Public perception aside, one of the most important traits of a judge is what we delightfully refer to as “judicial temperament.”  The ABA Standing Committee on the Federal Judiciacy  defines judicial temperament as

compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias, and commitment to equal justice under the law.

Nowhere in there does it say well-motivated righteous indignation as reflected by judicial anger.  But then, Vanderbilt lawprof Terry Maroney argues that it is  time for a change.  The law review article begins with very short sentence: Judges get angry.

There is no way to avoid the reality that judges are people, and as such suffer from the same frailties as the rest of us. Bias. Anger. Boredom. The aspiration of including judicial temperament as a criterion for the selection of judges is that they will suffer fewer frailties than most.  We may not be able to pick judges who are devoid of the ignoble traits of humanity, but we can try, right?

Legal culture, however, is of two minds about judicial anger. On the one hand, anger could be called the quintessentially judicial emotion. Humans (including judges) feel anger when we perceive that a rational agent has committed an unwarranted wrongdoing; that experience of anger generates a desire to affix blame and assign punishment, and facilitates actions necessary to carry out that desire. This coupling of judgment and action rather precisely describes one core function of the judge. Indeed, we may expect judges to act as society’s anger surrogates, so as to avoid vigilante action. We often rely on them to assign blame, frequently task them with assigning consequences, and always hope they will be motivated to perform these functions.

On the other hand, anger seems to pose a danger to the neutral, careful decisionmaking we also expect of judges. Anger is powerful, and its effects sometimes regrettable; consider the actions of a Florida judge who, “red faced and yelling,” left the bench to “physically intimidate” an assistant state attorney. Anger is the prototype for the traditional view of emotion—a view strongly reflected in legal theory—as a savage force that unseats rationality, distorts judgment, manifests in impulsive aggression, and imperils social bonds. Indeed, fear of such irrationality led Judge Richard A. Posner to declare that we ought to “beware . . . the angry judge!”

It’s unclear to me whose legal culture Maroney is referring to, but it’s surely not mine.  There is no aspect of “legal culture,” if that’s defined as what those of us engaged in the law desire, that seeks judges to be society’s avenging angels, the embodiment of blind rage.  While we ask judges to “affix blame and assign punishment,” we do so based on applying the law and achieving its legitimate goals.  What we do not do is ask judges to vent our collective spleen against those we despise.

Sure, the public always enjoys judicial rage, provided it meets with their approval.  If the public hates someone, they applaud the judge who hates them too and lets their hatred come across loud and clear. This judge becomes a public darling for expressing what people feel; it’s feel-good law for the benefit of those who enjoy watching those they despise “get what’s coming to them.”

But this flies in the face of what judicial temperament is all about.  And Maroney says that’s not only okay, and can’t be helped, but should be tapped for righteous causes.

Righteous judicial anger rests on accurate premises; is relevant; and reflects worthy beliefs and values.

Where we have traditionally sought to rise above personal anger, Maroney exalts it, provided it comports with “worthy beliefs and values,” which by definition are those that we agree with.

Judicial anger at criminal sentencing often can be justified as well, and for a similar set of reasons. By the time of sentencing, blameworthy conduct already has been shown. Assuming, as the judge must, the accuracy of that finding, the judge is entitled to respond emotionally to any harm the defendant has caused. Expressing anger vividly demonstrates to victims and their survivors that they are within the judge’s zone of care. It communicates, in a way that other demonstrations could not, that they are members of the valued community.

It also demonstrates judicial respect for the defendant. As one feels anger only where a human agent has chosen to inflict an unwarranted harm, showing anger reveals the judge’s assessment that the defendant is a fellow human possessed of moral agency. By using his authoritative position to send moral messages to the wrongdoer, the judge ideally frees others in society from feeling a need to do so themselves, including through vigilante action.

Rarely has anyone suggested that the expression of a judge’s personal outrage “demonstrates judicial respect for the defendant.” Having stood beside more than one defendant being sentenced and subjected to judicial outrage, no one ever told me afterward how much he appreciated the judge’s moralistic rant because it reflected respect for his humanity.  In fact, it’s never been well-received in my experience.

There is no disputing Maroney’s premise that judges are people, and as people, suffer from an emotional bias in the performance of their role.  When they take off their robes, they no doubt have feelings just like the rest of us.

But when they put on their robe, they assume the responsibility of their position. They are no longer entitled to let their personal feelings intrude on the authority they have over others.  It’s not that it doesn’t happen, but that the goal is to prevent it from happening.  Maroney argues the opposite, that since it happens, we should embrace anger and encourage it to be used for socially desirable ends, which means the ends that we agree with.

The tyranny of the majority is always a popular thing, as it makes the villagers storming the courthouse with their torches and pitchforks feel validated.  The last thing we need is to relieve judges from their obligation to maintain judicial temperament and play to the angry mob.  Will the mob agree with the judge’s moral outrage and applaud her righteous indignation?  Probably.  This is precisely what we fight against.

H/T Doug Berman

As noted in the New York Law Journal, the Court of Appeals, by Judge Robert Smith, granted leave in People v. Thomas, a case in which the defendant was interrogated at length and ultimately confessed to depraved indifference murder of his baby. To obtain that confession, the police lied.

The case involves a defendant who was interrogated for more than nine hours, repeatedly lied to by police and eventually made an incriminating statement that led to his conviction for the murder of his baby. Thomas told police he threw the infant on a bed several times and inadvertently banged the baby’s head on a crib. He was convicted of depraved indifference murder and sentenced to 25 years to life in state prison.

On appeal, Thomas raises several issues, including an allegation that police induced him to make a false confession by telling him that his child was still alive and that doctors needed to know what had happened so they could save his life. The case is unusual in that police videotaped the entire interrogation, so the jurors and the panel that upheld the conviction were able to witness exactly what happened, a fact Smith seemed to find intriguing.

“It is not every day you get to review these sorts of things with a videotape,” Smith said.

