The answer of “we may never know” doesn’t do much to explain why or how Seth Adams was shot to death by a Palm Beach County Deputy Sheriff, Sgt. Michael Custer.  Custer was undercover, purportedly engaged in an unknown operation unrelated to Adams and camped out in the parking lot to Adams’ gardening store. 

PB County Sheriff Ric Bradshaw insisted that his deputy could do no wrong, and the subsequent investigation by Florida Department of Law Enforcement cleared Custer and answered nothing.  How could it? There were only two witnesses, and one was left dying on the asphalt of his parking lot for 47 minutes before the deputy would let anyone near him. 

According to the official story, Custer was in fear of his life.

Seth Adams noticed the undercover deputy’s car in the parking lot of his family business on his way home from a local watering hole. Custer says he identified himself “verbally” and “visually” and that he “had a radio out.” He claims Adams grabbed him by the throat and that Adams’ “intentions were dangerous.”

When Adams returned to his vehicle, Custer said he recognized the maneuver from training videos and thought Adams was going for a gun. He shot him four times in under two seconds, saying “I think I basically tried to push away and just went boom, boom, boom, boom.”

His body riddled with bullets fired by an undercover Palm Beach County sheriff’s deputy, Seth Adams was clinging to life as he crawled across a darkened parking lot for help, an attorney representing Adams’ family said Thursday.

West Palm Beach attorney Valentin Rodriguez told  The Palm Beach Post that instead of trying to stop the 24-year-old Loxahatchee Groves man from bleeding to death, deputies tackled his brother, David Adams, who ran out of the family trailer on A Road to rescue him [after Seth called to tell his brother he was “shot by a cop”].

Palm Beach County Sheriff Ric Bradshaw, meanwhile, said of the situation: “It was just very bad from the outset with Seth Adams’ demeanor towards the deputy.”  Shortly after the shooting, Bradshaw noted “there’s only two witnesses here: the suspect and the deputy. And the suspect was not able to be interviewed. Why he decided to assault the deputy? We may never know that.” When the investigation was well underway, Bradshaw claimed it would “verify exactly what I thought from the beginning.”

And indeed, the investigation verified exactly what Bradshaw said it would.  What else could it do, there being a story that made no sense, a dead man and a live cop?  There were video cameras around the place, but apparently they weren’t recording that night.  And so, there was only one story to be told after Seth Adams died.

So what if the story doesn’t pass the smell test?  So what if there was no reason for Adams to choke a cop? So what if there was no gun in the car to strike fear in the heart of Sgt. Custer?  So what if he watched at Seth Adams dragged his bullet riddled body across a parking lot and did nothing? So what if Custer tackled David Adams to stop him from trying to save his brother’s life?  So what?  None of this proves Custer a liar, a killer.  It’s just a bunch of inexplicable acts, questions that will find no answers, and a dead man.

As Sheriff Ric Bradshaw correctly notes, we may never know the answers to any of these questions.  And that’s the beauty of there being two witness, but one dead.  There is nothing left but the Sgt. Michael Custer’s story, bad as it may be, and a dead body.

It seems unlikely that 7th Circuit Judge Richard Posner intended his opinion in  United States v. Castillo to come off this way, but even without an ostrich reference, it can’t be helped.

We write to clarify an ambiguity concerning the scope of appellate review of an above-guidelines sentence.  We have said that “the farther the judge’s sentence departs from the guidelines . . . the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed.”  United States v. Courtland, 642 F.3d 545, 550 (7th Cir. 2011)…. The ambiguity is in the word “farther.”  It can be conceived of in either relative or absolute terms.  A sentence of 60 months is 30 percent longer than a sentence of 46 months (the top of the applicable guidelines range in this case); and a 30 percent increase is large in relative terms. But in absolute terms, given the severity of federal criminal punishments, it is a smallish 14 months; the average federal prison sentence in 2009 was 57 months.

While it’s good that Judge Posner recognized the ambiguity in the earlier holding, although one would have suspected that at the time of writing “farther,” a smart judge like him would have realized it was a bit too glib to pass off in balancing the extent of departure with the extent of justification under reasonableness review. 

But then the circuit adds this gem to the mix:

It seems to us that the relative is generally more important than the absolute, as is implicit in a number of our previous decisions.  The guidelines range is the Sentencing Commission’s estimate of the reasonable range of punishments for the defendant’s offense.  Usually (an important qualification, as we’re about to see), a judge who imposes a sentence far above the top or far below the bottom of that range is challenging the Commission’s penal judgment, and given that the Commission’s knowledge of penology exceeds that of most judges, the judge needs to provide more in the way of justification than if he were departing incrementally.

