how to use it. This is the Utopia of legal futurists, where every person can be their own lawyer with an online form and a printer. It’s a lie.

The virtual lawyer concept was exposed by the success of takedown lawyer David Blade. Not because the virtual lawyer concept didn’t necessarily work, but because David Blade didn’t exist.  It may make your life as a lawyer easier, and enable you to run a practice from Starbucks, but it allows David Blade to do the same. If you care only about what’s in it for you, then you likely couldn’t care less that on the internet, nobody knows you’re a dog.

The sale of legal forms is part of the transparency notion that is so heavily promoted, that if we put all the statutes, caselaw and forms on the internet, people can be their own lawyers. Because any idiot can correctly understand the law. It’s easy. Just ask anyone, and they’ll tell you.

To the extent it might require some additional insight, as if lay interpretation of law might not always be sufficiently clear and precise, the futurists tell lawyers that we should spend out days explaining it to non-lawyers so that they can play lawyer for themselves. The non-lawyers will like us more if we do that, we’re told, and the banks will accept their deep appreciation in lieu of repayment of school loans. Well, maybe not.

Lawyers are expensive. People would much prefer not to pay for legal advice, and the notion is being promoted hard that they shouldn’t have to. It’s a commodity, they’re told. It’s easy. It’s their law, so why should they need lawyers to explain it to them or do it for them? 

The people doing this talking haven’t spent a lot of time holding hands and wiping away tears of real people, who explain that they thought they knew what they were doing but, well, were absurdly wrong. And are now stuck in disastrous litigation, or have so badly screwed up an estate that could have been easily handled. Or are under water on a home with a mortgage that they could never afford to pay. It seemed so easy at the time. It make so much sense to them. And it produced a disaster.

Criminal defendants and their families explain their understanding of the law to us all the time. They have for years. They watch TV, and have what they consider to be a pretty good idea of how things work. And then there was the old lady on the corner who knows all about stuff. They tell us their understanding. And they are utterly clueless.

The law isn’t easy. It isn’t clear. It two lawyers and a judge can’t agree on what the law means, why would a non-lawyer be able to do so?  The law has developed over centuries, and embodies a lot of odd rules (think “fertile octogenarian”)  that only make sense if one understands the context and history. Non-lawyers don’t, and so they couldn’t possibly know that the rules exist or why. They aren’t supposed to know. And yet, they are being handed forms and told that they are just as capable of handling their legal affairs by themselves. And they believe.

We are setting people up for massive failure by telling them a lie. People who naively believe that non-lawyers can manage their legal affairs just fine with a little help are leading them down the path to failure and misery.  Remember all the gurus who ask, “has any client ever been fooled by what a lawyer says online”?  Ask David Blade’s clients.

And when the realization that this fool’s panacea has failed them, left people in misery because they had blanks to fill in without the knowledge to understand how and why, the same non-lawyers who think they got one over on lawyers will hate us even more, blaming us for having lied to them when they were told they could do it all by themselves.

Endnote: This won’t affect my practice, so it’s no skin off my nose if non-lawyers buy their forms online and gain their “knowledge” from websites that offer information they don’t understand.  I have no horse in this race and say this, against a tidal wave of marketers, futurist, technophiles and academics, who are leading non-lawyers to disaster.

Carlos Miller, who has been perhaps the most important chronicler and advocate for filming and photographing police, was arrested (for the second third time) in Miami for not being sufficiently obsequious to the cops.  And for the second time, he beat the rap. 

The prosecutor’s summation in the case offers a valuable insight into the problem.

The most telling part of my trial yesterday, besides the continuous lies under oath by Miami-Dade Police Major Nancy Perez, was when a frattish looking prosecutor fresh out of law school named Ari Pregen tried to explain to jurors how a “real journalist” was supposed to act.

A real journalist, he explained, was supposed to follow police orders without a second thought. A real journalist would never back talk to police. A real journalist would never question a direct police order as to why he was not allowed to stand on a public sidewalk.