And indeed, the video matters, as it will allow the court to see for itself how lies can be used to accomplish the only goal of interrogation. 

The grant of leave comes on the heels of a Second Department decision in   People v. Aveni,a case in which the police told the defendant his girlfriend would die unless he told them what he had done to her, and that he would face homicide charges if he let that happen.  Of course, the girlfriend was already dead from the heroin he injected into her.

The concern raised by Judge Smith in Thomas was primarily the inducement of false confessions,

Much of the argument over the leave application centered on whether the trial judge, Rensselaer County Judge Andrew Ceresia, properly refused to admit the testimony of Richard Ofshe, a social psychologist and professor emeritus at the University of California at Berkeley. Ofshe, who has testified in hundreds of cases around the country and a handful in New York, was expected to testify how psychological coercion can lead someone to falsely confess to a crime.

Ceresia, after a Frye hearing (see Frye v. United States, 293 F. 1013 [1923]), held that Ofshe’s theories have not gained “general acceptance in the scientific community,” and refused to allow him to testify for the defense.

Egan told Smith that Ceresia’s decision was discretionary, prompting Smith to ask, “How can science be discretionary?” and said it seems “crazy that the highest court in the state” should be precluded from reviewing the determination.

“There are false confessions,” Smith said. “They are more frequent that you would think. But there is not much science in why they happen… Here, it does not seem ridiculous that maybe this guy was induced to produce a false confession.”

Ofshe has led the scholarly fight against false confessions, and it hasn’t been an easy one. Certainly, no one wants a defendant to falsely confess and be convicted, because no one can argue that this serves any legitimate end. 

The solution is to contend that no confession is false, completely vitiating the problem.  And for most jurors, this works fine, since no one who hasn’t sat in a chair in a small, windowless room for 9 hours can conceive of falsely admitting to murder. 

But Judge Smith, thoughtfully, states that there is “little difference” between the two cases, one about the use of lies to overcome voluntariness and the other about the use of lies to extract a false confession, And this is crucial.  Judicial and public sympathy flows to the person who may be perceived as falsely confessing, while there is little concern about the person whose will is overcome, whose words come because of tricks designed to tease them, coerce them, compel them. 

Theoretically, a waiver of the 5th Amendment’s right to remain silent must be knowing, intelligent and voluntary.  I trust that law students are still taught about the  Christian Burial Speech of Brewer v. Williams, where the defendant’s assertion of his right to counsel was overcome by an appeal to religious conscience.  Yet, use of techniques artfully designed to overcome a knowing, intelligent and voluntary decision by a defendant, whether the Reid Technique or manipulative lies, has not merely been deemed lawful and acceptable, but necessary in obtaining the evidence needed to convict.

But for the fear of false confessions, the revelation of DNA that innocents are convicted upon them, and the work of academics like Ofshe, the likelihood of our ever getting off the path of police using lies and manipulation to obtain confessions was slim.  And as the argument before Judge Smith demonstrated, the prosecution and police remain firm in their belief that this is all voodoo nonsense, that this tool to secure convictions is critical if we’re to convict the bad guys.  Whether they admit to the existence of false confessions, they have no doubt that the benefits of obtaining confessions from the guilty by overcoming their will and constitutional rights is worth it.

Are these good lies or bad lies? Is it good that lying produces confessions from heinous criminals or bad that lying produces false confessions from people who can’t withstand the psychological pressure?  As Judge Smith notes, the distinction cannot lie with the outcome, since there is no way to distinguish the innocent who falsely confessed from the guilty at the time of the interrogation.  As the court has a videotape of the Thomas confession, it won’t have to rely on the cops’ characterization of their interrogation, which some might think to be a somewhat unreliable description of their own possible wrongdoing.

Leave in the Thomas case sets up a potentially huge issue, an acknowledgement that while lying by police may be enormously effective, it does so by undermining constitutional rights in the process.  The same effectiveness that provides confessions by the guilty provides confessions by the innocent, and without constitutional rights to protect both, the latter will suffer along with the former. This cannot be tolerated by our system.

There is one additional quote from Judge Smith that bears noting.

At Friday’s in-chambers argument, after considerable discussion on the issue, [defendant’s lawyer Jerome] Frost asked Smith: “Your honor, can you tell me what a depraved indifference murder is?”

Smith replied: “No, but I can cite some cases.”

Never have so few words damned the criminal justice system so well.  This is criminal law.

H/T Kathleen Casey

And even when the defendant is Gurstel Chargo, the collections firm being sued by disabled war vet, Michael Collier. Even when accuracy is obscured in a  /files/66432-58232/(201210_18)Doc7CollierAmendedComplaint_pdf.pdf”>Amended Complaint was filed in the case, and omitted the allegations from the  original complaint that the lawyer appearing for Gurstel Chargo in court, Edward O’Brien, made inappropriate statements to Collier in the parking lot.  Apparently, there was a misunderstanding about what was said, and the naming and shaming was similarly inappropriate as O’Brien did nothing wrong. 

For the sake of accuracy, the portion of the original post, including a photograph, suggesting otherwise has been deleted.  Just as bad lawyering deserves shame, it would be wrong to leave it online when it turns out not to be true.  And, although Parker didn’t ask for it, I apologize to Edward O’Brien for the shaming, even though it was based on the allegations in the complaint at the time, as he didn’t deserve it.

Moreover, my post quoted from Mark Bennett’s post, which has since been changed to characterize the garnished monies as “ungarnishable,” and since my quote is via Mark, I defer to his choice of language and make the same change.

Parker’s letter raises one additional point worthy of some additional commentary:

Mr. O’Brien acted professionally in all of his dealings with Mr. Collier and in the handling of this case. He did nothing more in this case than appear in court and agree, upon review of information that he had been provided for the first time that day, to characterize the garnished funds as exempt. Your blatantly false post has now immeasurably tarnished his professional reputation and caused him to receive explicit threats to his personal safety and security.