Did I miss something?  Did the United States Sentencing Commission gain some magical power of penology when no one was looking?  All this time, the understanding was that the commission’s mandate was to standardize sentencing across the nation, so that a judge in California wouldn’t sentence a defendant to 10 years for the same crime that bought him 20 years in New York.  It wasn’t that they held some mystical power to know the intrinsically “right” sentence without any regard for the individual characteristics of the offense or the human being involved.

Even so, the court fails to provide any certain guidance, leaving itself wiggle room to ignore its own test (relative is generally more important than absolute), and thus fails to provide guidance to sentencing courts as to the extent of justification that will be required to uphold a departure on review.  And then Judge Posner stirs up muddy waters even further:

Guidelines ranges are inherently arbitrary, so had the judge in this case sentenced the defendant to 47 months instead of the guideline maximum of 46 it would not have been a significant challenge to the Commission’s penal judgment and so would not have required much in the way of justification.

The Guidelines ranges are inherently arbitrary?  Did he really write that?  If so, then they are by definition unconstitutional, as courts are precluded from acting arbitrarily, and therefore can’t rely on arbitrary guidelines to justify a sentence. And yet the decision expressly approves of a sentence that “would not have required much in the way of justification”?  So basically, the 7th Circuit has endorsed unjustifiable reliance on minor departures from arbitrary guidelines?

A 30 percent departure requires more; “substantial variances from the Sentencing Commission’s recommendations require careful thought.”

This rationale is astounding.  All this time, one would have thought that any sentence, every sentence, required careful thought.  Well, don’t I feel foolish now, learning that in the absence of a substantial (what that means) relative variance from the inherently arbitrary guidelines (which are advisory, though stemming from penologists who know better than any judge what sentence to impose), an utterly mindless sentence of, say, 480 months is just hunky-dory as long as it’s on the grid.

Perhaps Judge Posner is using this decision as a backdoor means of pointing out the absurdity of federal sentencing, but if this is a cynical means of making his point, it eludes me.  Rather, it seems far more likely that this reflects the sad state of reasonableness review, the acknowledgement of both deference and arbitrariness of the Sentencing Guidelines without similar recognition that there is no magical “right” sentence.  It’s poorly executed art that courts pretend is a science in order to lift the burden off their judicial shoulder and make judges not feel too badly about their imposing years, decades of imprisonment that can’t find any rational basis.

But rarely has a court inadvertently admitted what a pathetic joke federal sentencing has become.  Maybe Judge Posner would have done better to throw in a few ostrich references, so at least we could all have a chuckle over this otherwise nightmarish decision.

And by the way, even if the upward departure is only 10%, like a year over 121 months, it’s a year of some guy’s life.  It still matters. It’s still worthy of justification. Don’t give away other people’s lives so easily.

H/T Berman

While the city prosecutors try to harrumph their way through the Brady War, Erie County District Attorney Frank Sedita III has launched an offensive in the Buffalo News.

“While no one can deny that wrongful convictions have taken place, their rate of occurrence has been obscenely exaggerated,” writes Sedita.

Wrongful acquittals are far more common than wrongful convictions

Of course, what Sedita calls “wrongful acquittals” others might call cases where the cop or prosecutor believes a person is guilty but has no evidence to prove it.  And if they believe it, then, guilty they are, proof be damned.

Sedita’s editorial is fascinating, in that it reflects thoughts so bizarrely distorted as to make one wonder whether he could actually believe what he’s writing or thinks the readers so utterly ignorant that they won’t notice.

Our policy of critically and repeatedly reviewing cases at the pre-indictment stage has resulted in some cases being dismissed because the defendant is innocent. Since January 2011, my office has reviewed 4,764 potential felony cases for presentation to the grand jury or other disposition. Thirty-three of the defendants (0.7 percent) charged by the police were probably innocent. One such defendant was exonerated after indictment but well before trial. The remaining 32 defendants were exonerated before they were indicted by a grand jury.

None of the foregoing exonerations occurred after a wrongful conviction. None of the convictions obtained during my administration has been overturned because the defendant was innocent. My predecessor, District Attorney Frank J. Clark, served for 12 years (1997 to 2008) and none of the thousands of defendants convicted during his three terms has been exonerated as innocent.

