One might suppose, given the pervasiveness of autism among school-aged children (which the CDC estimates at 1 in 110), that between school teachers, administrators and police, someone would have a clue how to appropriately deal with a 9 year old autistic child who has a melt down. But if it happens in Quincy, Illinois, you would be out of luck.

The incident began when Roger Parker, Jr. had some sort of unpleasant experience which lead to an outburst, where the teachers had difficulty keeping him under control.

They tried to isolate him in some kind of time out area, which probably made the situation even more scary and confusing for him.  When he tried to get out of this time out area by climbing a dividing wall police were already there to attempt to subdue him.

At that point police officer Calkins ripped the child from the wall by his limbs like a ragdoll, causing his face to smash against the wall, which resulted in a massive black eye .  He was then wrestled to the ground by police and taken into custody.

The boy was detained and booked for aggravated battery against a police officer and his family was denied access to him for a certain period of time. 

Forty-five minutes later, after they told me he did not need a parent present because he was under arrest and not being interrogated. He was fingerprinted, photographed, and booked for aggravated battery to a police officer.”

Jesse James, move aside. Baby Face Parker’s the new outlaw in town.

Kirchner said she is upset because she recently discussed a plan on how to handle her son if he has an outburst.

For the moment, the woman’s name is a secret, which is a good thing since revealing it would likely put her in serious jeopardy.  You see, she was turned into a snitch against a drug dealer, and drug dealers sometimes get upset about such things. Not that the Friendswood police care.

It wasn’t that the woman wanted to be a snitch. She was a single mother with no priors and a child at home. It started with a ticket for an illegal lane change, out-of-date registration and no insurance.  She didn’t want to pay the fine.  In some jurisdictions, she could have bought her way out of it by letting an officer “cop a feel” (where did you think that phrase came from?), but Friendswood cops are far too professional for such disgraceful sexual shenanigans. They want busts.

A woman in a small Texas town is alleging that police who pulled her over for a traffic ticket coerced her into making undercover drug buys to avoid paying the traffic fine, and threatened to reveal her role when she tried to back out of the arrangement.

The woman, who wishes to remain anonymous because she fears retribution from dealers, was pulled over for making an illegal lane change in the town Friendswood on Aug. 22, her attorney Dane Johnson told ABC News.

While most people wouldn’t think this the biggest deal ever, apparently she did.

While being held police offered her a deal: perform three controlled drug buys instead of paying the fines, the lawyer said. Her attorney told ABC News she had never bought drugs before, but agreed to do it to get out of the citations.

“I had two choices. They were either going to arrest me, or I could agree to do some controlled buys,” she told ABC affiliate KTRK.

After texts flew between the woman and the cops, including the chief, instructing her to make a $100 meth buy the next day, without any of the backup or support that normally goes along with a sting, the woman came to the epiphany that she didn’t cut the best deal ever, and so she went to Legal Zoom a lawyer to find out how to undo the deal. 

Several days later, she received a text message from the detective informing her she would need to write a letter to the police if she wanted to withdraw from the deal.

The message also warned her that if they filed charges against the drug dealer she bought from, she would be named in the affidavit as a source, revealing her as the person who “snitched” to the police.

The Chief of Police texted her attorney, telling him that by withdrawing from the deal, she “acknowledges that we may file a charge in the case of the controlled buy that she made and that she could be named in an arrest warrant.”

Snap. She can withdraw, but they’re going to float her name out there for the drug dealer to see. And, well, if some harm comes to her because a meth dealer isn’t thrilled with her deal either, well, not much they can do.  After all, she withdrew from the deal.  Can’t you just hear the chief cackling, “let her lawyer protect her,” and all the detectives give a hearty belly laugh?

This may clearly be just about the worst snitch deal ever cut, which should serve as a reminder of two things: First, talk to a lawyer before you make a deal with the cops. If the opportunity isn’t there, then don’t make the deal.  Second, becoming a snitch isn’t nearly as cool as it looks on TV.

But then, this woman, whoever she is, must have had a real problem with the traffic tickets to compel her to become a drug snitch standing on the side of the road.  Perhaps she was deeply in debt, had children to feed, and the few hundred bucks in fines would have put her out on the street.  She was ripe for the picking by the cops, who smell desperation and, being honorable gentlemen all, had no qualms about exploiting it.

Once she was in, the choices are limited.  It was a huge risk to try to pull out of the deal, as the cops could do exactly what they did.  The fact that they didn’t name the woman in the response to the lawyer is rather surprising, since that was the payback. 