Similarly, your perpetuation of blatant falsehoods against Gurstel Chargo regarding the garnishment (which you incorrectly characterize as illegal) and the alleged phone call has resulted in threats being received against law firm staff.

This is where Parker goes a few steps over the line.  Notwithstanding the dubious claim of explicit threats, if Gurstel Chargo doesn’t want people to be angry with the firm and its staff, then maybe it ought to worry more about its conduct than about what anyone in the blawgosphere has to say about it.  As Bennett put it:

I doubt that I have that sort of influence; I hope that I don’t. I suspect that it would be more accurate to say that treating a disabled veteran badly has resulted in threats against law firm staff. Which is itself unfortunate, but not attributable to my little blog.

In the aftermath of my post on the ethics of lawyers deliberately concealing their law school graduation and bar admission dates, many of those engaged in concealment responded by arguing “what about lawyers who include their ‘wins’ on their websites, but not their losses?”

Aside from the obvious, that the analogy is irreparably flawed as wins/losses bears no similarity to the intentional omission of something as straightforward and factual as a date, the attempt to defend concealment by pointing to another problem hardly makes the former acceptable.  The fact that Joe is ugly doesn’t mean Sam is good looking, but illogical argument is hardly surprising from people inclined to conceal for the sake of marketing.

That said, the wins/losses point is independently worthy of discussion, and the impetus for my taking it on comes from some comments left at a post by  Ken at Popehat the other day.  Responding to issues surrounding spammy lawyer marketing websites, some  non-lawyers remarked that they would really appreciate it if lawyers would include their batting average to facilitate the legal retention decision.

The only thing I can really think of is to publish information on how people can find better lawyers, and encourage people in that line. Do lawyers keep records of wins and losses?

And

My ideal site would list, not just name, contact info, and “in good standing” (or not) but how long a lawyer has been practicing (in all states, not just the one whose bar association site this is), number and kinds of cases he’s tried, and win/loss record.

It’s understandable that non-lawyers would like to know about a lawyer’s batting average.  Just as we argue about why propensity evidence is simultaneously irrelevant, yet so terribly prejudicial, it’s completely understandable that people want something, anything, to hang their choice on.

And indeed, it’s a very effective marketing tool for lawyers to promote their glorious victories, even if they are required to include the caveat, in very small type elsewhere on the page, that past results are not a guarantee of future results. 

I recall a New York lawyer who included in his personal bio that he had won thousands of cases even before he was admitted to practice law. You can’t make this stuff up. What he neglected to mention was that his “wins” were pleas at arraignment when he was in the district attorney’s office, doing rookie stand-up work before he was admitted.  Were those the “wins” you had in mind?

One problem with promoting “wins” is definitional.  A full acquittal after trial is a “win,” no questions asked. But what of a conviction on one count in a 37 count indictment?  Win, right? What if it was the top count? Not so much of a win, then. 

The more important problem, and the one were “wins” become grossly misleading, is that not all cases are alike, and not all lawyers handle the same level of cases. There are lawyers who do a ton of low-level misdemeanor street cases, even a dozen marijuana pops a night, and they mostly plead out to an infraction. No effort required. But are these wins?  I guess, but hardly informative wins unless you happen to have the same case.

Then there are lawyers who handle major crimes like murders, or federal conspiracy cases with huge numbers of defendants and years of wiretaps. Their wins look entirely different. So do their losses. So does the fact that their clients make extremely difficult choices about whether they want to roll the dice at trial, and the lawyers must abide their clients’ choices. Win or loss? It’s not easy to say.

While potential clients want to know a lawyer’s batting average, its meaning is almost impossible for the client to discern.  No two cases are alike. No two clients are the same. The same outcome has entirely different meaning based on the details. The devil is always in the details. So the promotion of a “win” may just as well be deceptive spin as anything else. Yet it lures the potential clients in.

But for those inclined to promote their “wins,” then the same ethical concern arises that applies to concealment of dates as applies to concealment of “losses.” Making the choice of including the good stuff, then full and accurate disclosure compels you to include the bad as well. 

The problem is no lawyer wants to include on his website that he tried a case and lost. It just doesn’t bring in business, and that’s the whole point of marketing.  Some will argue that everyone knows that a lawyer doesn’t win every case, and so inclusion of losses isn’t necessary as a juxtaposition to wins.  What they are trying to do is let potential clients know they’ve got experience and have had successes, something many clients believe is impossible in our legal system. 

The argument has merit.  Aside from Gerry Spence, I’ve never heard of a lawyer who claims to have won every case, and I’m unaware of any client assuming that to be the case.  Yet, the recitation of glorious victories is so inherently misleading and flawed an indicator of a lawyer’s competence, and so powerful a marketing tool as to be likely to overcome the deliberative discretion of potential clients, that the wrong of half-truth promotion outweighs the assumption that no client could possibly be fooled.

While promoting “wins” is itself fraught with ethical problems, doing so without the factual counterbalance of losses renders the marketing scheme ethically disturbing. If you don’t want to admit that you lose, then don’t promote that you win. It’s not that hard to figure out.

And by the way, some of the best legal work I’ve ever done, and of which I am most proud, came in cases I lost.  That’s how it happens sometimes, that despite Herculean efforts and brilliant legal representation, we lose. There’s no way potential clients will ever be capable of factoring that into the batting average.






 

Newsday reports that only 44 out of approximately 1500 retired Long Island Rail Road employees “were accepted” into the United States Attorney’s amnesty program, requiring them to give up their disability benefits in exchange for not being prosecuted for fraudulent disability claims.

Only 44 Long Island Rail Road retirees have been accepted into an amnesty program offered by Manhattan federal prosecutors who claim that hundreds face the prospect of criminal charges for filing fraudulent disability claims.

The number — well short of the 1,500 that prosecutors believe may have submitted phony claims to the federal Railroad Retirement Board in a decade long scheme that allegedly could have cost the government $1 billion — was disclosed in a court filing Tuesday night.