Aside from the fact that exoneration only occurs after a wrongful conviction (though I hesitate to be critical of Sedita’s unfamiliarity of legal words; they’re pretty hard to understand for some folks, you know), his inability to comprehend that the absence of any exonerations isn’t proof that only the guilty were convicted, but the near-impossibility of the wrongfully convicted from obtaining relief.  Yet, Sedita credits himself and his office with his moral generosity and near-perfect score card:

In reality, it is the prosecutor who usually exonerates the wrongly accused, often without prodding from a defense attorney, and almost always well before a trial. Indeed, a critical review of every felony case, by professional prosecutors and at the earliest practicable stage of the proceedings (i.e. before indictment), prevents wrongful indictments and thus, prevents wrongful convictions.

While most would view a bad bust by a cop, charges without evidence, as a negative, Sedita views these as a demonstration of professionalism: Aren’t we wonderful, tossing cases that are utterly without evidence of a crime or guilt? What a great guy!  And despite his generous spirit, Sedita acknowledges that the system isn’t perfect.

While no one can deny that wrongful convictions have taken place, their rate of occurrence has been obscenely exaggerated. In reality, wrongful acquittals are much more common than wrongful convictions. I can point to at least four trials this year alone in Erie County that resulted in an acquittal despite overwhelming evidence of the defendant’s guilt. Post-indictment dismissals, usually because of technical procedural issues or because the court suppresses key prosecution evidence at the request of the defense, are more common still. Citizens are amazed to learn that under our legal system, the prosecution can rarely appeal a dismissal and can never appeal an acquittal.

Therein lies the kicker. Four trials in Eric County where the guilty walked. We know they’re guilty because Sedita says so, and since he’s the District Attorney, he couldn’t be wrong.  The jury acquitted? Morons. Fools. Idiots. The evidence was overwhelming, The jury is only right when they convicted, because after all, if they weren’t guilty as sin, Sedita wouldn’t prosecute them, as he already explained how he “exonerates” the innocent.  The rest of the system is just a way to squander the budget, confirming the obvious (except in the four cases this year alone where the jury blew it).

So the Erie County District Attorney concedes the system can make mistakes, but not the ones we think:

I agree that the system is flawed, but in a manner that benefits the accused. I can accept that. Our system presumes a man innocent until he is proven guilty beyond a reasonable doubt. Ours is the greatest criminal justice system ever devised and I am proud to play a role in it. What I cannot accept is deliberate deception heaped upon an unsuspecting public. In my view, these so-called legislative reforms, offered under the pretense of preventing an injustice, are not intended to protect the innocent from wrongful conviction but are instead designed to shield the guilty from any conviction.

Rarely has anyone had the chutzpah to publish such utter nonsense.  The system is already stacked against the prosecution, artfully designed by scheming reformers to the disadvantage of the prosecution in order to shield the guilty from conviction.

Except somehow missing from Sedita’s absurd screed is any mention of  Habib Wahir Abdal, convicted of rape in Buffalo in 1983, and exonerated by the Innocence Project via DNA in 1999 after serving 16 years in prison.  Or Anthony Capozzi, convicted of two rapes in Buffalo in 1987, and exonerated by the Innocence Project via DNA in 2007, having spent 22 years incarcerated. Or any of the other  24 New York State exonerations obtained by the Innocence Project, 

These are what Sedita calls “the pretense of preventing an injustice,” as we can just put our trust in prosecutors like Sedita, who will be more than happy to “exonerate” anybody they think is innocent on their own.  And if they don’t, you can bet they’re guilty.  After all, Sedita would never prosecute an innocent person. It just couldn’t happen in “the greatest criminal justice system ever devised.”

H/T Our hinterlands correspondent, Kathleen Casey

 

Via Amy Alkon, good intentions crash head first into the stone facade of the Department of Justice.

Those with “targeted disabilities” may be hired through a “non-competitive” appointment. That means they don’t have to endure the regular civil service competition among applicants, but can be plucked from the stack of resumes and hired immediately instead.

According to the documents, those with these “targeted disabilities” may be hired “before the position is advertised” and even “before the position’s closing date.” Moreover, lawyers with psychiatric disabilities and “severe intellectual” disabilities receive a waiver from the requirement that a new DOJ employee have practiced law for one year before being hired.

Now, I have no problem if they do hire people with disabilities — providing their disability doesn’t make them incapable of performing their job, and providing they aren’t hired over people, “able” or disabled, who are better qualified.

I’m more pleased that the DOJ is hiring people with “severe intellectual” disabilities than that the DOJ is hiring people with psychiatric disabilities; also more surprised.