The only impetus to keep her name out of it, and for this one has to credit the toughness of the lawyer for not backing down in the face of threats of harm to his client intended to scare the crap out of him, is that once everything came out, the revelation would have made the Friendswood police look even worse than they do.

While the analogy is often used, and used poorly, to compare the police to the mob, it seems unavoidable this time. The cops exploited this woman’s vulnerability for their own purposes, and then tried to hold onto her by threat of harm.  The best that can be said of the Friendswood cops is that they didn’t force her to
strip naked in the back of patrol car for the amusement of officers. She was only made to strip at the station, where all the women are made to strip, for the amusement of the officers.  They can make up good excuses for that, even though the woman was stopped for the vicious crime of an illegal lane change.

There is no good explanation for why a woman stopped for a traffic ticket should be coerced into playing snitch, even without threat of death at the hands of drug dealers. The police won’t respond to the charges because they’re under investigation. And it doesn’t help that their conduct was about as outrageous, abusive and coercive as they come, leaving them with little good to say anyway, other than welcome to Friendswood, Texas.  Use your blinkers, not your blinders.

Update:  And more friendship from Friendswood via Gizmodo a year ago, as hacked by Anonymous:

Exhibit A, an email from Robert Wieners Chief of Police, Friendswood, Texas Police Department. Subject line? “Stupid Bitch”:

That stupid bitch who started that stolen car chase at Yale and 610 got what she deserved (I’ll bet she was fat and black too). Same with that pervert that got shot by the county. Fuck that guy, see ya. That all sounds like good police work to me. Those folks got the criminal cure. It’s guaranteed, they will never commit a crime again.

Nice, warm and highly professional.  Also via Fritz.

H/T FritzMuffKnuckle

Annie Dookhan wanted to be a star. After all, the days of crime lab chemists working in dark back rooms, doing dirty, boring jobs, gave way to CSI coolness.  And because she followed her passion, a whole lot of people are going to walk out of jail. Many innocent. Some guilty. It won’t be possible to tell which is which, thanks to Annie.

What Annie did at the Massachusetts state crime lab makes the point better than any thoroughly written, thoughtfully researched, report by the National Institutes of Science. Annie makes clear that no science, not even real science, is any better than the human who does it.  From HuffPo :

Chemist Annie Dookhan was “Superwoman,” a colleague at a Massachusetts state crime lab used to joke. She seemed unstoppable in her quest to please prosecutors, police and her bosses, testing two to three times more drug samples than anyone else, working through lunch and not bothering to put in for overtime.

“The kind of person, if you owned your own business, you would want to hire her,” a supervisor would later tell police.

Aside from faking her credentials, she faked the tests. Some she just didn’t bother with, some she “dry labbed,” which apparently means she just looked at a substance and decided it was narcotics. She made up weights, didn’t calibrate equipment, and worst of all, sprinkled real drugs onto substances when there were no drugs to be had.  A star.

The litany of wrongs is comical, not because they should make anyone laugh but because they were so laughable. 

As early as 2008, a supervisor noticed Dookhan’s testing numbers were high. He spoke to her superior, but nothing happened. In 2009, the supervisor took his concerns to another superior, saying he never saw Dookhan in front of a microscope.

In 2010, a supervisor did an audit of Dookhan’s paperwork but didn’t retest any of her samples. The audit found nothing wrong. The same year, a fellow chemist found seven instances where Dookhan incorrectly identified a drug sample as a certain narcotic when it was something else. He told himself it was an honest mistake.

In one incident detailed by state police, a lab employee witnessed Dookhan weighing drug samples without doing a balance check on her scale.

Dookhan was handling a staggering number of samples. An average chemist could test 50 to 150 samples a month, but Dookhan was doing more than 500, according to monthly reports, a lab employee told police later.

And her supervisors knew it. Her co-workers knew it. They may have come up with excuses why her mistakes may not have been deliberate, but they knew it all along. They just shut their eyes tight and went on with their business, making sure defendants were convicted. 

People are funny. When they see something that stinks, but stinks in a way that produces results they like, they play whatever mental games they have to in order to rationalize the problem away.  They believe in the results, which reminds us again of why crime labs have become such a cesspool for error. They consider themselves an adjunct of the prosecution, not a neutral agency whose only purpose is to perform scientific testing. They are part of the machinery of conviction, and are not only expected to do their part, but want to do their part. They want to be proud of the fact that their work puts bad guys away.

The law adores science. Prosecutors and judges may not really understand much about it, which is how we ended up as lawyers rather than doctors, but we embrace the notion of science because it brings a sense of precision and exactitude to our otherwise fuzzy world.  It’s an issue precluder, conclusively determining facts as facts and thus removing them from the mix of variables that could be in doubt. 