No doubt Assistant State Attorney Ari Pregan, 2010 St. Thomas Law grad  admitted to practice in Florida on November 30, 2011, is sufficiently brilliant to opine on how real journalists are supposed to behave. And he made his argument plain: Real journalists do what they’re told.

Fortunately, Carlos’ lawyer, Santiago Lavandera, offered a different perspective on how “real” journalists behave:

“In this country, when you’re a journalist, your job is to investigate.

Not to be led by your hand where the police want you to see, so they can hide what they don’t want you to see.

No, when you’re a journalist, a real journalist, it’s your job to go find the truth. As long as you are acting within the law as Mr. Miller was, you have the right to demand and say, ‘no, I’m not moving, I have the right to be here. This is a public sidewalk, I have the right to be here.’

He did his job. He has the right to do his job the way he sees fit. It’s not up to these prosecutors to tell anybody, much less an independent journalist, how to do their job. It’s not up to the police officers, it’s not up to a judge or the president.

In this country, journalists do their job the way they see fit.

What’s he describing is Cuba. What he’s describing is a communist country. The government says you can’t be here because I say you can’t be here.

And it’s infuriating to me that a prosecutor would try to get up here and try to convince you that just because a police officer says something, that he has to bow his head and walk away.

That is a disgrace to the Constitution of this country.”

The student at the center of the latest storm is Alex Myers, an exchange student from Australia who worked as an intern in SUNY Oswego’s Office of Public Affairs (OPA). Myers was also enrolled in an advanced-level course in SUNY Oswego’s journalism department. For one of his class assignments, Myers was given the task of writing a feature on a public figure. Myers chose SUNY Oswego men’s hockey coach Ed Gosek,

The next evening, Myers received a hand-delivered letter from SUNY Oswego President Deborah Stanley, informing him that he was being placed on interim suspension, effective at 6:00 p.m. October 19, and that he would have to vacate his dorm room by that time. The letter also banned him from all campus facilities and informed him that he may be subject to arrest if he came on campus. 

Among the behaviors that merit this charge are “harassment,” “intimidation,” “threats,” “conduct which inhibits the peace or safety of members of the College community,” and “retaliation, harassment or coercion.” The charges further stated that:

Specifically: Campus network resources may not be used to defame, harass, intimidate, or threaten another individual or group.

As much as people think lawyers should be able to stand up in court and expound on any point that serves their cause, the reality is that we are limited by this quaint concept called evidence.  Evidence is stuff that comes from things that a judge accepts as being sufficiently reliable to submit to the factfinder, or the words of a sworn witness. 

When the point requires a witness to offer an opinion or example to make or clarify a point, the witness has to be determined to possess sufficient expertise to be worthy of expressing an opinion.  Contrary to public perception, everybody is not entitled to an opinion in a courtroom. You have to know something first, unless you work in law enforcement, in which case expertise in all things necessary to convict is assumed.  It’s harder for the defense.

Ohio lawyer Dean Boland was an expert witness in child porn cases. Why, and what qualified him, isn’t entirely clear, but he was.  From Wired :

Attorney Dean Boland purchased innocent pictures of two juvenile girls from a Canadian stock-image website, then digitally modified them to make it appear as if the children were engaged in sexual conduct.

Boland was an expert witness for the defense in a half-dozen child porn cases and made the mock-ups to punctuate his argument that child pornography laws are unconstitutionally overbroad because they could apply to faked photos.

Usually, evidence prepared for court is immune from liability, civil or criminal, provided it’s properly related to an action.  Otherwise, it would be impossible to perform basic functions, such as playing child porn to a jury in order to prove the basis of a charge against a defendant, whereas playing it under other circumstances would be criminal.  One would think the same true of Boland’s mock-ups, used only in his expert testimony.  Apparently not.

As a result, in 2007 he found himself the defendant in a deferred federal child-porn prosecution in Ohio, even though his exhibits helped clear at least one client of child-porn-related allegations. Now, a federal appeals court is upholding a $300,000 verdict in a lawsuit brought by the parents of two of the girls whose images Boland doctored.