After all, it’s easier to prevail against someone with “severe intellectual” disabilities than nuts.  There’s no assurance that nuts aren’t smart, and it’s often hard to tell someone is nuts until it’s too late.

No doubt that someone will react with the very kind, deeply sincere response that everyone should be given the chance to lead a happy, productive life.  And I think we all agree. They just can’t do anything they please, however, because no one is entitled to have their happy life come at the expense of other people’s happy lives.

I’m often accused of being an elitist when it comes to the law. I disdain the notion that it’s possible for laws to be written with such clarity and simplicity that everybody can understand them. I am strongly against the belief that the barriers to entry into the legal profession should be toppled so anyone can be a lawyer. 

I rarely have anything nice to say about people who are incapable of logical reasoning, or discerning the relevant from the irrelevant or emotional.  In contrast, I often assert that the practice of law is hard.  A lot of people see me as the enemy because I don’t embrace what I see as unduly simplistic and foolish notions.

That the DOJ, an entity with enormous power over the lives of others, would even consider something as outrageously stupid as this is beyond comprehension and credulity.  I don’t believe that any lawyer with psychiatric or severe intellectual disabilities will be hired.  I wouldn’t be surprised it this was a stunt, good for a laugh to see who falls for it.  Sadly, I also wouldn’t be surprised if this is 100% legit.

There are myriad jobs that can be well-handled by people with disabilities, including psychiatric and severe intellectual disabilities.  There’s a pretty decent chance that there will be more qualified candidates for these jobs who aren’t disabled, and that will perpetuate discrimination against those who are capable but have a deficit.  Maybe they need and deserve a bit of help in overcoming our inclination toward the best candidate (and disinclination toward the disabled candidate) so that they are not relegated in perpetuity to always being too far down the list to ever get a chance to show what they can do.  They do deserve a chance at a happy and productive life.  There are jobs that they can do well.

But being a lawyer isn’t one of them.  Being a brain surgeon isn’t one of them either.  And good intentions and wishful thinking isn’t sufficient to change that.

People who have never seen a midtown avenue at 9 o’clock in the morning would have a hard time imagining the mass of people heading in every direction.  There can be more folks on one stretch of sidewalk than populate small towns. Some move swiftly toward wherever they’re going, while others just stand there, blocking the ones who have a place to go.

This is no place to shoot a gun.

The police commissioner, Raymond W. Kelly, confirmed on Saturday that all nine were wounded by police bullets, bullet fragments or shrapnel from ricochets. Mr. Kelly also confirmed that the shooter, Mr. Johnson, never fired another shot after killing a former co-worker, Steven Ercolino, moments earlier.

“We had a witness that said that Johnson fired at the police,” Mr. Kelly said Saturday. “But the final count of the shells, it appears that that is not the case.”

It’s assume that when the officers approach the Jeffrey Johnson, who had just murdered Steve Ercolino outside the Empire State Building, they had no choice but to shoot.

The veteran patrolmen who opened fire on the suit-clad gunman, Jeffrey Johnson, had only an instant to react when he whirled around and pointed a .45-caliber pistol at them as they approached him from behind on a busy sidewalk.

Officer Craig Matthews shot seven times, and Officer Robert Sinishtaj fired nine times, police said. Neither had ever fired their weapons before on a patrol.

If someone “whirled around and pointed” a gun at me, there’s little doubt that I would shoot as well, if I could.  The gunman went down with ten bullets in his body, which is pretty good shooting by New York City standards. So did nine other people who had the misfortune of being on the wrong block at the wrong time. That none of them were killed was fortunate.  By fortunate, I mean lucky for them. Pure luck.

Similarly fortuitous was the New York Times reporter’s ability to find an “expert” professor who miraculously available to explain what happened:

Geoffrey P. Alpert, a criminologist at the University of South Carolina and an expert on the police use of force, said that hitting innocent civilians “doesn’t happen very often, but it happens.”

He added: “The rule of thumb is that you do not put civilians in the line of fire, but the rule of thumb is also that you don’t let a murderer get away.”

In fairness, the reporters never ask if you’re an “expert,” but rather add it to your name to give the quote greater weight and make their story appear well-researched.  But this one was wrong. This had nothing to do with letting a murderer get away, and if it had, it would have been inexplicably wrong.

The justification for the police opening fire was the First Rule of Policing, make it home for dinner. The officers feared for their lives, and who wouldn’t be if a man with a gun whirled around and pointed it at you. 