Wrap up a ham sandwich in scientific mumbo-jumbo and we’ll eat it up. For years, lawyers stipped to the chemists findings, even before the prosecution was required to put the warm body on the stand, because there wasn’t much to do with them. They would recite all the tests they did and how that proved a substance was evil. It was all very perfunctory and official sounding. It’s not like you would get Annie on the stand to testify that she “dry labbed” the sample and never actually did the tests at all.

And this is with the good forensic science, the real stuff. Not the bite marks, the duct tape, bullets, fingerprints or even Cokie, the beloved drug dog.  This is the stuff, like DNA, which has an actual scientific basis. But none of it is actual science unless it’s performed properly, subject to scientific method, by people who don’t lie and contort, contaminate samples and “sprinkle” when the sample comes up empty.

There will be no shortage of hand-wringing over the disaster Annie has caused.  Now, despite the fact that it could have been nipped in the bud, they have over 60,000 samples she tested, plus however many she signed off on forging other chemists initials which basically puts every test every done at risk, they have a problem. 

People will walk, as well they should.  Good people and bad people alike will walk.  Whether this will make any prosecutor, judge or juror think twice about the efficacy of scientific, even good science, in that anything that involves the variable of a human being is never as perfect as it seems.  After all, this  isn’t the first crime lab fiasco, and yet the gatekeepers continue to compartmentalize the disasters as isolated instances, one after another.

That there was an Annie Dookhan working in the Massachusetts crime lab can be chalked up to one bad apple. That no one figured out that she was doing the dirty when her supervisor never saw her in front of a microscope, however, can’t. That there were doubts for years and no one ever mentioned it, as in  Brady for example, while lawyers faced irrefutable scientific proof in court that foreclosed any further hard thought about the scientific evidence, there was a whole system at work covering up for Annie’s 500 samples per month output of eyeballing white powder and proclaiming it cocaine, all to please the police and be a laboring oar in their vital mission to convict.

Yet the law, and the courts, still love science.  It’s one less thing to fight about.

The  New York Times reveals that Rob Johnson, District Attorney of The Bronx, has been doing a little something about the city’s dreaded stop & frisk practice.

In a significant blow to New York City’s use of stop-and-frisk tactics, the Bronx district attorney’s office is no longer prosecuting people who were stopped at public housing projects and arrested for trespassing, unless the arresting officer is interviewed to ensure that the arrest was warranted.

Prosecutors quietly adopted the policy in July after discovering that many people arrested on charges of criminal trespass at housing projects were innocent, even though police officers had provided written statements to the contrary.

Steven Banks, the chief lawyer of the Legal Aid Society in New York, said that the new requirement put “a procedure in place to verify that the stop and subsequent arrest were proper.”

“This is exactly what prosecutors should be doing before proceeding with criminal prosecutions — namely making sure that formulaic statements by police officers actually have some basis to support the arrest and prosecution,” Mr. Banks said.

But is that “exactly” what prosecutors should be doing?  And if it is, should they be doing so “quietly”? It’s stories like this that cause me a great deal of consternation. On the one hand, any movement away from unlawful and unconstitutional conduct is a good thing.  The specifics of this shift, trespassing at public housing, was rife with outrageous abuse, though it never seemed to play out that way at arraignment.

Yet, it gives rise to another issue that can’t be ignored. Dang, I hate to raise it and seem like an ingrate, but if Rob gets it here, which by definition means that he knows cops are feedings him lies for kicks under penalty of perjury (as the information they sign says so), then why isn’t he prosecuting the criminals?

And why is he doing all this quietly, when they know how to call a sweet press conference for the arrest of criminals who don’t wear blue?

And if they’re lying on trespass cases, what about the dropsy cases, or the “furtive movement” cases, or the assault cases where the defendant’s nose viciously struck the cop’s fist?

Steven Reed, a spokesman for the Bronx district attorney, Robert T. Johnson, said that the new policy of requiring interviews of officers “was discussed with the offices of the other district attorneys and the N.Y.P.D.,” but he would not comment further because of continuing litigation.

So the other DAs have chosen to persist in prosecuting cases based on lies?  And they know they’re lies, yet they continue to pursue arrests? And lie to the courts? 

That Rob Johnson has chosen to pull away from this horribly wrong stop & frisk policy, even in such a small way as this, is a wonderful thing, for which I applaud him. But a principled position requires the principle to be played out all the way, or it’s not really principled.  If it’s not okay to fabricate complaints at will, then it’s not okay, whether it’s about trespassing or public display of pot after the cop pulls it from your pants pocket.