This bit of information was offered by the government to show  that its threatening letter sent blindly to retirees wasn’t coercive.

But prosecutors, in their response Tuesday night, said the paltry number of participants shows the incentives are far from irresistible or intimidating.

“Demonstrating the absence of intimidation is the empirical fact that, to date, some 44 individuals have been accepted into the program,” the government wrote. “While this level of participation in the program will result in substantial savings to the RRB, it falls well short of the likely number of participants in the fraud.”

“Clearly,” prosecutors added, “the vast majority of the 1,500 . . . felt no threat or intimidation to bend to the allegedly ‘coercive’ force of the program.”

“Clearly” may be a bit of an overstatement.  “Overkill” may be a more accurate characterization.

The empirical fact is that the Southern District’s gambit didn’t get the result they expected, which was almost certainly more than 44 retirees. While I know no more about who took the bait than they do, my slightly educated guess is that they netted the weakest, most easily scared and, potentially, the most disabled, who were least inclined to risk any possibility of having to fight federal indictment or suffer potential incarceration. 

Sure, there may be some fraudsters in the mix, but the letter was designed to prey on the weak rather than the bad.  People engaged in fraud tend to be tougher than frightened, disabled workers. They aren’t as easy to bluff.

Missing from the government’s facile “empirical” analysis is the fact that the letter was so threatening, so coercive, so intimidating, that it sent retirees to lawyers who were less inclined to shake in their boots and counsel the comfort of giving up a disability pension that the law, whether you like the law or not, allows.  As one might expect, many retirees spoke with one another, spread the word, considered legal advice, and came to the realization that the government was beating its chest, but that they did nothing wrong.

As intimidating and coercive as the letter was, it gave rise to a countervailing force, a backlash, that bolstered the LIRR retirees decision to stand firm if they had done nothing wrong.  While innocence may not mean they won’t be subject to federal indictment and prosecution, particularly when the government’s attack is based only on the Railroad Retirement Board’s decision rather than any wrong done by any individual worker, and as every lawyer knows only too well, you can beat the rap but you can’t beat the ride, they decided not to collapse in the face of government might.

This isn’t to say that the currently indicted workers didn’t do wrong (or did, for that matter).  Certainly, the potential for workers to fraudulently claim disability existed, and anyone who did ought to be held accountable for it.  And there are likely more, hidden among the 1500, who deserve to be in the dock. And there may well be a few among the 44 who took the amnesty offer, along with the frightened and hurting.

And that’s the point: There may be individuals who have engaged in fraud, and any determination of wrongdoing must be based on individualized culpability, not a blanket letter sent to 1500 retirees.  Should the government determine that there is evidence to support the allegation that any individual has committed a crime, then prosecute that person.  But don’t tar a groups with a mass smear.

Most of all, had it not been for “overkill” in the government’s heavy-handed attempt to intimidate retirees, so many of the recipients wouldn’t have sought legal counsel.  And maybe even read a legal blog that suggested the wrongfulness of the government’s approach.

So no, the government’s assertion that its letter wasn’t intimidating isn’t well-founded. In fact, it’s sheer nonsense.  On the other hand, it was not irresistible, but only because there are lawyers out there who don’t quiver at the government’s might. 

Everybody loves empirical evidence, but what it means doesn’t necessarily comport with the government’s spin.  The letter was wrong. Terribly wrong. The letter was intimidating and coercive, and it netted the government 44 retirees who gave up their disability rather than face the ride.  The government should consider itself lucky that it doesn’t have to prove that any of them did anything wrong.

When New York Court of Appeals Chief Judge Jonathan Lippman decided that it was time to assert his rule-making authority by instituting a  50 hour pro bono requirement of applicants to admission to practice, he opened a door.  Jeffrey Kurzon has decided to go through that door.

Via Above the Law, Kurzon has  sent Judge Lippman a letter asking that he use his authority as chief judge to make a difference.

In the past few years, there has been a wide public debate about the number of lawyers practicing law throughout the country. Our concern is not with the quality of education, but rather the quantity of lawyers being produced each year who graduate with hundreds of thousands of dollars of debt at the expense of tax payers – and then have no way to pay such nonbankruptcy dischargeable debt back by practicing as lawyers.

While it is true that legal access for the poor is a concern, what is troubling is that recent law school graduates are graduating without jobs and with hundreds of thousands of dollars of debt. And so enticed by the dream of becoming a lawyer, what happens is that they become worse than poor; they become enslaved to a lifetime of debt.

Kurzon points to Thomas M. Cooley Law School as the poster boy of all that’s gone wrong under the control of the American Bar Association.

And thus the question is asked: when is enough enough?

Would the American Medical Association permit half of its recent graduates to graduate with no job or no way to payoff their loans?

Essentially, there is a systemic failure in the legal academy and we write this letter to ask that the Court establish a special task force to review the authority it has delegated to the ABA and make specific recommendations and force their enactment on the ABA on how to improve the legal education system in our country.

Think of the tag line, “Think Globally. Act Locally.”  We’ve grown inured to the control of the ABA, their requirements for accreditation and their choice as to how many law schools should be out there, raking in tuition, providing homes for scholars, cranking out young men and women who expect to practice law, or at least have a secure financial future as a lawyer.  Brian Tamanaha, in his book,  Failing Law Schools, offered the backstory of how the ABA came into power over law schools.  There was nothing magical about it.

That a problem exists isn’t in dispute, at least not among anyone to be taken seriously and who doesn’t have a huge paycheck in the race.  But while there are well-meaning folks trying to find a global solution, we can’t even get the stakeholders in the same room, no less engaged in any kind of meaningful discussion. 

Some, like the lawprofs, are holding symposiums amongst themselves. Others, like practitioners, are too busy scratching for their own business to be bothered.  And still others, like me, aren’t welcome in the talks because we neither represent Biglaw nor the Legal Academy, and those are the only players who matter.