But for the nine people who happened to be wounded, the reasonableness of the police shooting brings little comfort. They were innocent people. They did nothing to get themselves shot. It’s a fair assumption that they all had better things to do that day, and likely had other plans for the evening than to spend the night in a hospital. Some, maybe all, will suffer for a long time from their wounds. Some may be disabled for the rest of their lives. The life of every innocent person shot has been changed by the misfortune of being on the wrong block that morning.

While we often consider the ramifications of the system on the wrongfully convicted, people who spend years, decades in prison when they’ve done nothing wrong, few will give much thought to the fact that nine innocent people were convicted by errant bullets and shrapnel that morning.  Bullets offer no due process.  There is no appeal from a bullet.  DNA won’t exonerate you from being shot.

Nine for one.  The maxim is that it’s better for  “n” guilty men to go free than one innocent man to be wrongfully convicted.  Here, nine innocent people were shot so stop one guilty man.

There will always be the well-intended but ridiculously naive person who asks why the cops couldn’t carefully put a single bullet with between Johnson’s eyes, so no one else would be put at risk.  No one has such mad skills. This isn’t a Dirty Harry movie, but real life on a real street with real cops and real bystanders.  As great as it might be if a cop, in the blink of an eye and with fear and adrenalin rushing through his veins could shoot a quarter at 100 paces, it just doesn’t happen that way.

Nor is there likely to be any recompense for the nine people shot.  Maybe the City will show some sympathy of their own volition, but it’s hard to nail down anything the police did wrong.  Sometimes bad things just happen when they do their job.  Sometimes, the cops aren’t breaking rules or violating rights, and still people get hurt.

Yet, our minds somehow play a game that allows us to feel badly for the nine people shot without connecting the harm to them with the need to exercise force.  While it feels differently to us, the pain of a bullet entering a body is no different to a bystander in a righteous police shoot than it is if it came from the gun of a criminal.  The change to their lives, next week, next year, will be every bit as real as if they were victims of a horrible crime.

There may be no good answer to what happened on Fifth Avenue that morning, but that offers little comfort to the people, whether they were moving swiftly to wherever they were going or just standing there, blocking the path.

After a  post the other day stemming from a  couple of  posts at My Shingle by Carolyn Elefant (to which she took umbrage, I hasten to add), I spent about an hour on the phone with a troubled lawyer.  During that conversation, something emerged that compels me to offer this suggestion: Stop lying.  Stop lying to others. Stop lying to yourself. Just stop lying.

Much like the lawyer in Carolyn’s posts, the guy I spoke with had left a stable and reasonably well-paying job to go solo.  Unlike Carolyn’s guy, he had a strong reason to do so, having gone from defense lawyer to prosecutor, only to find that he couldn’t stomach the job and had to return to defense.  Even so, he looked back on his decision as a monumental mistake.

He was an experienced lawyer, with more than ten years in the trenches.  He had substantial trial experience, though he hadn’t tried a case since going out on his own.  He followed the advice, played by the rules, and came into the game with the legitimate ability to fulfill his obligation to defendants.

He was dying.  His business was essentially non-existent.  As his savings depleted, the realization of more than a decade of his life, the sacrifices of his family, hit home. 

During the conversation, he told me that as he talked to other criminal defense lawyers, he was told that they were doing great. Fabulous. Big cases here. Huge cases there. Trials, trials, trials. New clients calling daily, with interesting cases and bulging wallets.  Life couldn’t be better.

“Why,” he asked me, “was everybody lying?  Or am I the only one drowning?”

I’ve spoken with many lawyers, many readers. You know who you are. You know that I know the truth. The business of criminal defense is dying. It’s awful. It sucks. And you’re hanging on by a thread, if at all.  Yet, most put on their game face, talking themselves up as if they are somehow beating the odds, knocking down the world, making a killing. Nobody wants to tell their brethren that they’re in the same boat, struggling daily to cover the nut and praying that the next phone call isn’t another nutjob or desperate defendant without a dime to his name.

It’s not that there is a shortage of criminal defendants, though crime is significantly down and serious crime even more so.  There is a shortage of criminal defendants who can afford to pay for a lawyer.  Sure, there are  some lawyers who are doing well, but you can count them on your fingers and toes, without resort to dropping trou. And there are a great many criminal defense lawyers, exceptionally good ones, who fight over crumbs these days, because that’s all they can do to survive.

It’s time we admit this, because walking around the courtroom hallways with our chests puffed out isn’t putting any food on our tables. 