Recently, all the metropolitan district attorneys were riding tall in the saddle to proclaim how they’re paragons of constitutional virtue. Rob Johnson was right in there with the brotherhood (and their wayward sister trying to horn in on the easy publicity).  They weren’t shy about going public. There was nothing quiet about it.  They claimed to know right from wrong, and they were thrilled to shout that they were RIGHT!!!

So why not now?  Why is this one being held close to the vest? Why no press releases? No marching bands? No planes writing in the sky that the Constitution isn’t entirely dead in The Bronx!

And what about Brooklyn?  Does Chuck Hynes say that Rob Johnson is an idiot?  Or Manhattan?  Will Cy Vance refuse to sit next to Rob at prosecutor lunches?  Same with Happy Hour?

Yet, my purpose isn’t to chastise the district attorney for having moved in the right direction, even if there remains a great deal of work to be done, both within his own house as well as the houses of others.  But I’m not ready to build him a statue yet either.

Yeah, this is a tough one.  And stop & frisk continues to result in the noses of young men meeting the tan brick facade of once-grand houses on a once Grand Concourse in The Bronx.  A very tough one indeed.

Mona Eltahawy wants everybody to watch her. So watch.



She hates the content of the sign she’s defacing. Many do.  She believes her freedom of expression trumps the freedom of speech of the sign.  She believes her freedom of expression trumps the potential of spraying the woman, Pamela Hall (I believe) in the process.  She believes the police must provide her with a satisfactory explanation of why they are arresting before she has any obligation to comply.

Forget the content of the subway poster, a terrible idea by Pamela Geller regardless of whether you agree with her idea or find it facially racist.  That’s a political issue best argued elsewhere.

But my free speech doesn’t trump your free speech. Mona’s free speech doesn’t trump Pamela’s free speech.  Mona can buy add space in the subway calling Pamela a racist. Mona, who styles herself a twitter journalist, can twit up a storm about it.  Mona can speak her mind, paint pictures, take videos and plaster YouTube.

What Mona cannot do is vandalize Geller’s posters and absolve herself of liability be asserting that it’s her right as an American to express herself freely. It’s not her right to deface someone else’s speech in the name of her own.

It takes little argument to explain why Mona Eltahawy is utterly wrong in her belief that she can do whatever she wants.  What makes this worthy of discussion is how her rationalization of the relative rights between her and the rest of the world works.  It begins with narcissism, the sadly pervasive force that drives so many people to believe that what they believe is more important than what anybody else believes, and they damn well have a right to make it known.

But this, while annoying, isn’t wrong. Even narcissists have the right to express themselves, even if nobody cares.

It’s the next step in twisted logic that gets her into trouble. Mona decided that the way in which she could best address Geller’s speech, speech she hates, is to destroy it.  She wraps up this irrational reaction in her own right to free expression, because that made her feel capable of doing what she wanted to do.

By that reasoning, Pamela Hall, the photographer in the video, could have exercised her freedom of expression by lowering her camera on Mona’s head with great velocity as an expression of her belief that vandalizing speech is wrong. And the police could have expressed their belief that being overly demanding is misguided by smashing Eltahaway’s face into the nasty subway platform. And on it goes.

This sort of facile rationalization has become de rigueur on the internet.  Sling together a few words that have captured popular approval to form some muddy notion of right with a modicum of superficial appeal and you can do pretty much anything you want.

There is a reason why some folks engage in unpleasant scrutiny of poorly reasoned, poorly rationalized words on the internet. It’s to stop people like this from wrapping themselves up in ignorance and acting upon it.  Many, particularly digital natives who use sloppy thinking to justify whatever they want to do, think it mean and “dickish” to explain why such facile mindlessness is wrong.

This is why.

Regardless of which side you take on the poster, what Mona Eltahaway did in response cannot be justified under any reasonable claim of right.  There were a million things she could have done to assert her beliefs. Defacing the posters is not one of them.  No matter who you are or how important you think you are in the universe, you do not have the right to oppose another person’s speech by destroying it.

I hope everybody was watching.

Update: Per the Daily News, Mona is represented by an old friend, Stanley Cohen, no stranger to radical causes. 

At the Trial Warrior Blog, Antonin Pribetic writes about an idea so novel, so daring, so outrageous, that it’s got to capture the imagination of someone. Just not Nino.