And the Sixth Circuit upheld this award despite the fact that the images were never seen by anyone outside of a courtroom, and the child models (and their parents) in the stock photos never knew about it until the FBI paid them a visit to inform them.

Boland argued that he was immune from such a lawsuit because, among other reasons, he’d created the images for use in court, never distributed them, and that the First Amendment protected him.

But the court ruled that it was immaterial that Boland never displayed the images outside of court and never transmitted them electronically.

“The creation and initial publication of the images itself harmed Jane Doe and Jane Roe, and that is enough to remove Boland’s actions from the protections of the First Amendment,” the appeals court ruled.

It remains far beyond my comprehension how any person finds child porn titillating. It is fundamentally disgusting and repulsive. Yet, overbroad laws, even in the realm of child porn, must be addressed, making this perhaps the only justifiable basis for the creation of fake child porn, so show how easily a porn can be manufactured that doesn’t involve any sexual conduct by a child.

Given that Boland was prosecuted (even though it resulted in a deferred prosecution) and held civilly liable for damages, what is the likelihood of anyone being willing to take the witness stand in the challenge to a vague and overbroad law?  And if they don’t take the stand, there is no evidence upon which to argue the cause. 

In upholding the damage award, the 6th Circuit offered this rationale:

In today’s digital world, any image is “primed for entry into the distribution chain” of underground child pornographers. Hotaling, 634 F.3d at 730 (citing Osborne v. Ohio, 495 U.S. 103, 110 (1990)). Even if Doe and Roe never see the images, the specter of pornographic images will cause them “continuing harm by haunting [them] in years to come.” Osborne, 495 U.S. at 111. As a result, it is immaterial that Boland never displayed these images outside of a courtroom and never transmitted them electronically.

The “specter”?  Specter is a scary word, but meaningless. How will it harm them? How will it haunt them? The children in the images Boland used would never have known had the FBI not knocked on their parents’ doors and told them. No one, outside of the courtroom, would have ever seen the simulated images but for the FBI flashing them to the parents. If there is a specter here, it’s wearing an FBI jacket.  If anything haunts these parents and children, it happened at the hand of the FBI. 

Should Boland have created these simulated child porn images at all?  The fact is that it’s enormously more powerful to make a point through physical examples, images, then just words. The effectiveness of Boland’s testimony was certainly far greater because he could show, not just tell, his point. 

Was it fair to the two innocent child models of the stock images used to create simulated porn? No.  Perhaps he could have gotten images from someone with permission, or used his own children’s pictures for that matter.  The children in the stock images didn’t ask to become part of Boland’s testimony, and the idea that their images were morphed into child porn is, well, deeply disturbing at best.  So it was a poor choice.

But was it worthy of criminal or civil liability?  As long as the images never made their way from the well of the courtroom to, well, anywhere else in the world, then the answer has to be no. Even though it was a bad move, no one was harmed by it, and no damages were suffered. Indeed, more suffering ensued from the FBI’s conduct than Boland’s. 

And yet, the next time the defense needs an expert witness in a case involving child porn, what are the chances that anyone will be willing to take the risk, or able to provide sufficiently effective testimony to make this nuanced legal point?  Unless they are prepared to pay up $150,000 per child, slim. Slim, indeed.

H/T Fritzmuffknuckle

 

I am not a fan of tattoos, but that’s just my sensibility. Your mileage may vary. Despite tats not being quite my taste, there is one thing they are not: a terrorist threat.  Except in Minneapolis, where spokesman Sgt. Bill Palmer (where  have I heard that name before?) saw it clearly:

“The tattoo is certainly a new one,” said Minneapolis police spokesman Sgt. Bill Palmer. “It’s a new one on me. … This threat certainly isn’t subtle.”