By sending this letter to Judge Lippman, Jeffrey Kurzon has taken a new direction that has a great deal of merit.  If we can’t come up with a global solution, and the ABA, an insular community of lawyers who are deeply concerned with their own importance as Leaders of the Bar and protectors of the status quo, won’t deal with it during the timeframe of a life in being, then what’s left for the tens of thousand (yes, tens of thousands) of new lawyers being cranked out of law school with nowhere to go?  

Like Kurzon, I have no doubt that part of the solution lies in part with the closure of law schools.  Despite the progressive dream that more lawyers means lower cost legal services and greater availability to the poor and working classes, the numbers do not crunch.  They never had. They never will. It’s a flawed dream, and no theoretical band-aids are going to change it.

Lawyers need to earn enough money to pay for law school, to cover their lost opportunity costs, and to feed their families. Lawyers, no matter how deeply they feel the responsibility of their position, still need to eat, put a roof over their heads and occasionally drive a car. They can’t do this on the adoring appreciation of their clients alone.  And most have no interest in trying.

So if the ABA refuses to fix the problem they created, and continue to perpetuate, the big fix will remain out of reach.  Why, then, not shoot for the smaller fix? 

As Judge Lippman has taken the lead with the pro bono requirement for admission to practice, so too can he take the lead in putting an end to the ABA’s tyranny. He has the rule-making authority for admission, and is under no obligation to continue to recognize the ABA’s acceditation of law schools as being anything more than one voluntary association’s view of lawyer-life.  They won’t deal with the mess? Screw ’em. They aren’t the center of the legal universe, even though they think they are and we’ve let them be. 

Each year, more law students flip their tassels. Put aside their worthiness to be lawyers, as some will be great ones and others will suck, and we can’t tell who is who yet.  What we can tell is that many are walking away from law school to life as a slave to debt and a future of misery. We know this, and yet we allow it to happen.  Judge Lippman doesn’t have to let this happen in New York on his watch.

Jeffrey Kurzon is right, and if Judge Lippman forms a task force, I will volunteer to be on it.  I only hope it reports back before another  ten fifty thousand souls are buried in misery, but I will do my best to help Kurzon, and Judge Lippman, to see that doesn’t happen.




 

Texans are very possessive of their Castle, even if it means they have to shoot some teenage kid running away across a neighbor’s lawn in the back.  After all, if he didn’t want to get shot, he shouldn’t be on someone else’s property, they say. Not as easy for someone living in the Bronx, where you can’t get home without crossing someone else’s property.

For more than 20 years, the New York Police Department has maintained its “Clean Halls” program, a leftover of the crack days.  Back then, drug dealers would take over the lobby of an apartment house to use as their “spot,” or keep an apartment as a stash house.  Bronx apartment houses were particularly well suited for drug dealing, as they had an outer door, a vestibule and an inner door leading to a lobby, with two staircases and a nonfunctional elevator. It offered great security for drug dealers, who were competing for control of their block, and easy means of escape.  It was a blight that landlords couldn’t stop, and make life for other tenants horrible.

So the NYPD came up with a plan. Landlords signed affidavits that allowed the police free reign inside their buildings, and waived the rights of all who entered “unlawfully” to be stopped, questioned and searched. There was a small sign placed outside the building, but the same sign was essentially on every building.  There was no way to know who was entering unlawfully from who was there as a tenant or lawful guest without first stopping and demanding to know their business in the building.

The cops would lay in wait behind the inner door. When someone entered the vestibule, they would open the inner door and grab them.  There was no escape for the visitor or tenant, who was then questioned, if they were lucky, or thrown against the wall if they were not. They were asked who they were there to see, but that’s a tricky question in a borough where Spanish is more likely spoken than English, because the question often posed asked for a very different response according to how it was phrased.  In Spanish, it calls for a description (“Who are you here to see? My friend”), while in English, it called for a name.

The person in custody was then searched for fun and, if there was a bit of marijuana or a gun, arrested. If nothing, but the person gave the cops a hard time, they were arrested for the trespass. It would resolve with an ACD at arraignment, or at worst a disorderly conduct with time served, but the person would learn his lesson not to screw with cops. And if the person resisted, an occasional shot rang out from a service revolver.  And that was how they kept the natives under control.

More than twenty years later, it’s still happening.  While the arguable purpose of stopping the plague of crack has long been forgotten, it’s programs have since become a part of life in the Bronx. Tenants in Bronx apartment houses can’t get to their own Castle without crossing the no-man’s-land between the vestibule door and their apartment door.

On the street, they have the limited protection of other people’s eyes, maybe even someone’s video. Inside their building, there is no one to see what happens. It’s just them and two cops, and there is no way to reach their Castle without running this gauntlet. 

It never made any sense to me that one party, the landlord, could waive another party’s constitutional rights, and I argued this point many time to no avail.  While the landlord could prohibit entry into his building for those without legitimate reason to be there, he could not authorize police to seize and search another human being.  But crack times were bad times, and judges ignored my arguments.  Granted, my clients weren’t always the finest of people based on what came out of their pockets, so they didn’t enjoy much sympathy.

The Bronx District Attorney has decided he’s  had enough busts of tenants and legitimate guests under the “Clean Halls” program, where the same routine allegations appear in every complaint.  It’s another version of  Irving Younger’s observations about “dropsy” cases, where it had become so common that no one bothered to question them. Recite the mantra of trespass and it was close enough.  There a trial happening now in the Southern District of New York over the practice, and the  New York Times editorial says it’s time for it to stop.

But a hearing under way in Federal District Court in Manhattan is featuring an open and fiery dispute between the Police Department and an assistant district attorney from the Bronx, who has testified that her office began to have misgivings about the legality of some trespassing arrests as far back as five years ago.

The federal lawsuit, Ligon v. City of New York, was brought on behalf of people who say they were illegally stopped, given tickets or arrested on trespassing charges in apartment buildings, some in buildings where they lived. The suit focuses on the city’s two-decade-old “Clean Halls” program, under which police officers patrol private buildings with the permission of landlords.