In his post over at Legal Cheek, “Twitter Set To Drive ‘Free-Of-Charge Ferrari Through The Horse And Cart World Of Law’, i@n davison (trendily pronounced iatn”) forecasts a ”Twitter legal advice experiment taking place today could prove a turning point for the way legal services are delivered”. Davison writes,

In a few hours, family lawyer  Lisa Collins, of Colchester law firm Birkett Long Solicitors, will take to Twitter to offer free legal advice. The pioneering session, which takes place today between 12pm and 2pm, will cover conventional family law matters, plus issues faced by lesbian, gay, bisexual and transgender people.

One question springs to mind: why pay for legal services when they can be provided for free on Twitter by lawyers like Collins who live in low cost areas of the country like Essex (where they can be sustained by their savings and practise law as a hobby)?

Well, the question is not “why pay for legal services when they can be provided for free on Twitter”?, but rather “who in their right mind would pay for free legal advice on Twitter?” There’s no such thing as a free lunch, when someone else has to pick up the tab.

No. Our responsibility isn’t contingent on things that make the people asking us questions happy. It’s doesn’t depend on ease of use.  If you want to play lawyer for free, that’s your call. Nobody requires you to charge for your advice.  But that doesn’t mean 140 characters is good enough.  

And to the happy person who got his legal advice off twitter, consider what you will say when it doesn’t fly with the judge, and he asks “who told you that was a good idea?” No, legal advice on twitter is not a good idea. Not at all.

A little over a year ago, Troy Davis was executed, though there was very serious doubt of his guilt.  But time has passed, and we move on to other things.  After all, there is an election coming up, and people are still unemployed, and our ambassador in Libya was murdered. There is no time to dwell on old news.

Today is the Jewish Day of Atonement, Yom Kippur. If I were more of a believer in the practice of a religion that frames my ethnicity, I wouldn’t be typing on this keyboard right now, but I’m not. But the concept of a day of atonement is good one, religion aside.  Must has happened in the past year. Much always happens in a past year.  A day when one looks back is a good thing, whether at our own lives or the lives around us.

There is no one who couldn’t stand some introspection.  We all have something for which to atone.  We may not want to admit we’re sorry, but we should be.  We could always do better.

And if there isn’t anything in particular that strikes one as atonement worthy, then consider what we could have done to help, or prevent, one of the many things that happened in the past year from happening.  Not because someone paid us to represent them, whether they were on the side of the angels or devils, but because we remain human beings who have a role to play in the existence of our world even when we’re not on the clock.

When I wrote the other day about not being “passionate” as a lawyer, but dispassionate, there was a subtle distinction that some missed.  Jeff Gamso caught it. As much as we may be dispassionate as lawyers, we are simultaneously people, and as people we bring passion to bear on the things about which we feel strongly.  At least we should.

As dispassion should guide our professional judgment, choices and tactics, passion should guide our lives in the sense that we chose to dedicate our time, our goals, our beliefs and our efforts toward things that matter to us.  Money isn’t a belief, but a necessity to an extent that we endure to be available to do other, more worthwhile, things.  Deciding to use our time and energies to help people, to help a cause, to serve a greater good, is to make a life mean something.

This isn’t to say what that belief should be. People on both sides of issues believe they are serving a greater good.  And as much as passion make us feel that our beliefs are right while conflicting beliefs are wrong, it guides us to make the choices that are right for us.  That’s about as good as we can do.

To those who have put their energies and efforts toward making their existence matter, who have followed their passion, question whether you have done all you could, done it honestly and could have done better.  If not, today would be a good day to atone.

To those who couldn’t be bothered to stand for anything because it was inconvenient, or would have interfered with your quest for money, love or world hegemony, today would be a good day to atone for a life wasted.

To those who wanted to stand for something, but were afraid, today would be a good day to atone for your cowardice and fear.

To those who knew what they believed in but pushed it aside for personal gain, personal benefit above all else, today would be a good day to atone for being the worst our species can produce.

There is no one who wouldn’t do well to take a day to think about what we could have done better. Certainly not me.  And the beauty of the concept is that we can start fresh tomorrow and be the kind of person we want to be.  It’s never to late to be a  better person, at least if you’re reading this. It is too late for Troy Davis.

The traditional Jewish greeting on Yom Kippur is G’mar Hatimah Tovah, may you be sealed for a good year in the Book of Life.  It’s up to you whether you make the next year a good one. Make it count.

A question asked regularly, and properly, by non-lawyers is how do cops, courts, governments get away with ignoring the law with impunity?  This is particularly apt with small offenses, the sort that touch so many people yet seem to defy scrutiny.  There is an answer, but you’re not going to like it.