The “threat,” which Hennepin County police learned about from the Facebook page of 20-year-old Antonio Frasion Jenkins Jr., who thought all those hits were from people who liked him, was neither pretty nor, as Sgt. Palmer observed subtle.  From the Star Tribune :

The tattoo on Jenkins’ left bicep depicts a person holding a semi-automatic handgun with the barrel of the gun partially in the mouth of a pig, according to a criminal complaint. The tattoo includes the officer’s name (although it’s misspelled), his badge number and an expletive directed at police. The Facebook post on Jenkins’ page also includes a message about the tattoo: “My tattoo iz a pig get’n his brains blew out.” According to the criminal complaint, 18 people gave the post a “thumbs-up” (or “like”) response

And he paid to have this done to him. Notably, the expletive wasn’t just any expletive, but a “vile” expletive. That certainly changes things, causing the prosecutor to put on his serious face.

Hennepin County District Attorney Mike Freeman said: “It’s real and it’s serious.”

And so, Jenkins was charged with incredibly poor judgment in permanently defacing his body “making terrorist threats (for the benefit of a gang).”  Nowhere in the article is there any suggestion that the whole courtroom had a good laugh, and Jenkins was released and given a ride home.  To the contrary, Jenkins was a gangbanger, and tats on gangbangers are much more threatening.  If pictures could kill.

Into the breach stepped the ACLU.

The ACLU’s [Chuck] Samuelson says no.

He conceded that police have a known bad guy who is indicating strong disapproval of this police officer. “But to make the stretch to terroristic threats is a big leap,” Samuelson said. “For terroristic threats you have to brandish a gun or a gun lookalike. … Basically we have someone making fun of the police.”

“Bad manners, you bet,” he said. “Criminal? No.”

What distinguishes this arrest, this charge, isn’t that a delicate police officers whose feelings were hurt by a person who cursed in his presence and made him feel badly about his choice of careers. That happens regularly, and cops wrap it up in a pretty bow with a few added details of conduct that, if not proven false by video or witnesses, makes out the arguable existence of an offense. 

Here, however, there is no additional allegation of any action by Jenkins, aside from some bragging about his tat.  This time, the police felt that the mere image, the existence of this tattoo, was enough to establish a crime.  They didn’t even try to bury their true feelings in claims that make out a putative offense.

This is bad. That the prosecutor didn’t laugh at it and tell them to go have a cup of camomile tea is bad. That the judge didn’t rip the prosecution a new one for having wasted the court’s time, that is bad.  Bad, bad, bad.

And that a person, even an alleged gangbanger (a status so hated by police as to itself be tantamount to a terrorist threat even in the absence of any conduct that constitutes a crime) is being prosecuted because an incredibly ugly image on his body makes the cops feel angry and hurt, not to mention disrespected, goes well over the line.  There is no crime here, except against good taste. 

And when the mere existence of expressive speech so offends the cops that they deem it worthy, in itself, to establish a crime, and the rest of the system goes along with it as if it wasn’t batshit ridiculous, we open a whole new door to the criminal justice system, things that piss off police and things that make police frightened.

Sticks and stone, cops. Now go drink some tea and let Jenkins loose.  If he’s such a bad guy, he’ll eventually do something that will actually justify an arrest. In the meantime, he already has to suffer the indignity of this butt-ugly tattoo. Isn’t that enough?

H/T Ed at Blawg Review

In the past week, Carolyn Elefant wrote a post at My Shingle  promoting the idea of new lawyers charging $99 per hour, and then a second  addressing some of the criticism of the idea.  At its core, her point was that it’s better to make a barely livable wage than starve.

Short term survival matters, even if it comes at the expense of longer term concerns.  It’s not that the idea is a good one, but rather that a young lawyer who earns enough to survive today has a chance to do better tomorrow.  If he doesn’t survive, then what difference does the future make?

But the mindset behind survival isn’t limited to lawyers.  It’s become the American way, and it repeats itself in almost every aspect of the fabric of our lives.  Consider that a poll found that 30% of Americans are willing to undergo TSA cavity searches if it means survival.  Forget, for the moment, that survival for lawyers is hard economic fact, while survival for airplane travelers is a product of mindless fear.  To the person who believes, it’s real.