###

The case could potentially go into next year. But the prosecutor’s testimony is strong evidence of the program’s problems and the Police Department’s failure to protect people’s constitutional rights.

‘* * * Policemen see themselves as fighting a twofront war

—against criminals in the street and against ‘liberal’ rules of law in court. All’s fair in this war, including the use of perjury to subvert ‘liberal’ rules of law that might free those who ‘ought’ to be jailed * * * It is a peculiarity of our legal system that the police have unique opportunities (and unique temptations) to give false testimony. When the Supreme Court lays down a rule to govern the conduct of the police, the rule does not enforce itself. Some further proceeding * * * is almost always necessary to determine what actually happened. In Mapp v. Ohio, for example, the Supreme Court laid down the rule that evidence obtained by the police through a n unreasonable search and seizure may not be used in a state criminal prosecution. But before applying the rule to any particular case, a hearing must be held to establish the facts. Then the judge decides whether those facts constitute an unreasonable search and seizure. * * * The difficulty arises when one stands back from the particular case and looks at a series of cases. It then becomes apparent that policemen are committing perjury at least in some of them, and perhaps in nearly all of them. Narcotics prosecutions in New York City can be so viewed.

Before  Mapp, the policeman typically testified that he stopped the defendant for little or no reason, searched him, and found narcotics on his person.  This had the ring of truth.  It was an illegal search (not based upon ‘probable cause’), but the evidence was admissible because Mapp had not yet been decided.  Since it made no difference, the policeman testified truthfully. After the decision in Mapp, it made a great deal of difference. For the first few months, New York policemen continued to tell the truth about the circumstances of their searches, with the result that evidence was suppressed.  Then the police made the great  discovery that if the defendant drops the narcotics on the ground, after which the policeman  arrests him, the search is reasonable and the evidence is admissible. Spend a few hours in the New York City Criminal Court nowadays, and you will hear case after case in which a policeman testifies that the defendant dropped the narcotics on the ground, whereupon the policeman arrested him.  Usually the very language of the testimony is  identical from the case to another. This is now known among defense lawyers and prosecutors as ‘dropsy’ testimony.  The judge has no reason to disbelieve it in any particular case, and of course the judge must decide each case on its own evidence, without regard to the testimony in other cases. Surely, though, not in every case was the defendant unlucky enough to drop his narcotics at the feet of a policeman.  It follows that at least in some of these cases the police are lying.

People v. McMurty, 314 N.Y.S.2d 194, 195-96 (N.Y. Crim. Ct.1970), (Younger, J.).

The more things change, the more they stay the same.  And yet we never heed George Santayana’s admonition that those who don’t remember the past are condemned to repeat it. And repeat it we do.

A series of collisions on the Long Island Expressway last week ended when a police officer, stopped to help the last motorist whose car was struck by an allegedly drunk driver, was hit by yet another car.  Nassau Police Officer Joseph Olivieri was killed.

While the driver of the car that struck and killed P.O. Olivieri was sober, the driver who caused the carnage, James Ryan, was arrested for drunk driving and the officer’s death.  Via Newsday :

Now Olivieri is dead and Ryan has been charged with driving while intoxicated and vehicular manslaughter.

Ryan’s car didn’t hit the officer, but authorities say his behavior ultimately led to Oliveri’s death. The courts can sort out whether vehicular manslaughter is the right charge, but society still must struggle with how to stop this insanity.

There is no question that the needless death of a human being is a tragedy, whether cop or not.  But rather than travel down the usual path of calling for people to exercise greater discretion, to make smarter choices and not drink and drive, this Newsday editorial goes in a very different direction.

We have the technology to install alcohol-interlock devices in every vehicle to prevent anyone who is drunk from driving. But if we believe putting alcohol-interlock devices in every car would go too far, then we must go further ourselves. Innocents killed by drunken driving have far more right to their lives than motorists have to drive without proving their sobriety.

Every car? Every person? Everyone?  The rationale sounds vaguely familiar, that “innocents” (and indeed, no one can blame the victim of a drunk driver for being the victim) have more right to life than motorists have to drive without blowing into an alcohol-interlock device.  But is the issue who has greater rights, or whether the right to arrive alive leads to the inexorable conclusion that everyone else’s rights must suffer?

On its surface, the editorial sets up a problematic argument, since no one takes the position that the lives of innocent travelers aren’t worthy of protection. Indeed, everyone on the road wants to make it home alive, and can well appreciate the notion of not being a drunk driver’s next victim. 

But it doesn’t follow that the answer to one problem is to place the burden on everyone else, all the people who bear no responsibility for the conduct of those who are engaged in the wrong.  By that line of reasoning, it would make as much sense to incarcerate us all for the drunk driving death, or perhaps do away with cars entirely.  Both would deter any further drunk driving deaths, and as long as we’re divorcing responsibility from the burden, isn’t that all that matters?

The editorial reveals its motives when it asks, “society still must struggle with how to stop this insanity.”  Every tragedy does not amount to “this insanity,” despite the current trend of reacting to each in melodramatic fashion and demanding a law to eliminate any possibility of harm to anyone in the future.  How long before “Oliveri’s Law” becomes the battle cry?

This isn’t to diminish or trivialize the harm caused by drunk driving, though anyone who isn’t part of stopping the insanity is accused of being in favor of people being killed by drunks, or at least indifferent to the death of innocents on the road.  This is the wedge that is used to shut down thoughtfulness in favor of a bludgeon to beat us all into submission.  This is the drunk driving version of “do it for the children,” the excuse used regularly in an appeal to emotion without regard to reason.

As I’ve written numerous times before, the problem of drunk driving doesn’t manifest itself in a crash, or the death of a police officer trying to help others.  The problem happens at the moment a person who has had too much to drink leaves the bar and sits down behind the wheel of a car.  What happens after that is merely fortuitous, whether the person makes it home safely and sleeps it off, or ends up killing someone.