I drove out east yesterday, to lovely East Hampton. This wasn’t for shopping or a trip to the beach. Not even for happy hour at Cyril’s.  My trip ended at the Town of East Hampton courthouse, where they are gracious enough to handle the Village of East Hampton’s parking tickets.

The Village of East Hampton takes its parking tickets very seriously. It’s a huge profit center, fueled by the rich and self-important who believe the rules don’t apply to them.  As long as they pay the price, they can do anything they please.  The locals avoid the place in the summer, when the tourists run wild, and spend the rest of the year enjoying the benefits of parking ticket income.  It’s a trade-off, but the cost-benefit analysis works in their favor.

There were 50 parking tickets on the docket. I was there for one. Dr. SJ has forbidden me to mention the identity of the woman who was driving the car that got the ticket, and so I won’t give her name. But I can tell this story because no client privilege is implicated. In fairness, I hasten to add that the driver had her eagle-eyed lawyer in the passenger seat at the time, and he didn’t happen to see any problem either.

The ticket was defective. Deeply, fatally, defective. Not in one regard, but in essentially every regard.  Here’s the laundry list:

The ticket was for “no parking” in a parking lot, neglecting to mention (or even have a place to mention) what statute or ordinance was allegedly violated.

The ticket included an advisement for pleading guilty by mail and remitting a fine.  It did not, however, include the notice that the recipient could plead not guilty by mail as well.

The ticket did not include the requisite language of CPL §100.25, that the recipient was entitled to a supporting deposition.

The ticket bore a return date a month beyond the date within which an appearance was required by local ordinance.

No person shall park, except with a parking receipt visibly displayed on the driver’s side of the dashboard of the vehicle, during periods of time when parking limitations are in effect.

There was no law that provided for periods of time when parking limitations were in effect.  You can’t just make up rules as you go along, and fine people for violating them.

But how did a couple of reasonably intelligent people find themselves in such a jam in the first place? Even that revealed a problem. At the entrance to the parking lot, tickets are supposed to be taken which allow for an hour of free parking, provided the tickets are displayed right side up.  There is a stop sign, below which is a legend to take a ticket to park. The stop sign is high enough to be seen over the heads of people standing in front of the sign. The legend below is not, despite state regulation of the height of signs so that drivers can see them.

As there was a crowd of hungry summer food shoppers awaiting the right moment to cross the entrance to the lot, standing in front of the sign that informed parkers to take a ticket, it was easy not to notice the ticket requirement. 

So after a lovely drive out east, with a stop at the Westhampton Beach bakery to pick up a box of fried jelly croissants (which are not to be missed), I found myself in a particularly formal courtroom for an east end village. It must have cost a lot of money to line the walls with wood, like a federal district court rather than the stinky district courts that dot Suffolk County.  I wondered where the money came from, and why the town thought it advisable to spend it on such a courtroom.  I didn’t wonder for long.

I took a seat in the front row, as attorneys often do, while awaiting the long line of unhappy people conferred with the prosecutor about their moving violations.  The numbers were staggering. A few tickets apiece, with a face value of $500 a throw, being negotiated down to $300 or $250 each.  This place was a cash machine the likes of which would cause any banker to embarrass himself.  No doubt the formality of the courtroom added to the misery, a reminder that each miscreant was facing a mighty government capable of such majesty.

After the line calmed down, I approached the Village prosecutor, a nice young fellow, to discuss the case. He asked me whether I was there for a parking ticket, and I sheepishly admitted I was.  There is no huge pride to be taken in defending against a parking ticket, no matter how you spin it.  Before I could waste any more of his time, he said “$20.”

This is where it gets really embarrassing. I want to tell you that having recognized the manifest errors in the tickets used by the Village of East Hampton, the flawed law, the improper sign, that I stood firm on principle and rejected his offer. I want to.  But I can’t.

At $20, he had my number.  I couldn’t say no.  I thought of the three more appearances out east, the written motions, the reply, the oral argument, and if the ruling was adverse as so often happens in local courts, the appeal.  How could I ignore the time it would have sucked from my life for $20? 

I capitulated.  I pulled a $20 from my pocket and handed it over to the clerk at the window.  In front of me was another lawyer, whose wife had similarly received a parking ticket and who had come to court because he would have never heard the end of it if he refused. He handed over a $20 bill as well.  They knew exactly where the tipping point was. They knew how to get away with it.