Via Turley :

The survey was conducted online by Harris Interactive on behalf of Infowars from November 5-7 among 2059 American adults. People were asked: “Given the recent reports concerning the threat posed by terrorists who plan to implant bombs within their own bodies, how willing, if at all, would you be to undergo a TSA body cavity search in order to fly?” Thirty percent said yes.

Kristen Cunnane is 30 years old today, but was a mere child of 12 when she was  abused by teachers at Moraga Middle School. 

Cunnane was sexually abused by two Moraga middle school teachers in the 1990s, one of them over a four-year period. She sued the district, retired Joaquin Moraga Intermediate School principal Bill Walters, retired assistant principal Paul Simonin and retired superintendent John Cooley in Contra Costa Superior Court, saying they repeatedly ignored allegations of abuse, allowing her and other students to be victimized.

Former Joaquin Moraga P.E. teacher Julie Correa pleaded guilty to rape and sexual battery against Cunnane over a four-year period beginning in 1996, when Cunnane was an eighth-grader. Cunnane said Correa groomed her after she confided in her that Joaquin Moraga science teacher Daniel Witters had molested her. Witters committed suicide shortly after a group of girls came forward with allegations in 1996, and police stopped investigating him criminally after that.

The Moraga School District’s response to the suit?

The district and three other defendants claim Cunnane “was herself responsible for the acts and damages of which she claims,” in the Oct. 24 legal filing.

“Carelessness and negligence on (Cunnane’s) part proximately contributed to the happenings of the incident and to the injuries, loss and damages,” they claim.

After all, shouldn’t the 12-year-old student bear the responsibility for being so enticing to adult teachers under the supervision of school administrators? Lolita much? 

The district’s response drew obvious outrage, so the district doubled down to justify this utterly outrageous response.

The school district’s attorney said Thursday that the language used as part of its legal stance was appropriate and necessary at the start of such a civil case with significant financial ramifications. The response did not specify how Cunnane was “negligent” or “responsible” for the abuse.

Louis Leone said “every potential defense” must be raised in such legal filings, “since failure to do so results in a waiver of the defense.”

“It is imperative that all possible defenses be raised at this point in time. As more facts become known, the district will then reassess its defenses,” the Walnut Creek attorney said.

A very cautious, lawyerly reaction, but for two crucial problems. First, the abuse occurred nearly 20 years ago, and to the extent the district doesn’t know the facts as yet, someone over there is brain dead.  Second, regardless of the facts, there is no argument to be made, no scenario described, no details parsed, that could conceivably shift any responsibility whatsoever from the teachers who raped and molested Cunnane onto a 12-year-old student.  It doesn’t matter if she ripped off her clothes and threw herself atop the teachers.  They are still totally responsible for what they did to a child.

The protection of their charges is a fundamental argument used by school districts to justify the mindless enforcement of their beloved rules, where embrace of such simplistic concepts as zero tolerance draws the cheers of parents until their baby is involved or where the result is so ridiculously absurd that not even the most brickheaded mommy can ignore the inapplicability. 

And yet, the Moraga School District has allowed its lawyer, perhaps even compelled its lawyer, to answer the complaint by alleging that the fault for the rape of its student by its teacher is the child’s fault.  It’s hard to reconcile.  It’s reduces pedagogical excuses to a joke.

These are the same governmental units that pontificate about the blight of bullying, violence and sexual contact, all too happy to throw students off the ledge for calling someone fat, or drawing a picture of a gun with a crayon, or hugging another student.  They have to, they claim, because it’s their responsibility to protect students. It’s their sacred duty. 

Yet, when put to the test by Cunnane, the knee-jerk reaction is to blame the child who was raped.

The district’s lawyer’s explanation for his outrageous allegations will likely evoke a circumspect reaction from some civil defense lawyers, who may explain that it’s not to be taken too seriously, but just included in the district’s answer in “an excess of caution.”  After all, the argument that a defense not stated is waived is certainly accurate, and it might be negligent of the lawyer to fail to include a potential defense, no matter how absurd. 