The numbers of accidents involving alcohol are badly skewed, calculated in ways that make it appear that they are happening constantly when it’s simply not true, The hysteria that follows obscures the problem rather than illuminates.  The extraordinarily successful interest groups, led by MADD, Mothers Against Drunk Driving or whatever other perceived threat they want to eliminate, control the dialogue, from including alcohol in the bodies of the victims of crashes to the rumors of smells becoming proof of another drunkard.  It’s hard to find a meaningful solution when every discussion begins with stopping the insanity.

Yet, drunk driving is a problem that compels a solution.  Harm to innocents on the road is hardly a trivial concern, whether the raw numbers are massive or invented.  Police Officer Joseph Olivieri should not have died on the highway in the early morning, and even though the car that struck him was driven by a sober driver, the incident itself might not have happened but for alcohol.  It’s worthy of everyone’s concern.

The solution, however, is not to turn us into a society of presumptive drunkards, requiring proof of sobriety before our car will start. It won’t be effective, and will give rise to a wealth of unintended consequences, creating problems for people who are similarly innocent of any wrong, yet according to Newsday, held responsible because it’s a simple solution.

The answer isn’t to make all of society pay for the few, but to address the root of the problem without it being obscured by hysteria and appeals to emotion.  Newsday’s editorial may make for good drama, but does little to add to clarity of thought.  More importantly, the solution to individual impropriety isn’t to hold those who have done no wrong, and wouldn’t do wrong, captive. 

Like Newsday, I too think we need to stop the insanity. The insanity in this case is Newsday’s solution to the problem.

The video was outrageous. The attempted cover-up disgraceful. But was it one drunk cop gone bad, or part of a practice by the Chicago police to cover-up police misconduct?

After the beating of bartender Karolina Obrycka by then-Chicago cop Anthony Abbate, about which there is little dispute despite the controversial sentence of two years probation imposed by Circuit Judge John Fleming on former cop Anthony Abbate, there were allegations of bribes, threats and cover-ups.  Six years later, the case is coming to trial.

Via the Chicago Tribune :

When Abbate left, Obrycka immediately called 911, touching off what her lawyers contend was a cover-up by police concerned over one of their own.

Two veteran Grand Central District patrol officers responded and learned from Obrycka that her attacker was a Chicago police officer and that the entire incident was captured by surveillance cameras. However, the officers didn’t mention either detail in their report, according to the court records.

That same evening, Gary Ortiz, another Abbate friend and city employee, went to the bar to ask Obrycka not to press charges, according to the lawsuit. Ortiz relayed that Abbate had offered to pay for Obrycka’s medical bills and time off work if she did not complain to the department or file a lawsuit, her lawyers contend. Obrycka declined the offer. According to court records, the city has conceded that Ortiz’s action was an attempted bribe.

When that didn’t work, Abbate turned to threats.

He goes, ‘Believe me what I tell you.’ He said, ‘Your life, everybody in the (expletive) bar — this is, this is — I’m backed against the wall,'” a transcript quoted Chiriboga as saying. “‘I don’t give a (expletive). I did, I did that to Karolina,’ he said, ‘but I want the tape. I want the (expletive) tape.’

“He calls me — he tells me, ‘Do you love your brother?'”

In the same conversation, Chiriboga told Kolodziej that Abbate threatened to falsify charges or plant evidence if necessary.

“You tell Martin to get rid of that tape or there’s gonna be people getting DUIs,” she quoted Abbate as telling her, according to the transcript. “You might be driving with a pound of (expletive) cocaine on you.”

This was brought to the Office of Professional Standards, which is alleged to have whitewashed the investigation.

According to the lawsuit, OPS investigators did not follow up on the allegations of bribery and intimidation, didn’t conduct a meaningful interview of Abbate or recommend his suspension, and submitted incomplete evidence to the Cook County state’s attorney’s office.

“The OPS investigators set about a concerted and deliberate effort to minimize and conceal from public scrutiny the details and facts of the case,” the lawsuit said.

According to the Tribune, the City has a policy of refusing to settle cases involving misconduct by off-duty officers.  Karolina Obrycka’s lawyers say the cop have a de facto policy of covering up each other’s conduct, and they are going to put the Code of Silence on trial to hold Chicago responsible.

To prove their case, the Plaintiff’s intended to call an expert, Dr. Steven Whitman, a statistician and epidemiologist, to provide both quantitative and qualitative testimony to show that the police department treats cops differently than non-cops.  Chicago challenged his expertise, and  District Judge Amy St. Eve held that Whitman was qualified to provide quantitative, but not qualitative, opinion.

Dr. Whitman has no education, training, or professional experience in criminology, or in matters involving policing, the CPD, the ways in which citizens file complaints against Chicago police officers, the process by which the CPD investigates allegations of police officer misconduct, or the CPD’s disciplinary process. Indeed, at his deposition, Dr. Whitman admitted that he had never reviewed a Complaint Register (“CR”) file, and that he does not know — and has not attempted to ascertain — what constitutes a “proper” or “improper” method of conducting a CR investigation. (Citations to record omitted.)

The problem is that combining the education, experience and background to find an expert not only suitably educated and capable, but one who possesses the specific experience of dealing with the issues in a police department, and even more particularly the Chicago police department, isn’t easy.

Here, Dr. Whitman lacks foundation for his qualitative conclusions. Despite Dr. Whitman’s impressive credentials and experience as a biostatistician and epidemiologist, by his own admission, he knows nothing about police departments, police misconduct, investigations into police misconduct, or the process by which the CPD disciplines its police officers — the subjects that lie at the heart of this case. In response to the City’s questions on these points at his February 5, 2010 deposition, Dr. Whitman consistently admitted that his expertise lies in data analysis, and that what he was “trying to do in this [case] is display all the data [he] had, explain what it meant as well as [he] could, and not go beyond [his] professional expertise.”