So you wonder how bad, wrong local laws and practice survive scrutiny?  They do so because people like me, who can and should stand on principle and end the tyranny that afflicts so many who can’t fight for themselves, trade off the ability to challenge them for a $20.  That’s how. And so the outlaw Village of East Hampton got away with it again.

In 2009, Sarasota Police Officer Chris Childers got caught.  A video in the jail “sallyport” told the story of how his handling of then 21-year-old Juan Perez, drunk, was less than fitting.  The  Herald-Tribune described the video at the time:

The tape shows Officer Christopher Childers pull a squad car into the jail’s sallyport area with Juan G. Perez, 21, with his hands handcuffed behind him in the back seat about 8 p.m. on June 26. Childers remains in the front seat as Perez shimmies out the squad car’s open back window and falls face-first onto the pavement, the video shows. The officer walks around the car and stands by Perez.

Minutes later, as Perez is trying to stand up, Childers apparently kicks him in the chest, then kicks him again. Perez falls back to the ground and Childers stands with his foot on Perez for five minutes. While Childers stands with his foot on the inmate’s torso, two other law enforcement officers walk over to see what is going on and then go about their business.

Childers and another officer later pull Perez up and take him into the jail. He is brought back to the squad car, staggering but on his feet. Perez was driven to the hospital, where police said his blood-alcohol content tested at almost three times the legal limit.

This conduct got Childers fired from the police force.  The usual reaction to gratuitous abuse by cops didn’t happen here. No whitewash. No hiding behind “we’re investigating” until the ill-winds blow past. No vague explanations to justify the unjustifiable.  No bull.

Childers, a nine-year veteran officer and former U.S. Army Ranger, was fired after investigators concluded he violated five department policies.

In those 9 years, Childers had managed to accumulate five excessive force complaints. Since “none stuck,” they don’t constitute a basis to conclude he had a propensity to use excessive force, but it’s included here for the same reason cops inform the newspapers about the criminal arrest record of every citizen they shoot without cause, to leave an unpleasant taste.

What followed was a show of chaos at the Sarasota Police Department, with the Chief, Peter Abbott, getting canned after being  accused of trying to improperly influence Perez when he sent a detective by to offer him a quick $400 to shut down. Perez later received $40,000 in settlement. Then there was the Civil Service Board fiasco, where the board violated the sunshine law by discussing the case privately, resulting in a big money damage award of $90,000.

The case finally went before a new Board, the final arbiter of police termination.  They shrugged. No big deal, and concluded that Childers should be reinstated with back pay for the three years that elapsed.

Civil Service Board members, including former City Commissioner Ken Shelin, said they were particularly swayed by the testimony of an SPD sergeant who saw what happened and said he did not think it was egregious.

“This was really not a strong force that was used,” Shelin said, as the board deliberated. “The man was drunk as a skunk and he was going to topple over easily. And apparently, that’s all he did. It was an easy push with his foot, and the man fell over.

“I know it looks bad on the tape, and that’s one of the problems with the video of this, and the public’s perception of the video.”

Every picture tells a story, don’t it?  This picture tells a story of why municipalities don’t rid themselves of bad cops.  It costs too much, and they don’t fare well anyway. 

They had a video.  This wasn’t a matter of a citizen’s complaint, which any rookie lawyer could argue is just animus or sour grapes, since police officers are sworn to uphold the law and respect the rights of citizens, which conclusively proves they would never harm anyone needlessly. “Why would they?” is the standard argument, and it’s proven its vitality for decades.

They had a video, but it didn’t have sound. Could that spell the difference?

The video did not capture sound, so it is difficult to say whether the officer felt threatened by Perez, or whether Perez was attempting to escape, said Maria “Maki” Haberfeld, a professor at John Jay.

However, when the other officers walk over to Childers as he stands with his foot on the inmate, it is clear the officers are in no danger, Haberfeld said.

“There was no need to keep him on the ground,” she said. “It’s not justified.”

But Civil Service Board member, and former City Commissioner, Ken Shelin spelled it out. Perez was “drunk as a skunk.” Screw him. He “was going to toppled over easily.” No harm, no foul. But most importantly, “it looks bad on tape, and that’s one of the problems with the video of this, and the public’s perception of the video,” which means that it wasn’t bad.  No doubt you can follow the logic too.

Childers, having had three years to ponder how to explain his conduct caught on tape, offered his exonerating explanation.

Childers — who argues the word ‘kick’ does not accurately describe what he did to gain control of Perez — says he was not trying to hurt him or use any more force than necessary to keep him subdued.

He had left the window of the patrol car open, he said, so that Perez could get some fresh air as he coped with the effects of the pepper spray.