This is true, yet utterly wrong.  At best, it reflects the worst of lawyers, so overly cautious as to rationalize the outlandish possibility that the child can be at fault for being raped by a teacher.  At worst, it reflects how cynical lawyers have become in their zeal to win at any cost.  The allegation that a 12-year-old (notice how many times I mention Cunnane’s age in this post?) can ever be responsible for being molested by her teachers goes far beyond frivolous. 

The lawyer and district should not only be sanctions for raising such a defense. but should be ousted from any position of trust forever for even considering such a claim.  If anything, the fact that students were being raped and molested at the Moraga Middle School, and that pleas for help were ignored, is bolstered by the fact that the district would even consider such a defense.

One would hope that most school districts, most administrators, most teachers, and most lawyers, would be disgusted by what happened here. And yet, the fact that a school district, any school district, would attempt to shift liability off its shoulders by putting it on the back of a 12-year-old student is beyond belief.  To the extent that school personnel might have claimed entitlement to the benefit of the doubt before, unless they condemn the tactics of the Moraga School District in this case, they have forfeited any claim of righteousness.  As for the Moraga School District, they are scum.

H/T Fritzmuffknuckle

During my powerless, cold hiatus,  Marc Randazza did a bit of digging into a website that posted naked photos of people with names and some personal information, and then offered the services of “takedown lawyer” David Blade, who guarantees success.

Marc offered takedown lawyer David Blade the opportunity to establish that he was a real lawyer, and received nonsensical threats in return.  You see, no lawyer by the name of “David Blade” could be found, even though he had a website that proclaimed him a lawyer and was taking money from people on the internet for representing them.  His excuse?

I work as a Public Defender for the State of New York. I’m a real attorney – not an ‘internet lawyer’.

The New York Court of Appeals  has upheld the Bloomberg plan to  reduce private indigent defense under 18B of the County Law. From the New York Law Journal :

The panel attorneys were to be called on when primary providers, such as the Legal Aid Society of New York City, were faced with a conflict most often posed by multiple defendants being charged in the same crime. In those instances, Legal Aid lawyers would represent one of the defendants and the others would be assigned to other providers or to assigned private counsel.

The Bloomberg administration’s 2008 plan called for more of the “conflict representation” cases to be handled by institutional providers under competitively bid contracts. The administration argued before state courts that its plan would still retain some participation by the bar associations, but that it could save significant amounts of money.

Oral argument on two cases that held potentially huge significance for a fundamental change in search and seizure law were held before the Supreme Court on October 30th.  Via Radley Balko at HuffPo :

In the first case, Florida v. Jardines, the court will decide whether a drug dog’s sniff outside the door of a home constitutes a “search” under the Fourth Amendment, which police would need to justify by first establishing probable cause. If the justices decide it doesn’t, police could well begin using drug dogs to conduct mass “sniff sweeps” of apartment complexes, public housing, and other densely populated areas.

In the second case, Florida v. Harris, the Court will consider a Florida Supreme Court decision that established some rules for judges to determine whether a particular drug dog should be relied upon as grounds for a search. Here, the justices could either uphold a state supreme court’s desire to set some minimum proficiency standards, or rule that the police and prosecutors aren’t obligated to keep track of a drug dog’s performance record at all.

That assumption was wrong at the time, and it has been repeatedly proven wrong since. For example, in a survey of drug dogs used by police departments in suburban Chicago published last year, the Chicago Tribune found that when a police dog alerted to the presence of drugs during a traffic stop, a subsequent search turned up narcotics just 44 percent of the time. In stops involving Hispanic drivers, the dogs’ success rate dropped to 27 percent.