Accordingly, Judge St. Eve allowed the plaintiff to offer Dr, Whitman’s expert testimony as to the quantitative piece, but would not allow him to draw inferences from the data to show that the Chicago Police Department engages in a de facto policy of covering up police misconduct.

Many will wonder why it’s not enough to show that Abbate’s beating was covered up. Unfortunately, the state of the law is that to hold Chicago liable, plaintiff’s must show it to be an accepted governmental practice under Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658 (1978). Since there’s obviously no written policy, the proof must come from the practice, and the practice isn’t so easily proved.

The court’s ruling raises a sticky question: Will the jury be able to draw the necessary inferences from the quantitative date provided by the plaintiff’s expert?  Data is dry, boring, often obtuse in its detail.  What data means isn’t always clear and obvious, and often requires a depth of understanding that jurors lack.  Dr. Whitman may well have the goods to provide the jury with everything it needs to conclude that the Code of Silence is alive and well in Chicago, but it remains up to the jury to draw the necessary inferences.

Given the video in this case, and the rather disgraceful conduct after the beating by Chicago police, the case won’t lack for a dramatic basis for the jury to appreciate the wrong done Karolina Obrycka.  Whether that will translate to a verdict that the City of Chicago had a policy of covering police misconduct has yet to be seen. 

But the trial appears likely to put the Blue Wall of Silence on trial, and will certainly prove interesting either way.

H/T FritzMuffKnuckle

Among the things I tend to care a bit about is the future of the profession. which has caused me to write about new lawyers.  Some regular readers hate it when I do this, calling me mean names like “curmudgeon” because I tend to say mean things about them.  Mean, when it comes to new lawyers, is defined as anything that doesn’t build their self-esteem.  Guilty as charged.

But if new lawyers feel compelled to express their thoughts publicly, they invite scrutiny. This isn’t always a nice, warm, tummy rub.  A while back Seth Godin, marketing philosopher, made this point as well.

Sooner or later, you’ll ask for something or read something or expect something and you won’t like what you get. You’ll feel like I wasted your time, wasted your money or didn’t meet your expectations.

Not just me, of course. Everyone. Even you. You will disappoint someone, and the organizations you depend on will disappoint you. Expectations keep rising, and promises keep being made. We keep bringing more magic into the world, but rising expectations mean that there’s more disappointment as well.

That’s part of the deal of being in the world.

I’ve been told that I disappoint readers with regularity. It’s the risk one takes in being a blawger, and the recognition that you can’t please everyone is part of the deal.  So the choices are take the risk or get out.

The alternative, I’m afraid, isn’t to choose a path where we make everyone happy and always exceed their expectations. Nope. The alternative is to hide, to fail to engage and to produce nothing.

My view of new lawyers is far longer term than most readers, especially the new lawyers themselves. When I started SJ, many of them had yet to be accepted to law school, much less practicing lawyers.  This isn’t the slur most of them perceive it to be, but mere fact. Still, it’s a fact that doesn’t enhance their self-esteem and so they resist it with all their baby lawyer might.

Over the years, I’ve tried to come up with a way of explaining to new lawyers why their self-esteem may not be nearly as warranted as they think it is.  One argument, that if they’re so incredibly brilliant at one year out of law school, then how will they be ten years out, twenty years out, strikes me as fairly clear. 

Yet this argument hasn’t made much of a dent.  They tend to chalk up the value of experience to a means of subjugation by older lawyers to keep the new lawyers down, to put them in their place. We lord it over the newbies because we have it and they don’t, not because there is any value to experience.

From this, they argue that we’re jealous of their savvy and fearful that they will steal our clients, and that’s why we go to such lengths to diminish their worth.  It couldn’t possibly have anything to do with a concern that they are publishing their thoughts and “advice” on the internet for the world to see, and their thoughts aren’t always as brilliant as they think they are. Indeed, sometimes they’re downright dangerous. 

They complain that older lawyers are condescending. I’m certainly guilty of that too. They say we’re not sufficiently respectful, civil and sensitive to their fragile self-esteem. Guilty.  But in my defense, it doesn’t matter how much you think you know now that you’ve passed the bar, filled your briefcase with brilliance and collected adoring fans on twitter.

We may be colleagues, but we are not quite peers.  Your pugnacious resistance to the value of experience belies the problem; old guys find it tedious to be required to rub your tummy and make you feel valued while trying to explain why your brilliant thoughts aren’t nearly as brilliant as you think they are.

Aside: Sometimes, experienced lawyers will email or comment that they don’t see this happening as much as I say, or that they don’t see it as being as much of a problem. This is where my longevity in the blawgosphere comes into play. For better or worse, I read a lot of other blogs, mostly because people send me links to new blogs because they want me to mention them or promote them. The more I see, the more I realize both the scope and depth of the problem. If you don’t see it, great. That doesn’t change the fact that I see it. Perhaps if you saw what I saw, you would think otherwise.

The long term perspective may help to illuminate why this is. Every year, another crop of baby lawyers suddenly appears, filled with the same sense of self-importance and the compulsion to let the world know their deepest thoughts.  And so old guys are constrained to repeat themselves to each new class, as if no one has ever before graduated law school and reinvented the wheel.

And like the class before you, you whine and cry and complain how we’re mean old lawyer and don’t appreciate you.  And like the class before you, you parry and riposte with the same arguments we’ve seen over and over.  And like the class before you, you want to insulate your world from the harsh voice of experienced lawyers telling you things you don’t want to hear.

It’s tiresome. There are some new lawyers on the internet who get it, but far more who don’t.  They write their little hearts out (see how condescending I can be?) and await the applause and adoration of their fans.  Should a curmudgeon stop by, it ruins their dream.  No one has ever been discouraging to them before, told them they aren’t the coolest lawyer ever, or at the very least, softened the blow by first telling them all the wonderful things they are.

Does this disappoint you?  It certainly disappoints me.  Welcome to the real world, which is filled with disappointment and critical scrutiny.  You can hide from it, but it’s still there.  What you need to do is be able to take a punch and keep on trying.  That comes with experience.