Childers said he used his foot on Perez because he was trying to keep from being spit on.

“I didn’t want to get in a close proximity to him where if he wants to spit, it would get in my face,” Childers said. “That’s why I used my feet, and my legs.”

Nothing to see here. Move along.   Police Officer Childers is back from his three year vacation.

In yet another excellent post. Eric Mayer at the  Unwashed Advocate explains why he’ll pass on a young lawyer who is sniffing for a job.

“You know, Eric, I’m really passionate about defending soldiers.”

I smiled and made attempts at keeping the conversation light. Though I left with the feeling that he hoped that a seed was planted for future cultivation.

The fact is, I’d never hire him. Ever.

“Ever” is a very long time. What could have caused such a reaction?

So, why won’t I hire him?

He’s passionate.

I don’t have time to deal with that crap.

But, but, but…isn’t “passion” the word that crops up everywhere these days?  Aren’t we told by legal marketers and social media gurus that the key to success is to be passionate?  Isn’t the sage advice to follow your passion?

I talk to passionate people all the time. Some are clients. Some are potential clients. Many are family members–moms, dads, wives, brothers, sisters, and mistresses. Others are third-party advocates (victim, veteran, and the like). They are passionate. Often very, very passionate.

They know what they know and believe what they believe. They become flustered and angry at the thought that someone could believe otherwise. When I explain that the opposing side has a logical and (generally) accepted reason for a particular stance, I’m met with the same high-powered anger and frustration.

They blurt, “How can they possibly think that?! How can you say those jerks have solid and compelling evidence?!”

Passion isn’t just the rage these days, but a dangerously misguided perspective. It goes by other names, zealot, true believer for example, but it’s all the same thing. Lawyers who have confused their purpose with that of their clients.

The characterization of passionate has become increasingly pervasive, mostly because lawyers think it sells.  Clients like to think their lawyers “feel” exactly as they do, are as outraged at the injustice of it all and as utterly devoted to their  self-serving perception of “justice.”  The axiom is “justice is blind,” and they believe their lawyer should be as well.

Sadly, the blawgosphere has fed this misguided view.  It’s congealed the sides into teams of like-minded cheerleaders, who whip each other into a fervor through hyperbole and validation. If this were merely to bolster the fortitude of lawyers who rationalized away their responsibility to zealously represent their clients, this would be a wonderful thing. But that’s not what we’re talking about. It’s about proclaiming that our side is the side of good and the other side is the side of evil. We’re right. They’re wrong. No matter what they say, they are liars and we speak truth, for we are the side of truth and justice.

It gets worse.  There are lawyers who post rants directed toward the ignorant and angry, feeding them what they want to hear and in return receiving the adoration of their fans.  The problem is that these dialectics are remarkably unpersuasive, often dead wrong, and guaranteed to make any reader worse for having read it.

It’s easy to mount an argument when there is no one to argue against you, pointing out every inch of the way the error of your reasoning or the failure of your foundation.  But that’s not how it works in court, and that’s not how lawyers function.  We aren’t pundits, pontificating in the comfort of our easy chair with only sycophants around us. We face prosecutors, judges and juries, and they get to both contradict our positions and determine whether we’re out of our minds.  And they do.

Whenever someone tells me they’re “passionate,” I have the same reaction Eric does.  It tells me that they prefer to shut their eyes as tight as possible and sing “lalalala” at the top of their lungs whenever the arguments against them are made.  They believe. They believe too much. They can’t grasp that their belief isn’t shared by everyone, which makes everyone else either wrong or crazy.  And they can’t understand why they lose.

Feeling passion makes a person think they are flawless, and they see the other side as obviously and irreparably flawed. How dare someone think otherwise.

As lawyers, we are hired to analyze everything dispassionately, call it as we see it, and make the most of whatever hand we are dealt. If we are passionate, we fail at all three. The last thing we should do is practice in an area where we feel passion.

As a person, I can be plenty passionate.  As a lawyer, I cannot.  As a lawyer, my duty is to be effective in providing my client with the best possible outcome, regardless of any “passion” I may feel.

You see, priests “believe,” people “feel,” but lawyers “think.”

My experience tells me that passion usually results in one of two things: poor legal reasoning or unintended pregnancies.

Keep your passion. I’m with Eric.  I’ll stick with effective.

Update:  Some of the comments to this post made me think of this, so I had to add it in:

Proud of his scars and the battles he’s lost…

To paraphrase Patton, the object isn’t to die for your cause but to make the other poor bastard die for his.

Check our  Jeff Gamso’s post on this, where he offers a great perspective.