The  Lisa Lit study at Cal-Davis is far more damning. Dog sniffs are essentially carte-blanche for dog handlers to pick targets for searches, completely circumventing what most would consider actual cause, with the blessing of the Supremes in reliance on the magical abilities of canines.  As Radley notes, it’s not that dogs aren’t possessed of wondrous olfactory abilities, but that they are more inclined to do as their handlers want. 

Radley attributes this blindness on the bench to its lack of anyone who earned an honest living as a criminal defense lawyer.  While he may be right, insofar as there is no one inclined to mention the unmentionable at argument or even make the others upset with her by throwing the dog sniff myth into play, I suspect that the justices are bright enough to be aware of the problems with dog hits. 

The tacit decision evidenced by the total absence of concern for a means of establishing probable cause that is less valid than a coin toss (question: why not just let cops do rock, paper, scissors to establish probable cause? Crazy, sure, but less so than dog sniffs) is that law enforcement and the courts have incorporated the dog sniff myth so deeply into their infrastructure and jurisprudence that it would wreak havoc to admit it is all a big ol’ sham now, and hold that the magical eight ball dog alerts are no longer an adequate basis, without so much as a valid showing of training (as determined by a non-law enforcement certifying body using non-law enforcement derived metrics) and efficacy (such as, well, a mere 50% success rate).

This would spell the end of dogs, and that would spell the death of highway shoulder searches, and that would mean that police would be required to fall back on actual, articulable, specific cause. 

To be fair, if the dogs are manipulated by their handlers to alert whenever they feel the desire to conduct a search, there is no reason to believe that police would be less inclined to fudge the details of cause coming from their own observations, whether their old friend, furtive gestures or anxiety, or aggressive stance, or perhaps some newly developed combination of words that gives rise to a vague image of justification without any possibility of disputing the cop’s word.

Still, at least we can cross-examine a cop.  When the only question to be asked is whether the doggy wagged his tail, that detail being sufficient to terminate all rights under the Fourth Amendment, without regard to the fact that the doggy wags his tail constantly, at anything, whenever his beloved handler cues him to do so, even unconsciously, we’re just pretending.

Oral argument in two cases before the Supreme Court was had in earnest, but the argument was about the details on the fringes of the Ministry of Magic.  The dogs will be with us for a long time to come, and they control whether eyes and hands get to touch our lives.

About 4:30 p.m. on election day, November 6th, the lights came back on at Simple Justice World Headquarters.  The ambient room temperature went from a nippy 37º to a balmy 54º in just a few hours, after which we peeled off layers of warm clothing.  The television glowed and we stayed up late enough to watch Karl Rove embarrass himself. 

I didn’t learn that the president was re-elected until this morning.  As far as I can tell, there is a direct correlation between this and my power returning. He owes me. 

More importantly, I hear that Mark Bennett received more than one million 1,326,526 votes for seat seven on the Texas Court of Criminal Appeals. Even substracting my votes, that’s over 479 thousand an awful lot of votes, and that’s huge. Congratulations, brother. Killer Keller was re-elected to the all-Republican court. Sorry, Texas, but you get what you deserve.

It felt nearly miraculous to feel normal.  We checked on our friends to make sure they have power and heat (they did), and started thinking about what was needed for the clean-up, whether FEMA disaster relief would be available to us (don’t feel badly; we laughed too) or whether insurance or any other source would cover damage or loss.  It isn’t likely.

Already, the vultures are coming around looking to do post-Sandy repairs and clean-up at a mere triple the price of their services before the storm, when they were begging for work. While many have proven themselves to be good neighbors and friends during the storm, there are some nice folks on Long Island who just can’t resist the urge to take advantage of others.  No surprise there.

There was no ability to do work over the past 8 days, and so there is substantial catch-up to be done. A nor’easter is supposed to hit tonight, and I’m scheduled to fly out of town on Thursday. We’ll see whether that happens.

Thank you for your kind words and wishes during the past week. It certainly brought warmth to an otherwise very cold existence.  Now that the heat is on, I’m determined to return to as much normalcy as the situation permits, and plan to get back to writing about things that matter.  But please know how much I appreciate the support.