During my phone call, we spoke of the baby lawyers hanging out in the hallways trying to catch the attention of a defendant’s mother with $100 in her pocket.  We spoke of n00bs, barely competent if at all, taking felonies for $1500 total.  He didn’t blame them, knowing they had loans to pay.

The lawprofs are busy reinventing law school so they can continue to churn out tens of thousands of new lawyers. The talk is about law school tuition and practice-ready lawyers.  The theory is that if they can produce lawyers without the $150,000 in debt, they can service the middle class, who can’t afford legal representation.

It’s a lie, but the lawprofs don’t realize it. They’ve never experienced law office finance, what it takes to pay rent and phone, or staff and equipment.  While student loan debt is a factor, it’s only one of many. They don’t grasp what every criminal defense lawyer faces daily, the cost of merely existing. They never paid a rent bill during their judicial clerkship or stint in the United States Attorney’s office.

On top of survival, a lawyer hopes for a bit more. To feed his family. To buy a car. A new car. To own a home, and once purchased, put furniture in it. To go out to eat once in a while, or maybe take in a movie. To go on vacation.  To pay for a child’s college education.  We’re called selfish, blood-suckers for wanting these things, expecting that the three years in law school, the tuition paid or owed, the experience gained over years, should produce a fairly stable middle-class existence.

The irony is that most criminal defense lawyers aren’t making enough money to live as well as the middle class clients they’re expected to subsidize.  It’s unfair that people should have to pay for lawyers?  Perhaps, but it’s unfair that lawyers aren’t doing any better than the clients who can’t afford them.

The fact is that the vast majority of criminal defense lawyers are starving.  Because of this, lawyers are cannibalizing themselves, stealing cases in the hallway and undercutting each other at every turn.  Websites create the expectation that people can get $1000 of legal representation for $12,97. They teach that lawyers desperately want to give away their advice for free.  The message is lawyers are fungible, or that no one wins anyway, so why bother paying money when you can lose just as well for free.

And what of the glory of social media marketing?  By my scientific calculations, one decent case comes in per 5,000 calls. If it’s high volume, low price, you want, there’s some potential. If you don’t mind insanity, or the consultation with 120 ridiculous questions, to be repeated to 25 lawyers they found on the internet, it may work. 

But at the end of the day, it will never produce the quality of cases and fees needed to sustain a practice, not to mention allow a lawyer to thrive financially. Sorry to burst the bubble, but a vague anecdote from a source that earns his living off selling social media marketing isn’t a sufficient basis on which to bet your future. Many have tried. And failed. Are you that special that it will be different for you?

I told my caller that he wasn’t crazy.  I told him that we’ve become a bunch of liar, fakers, pretending to be doing great because no one wants to appear to be a failure.  Failure doesn’t bring in the next case. Failure scares people away, like some ironic form of leprosy, as if it’s contagious.  Only losers fail, and no one wants to announce to his peers that he’s a loser.

I’ve watched as a great many excellent, experienced criminal defense lawyers have walked away over the past few years.  They took an oath, but the word “poverty” was never spoken. It’s not that they don’t want to help every person accused, but they have mouths to feed.  And yes, they want to enjoy a decent standard of living.  There’s no crime in that.

But until the lies stop, there will be no real discussion of how to change this downward spiral and make the practice of criminal defense a strong, desirable area of practice.  You can’t pay the rent with lies, and nothing will change until we cut the crap and start talking about how to make the practice criminal defense financial viable again.

After 24 years of prison, David Lee Wiggins walked out.  Yet again, Barry Scheck’s Innocence Project employed DNA to prove a convicted man innocent, although this time the Tarrant County, Texas, District Attorney was fully cooperative in the effort. 

The Tarrant County District Attorney’s office fully cooperated with the Innocence Project, consented to testing and opened their files to reinvestigate the crime. Wiggins always maintained his innocence and even filed an unsuccessful pro se motion seeking DNA testing before his trial, though DNA technology had just been introduced in criminal cases at that time. Although earlier rounds of testing were inconclusive, the Innocence Project was able to secure testing earlier this month that definitively excludes Wiggins as the source of sperm found on clothing the defendant was wearing at the time of the attack.

Wiggins said he agreed to be in a police lineup in 1988 because he knew that he didn’t commit the crime and thought he had nothing to worry about. Instead, it led to a 24-year nightmare that ended Friday.

“I always believed the truth would come out,” he said.

Belief in the truth sounds like such a wonderful thing. Who doesn’t believe? Who doesn’t love the truth? Well, perhaps the guilty guy, but then, nobody loves the guilty guy, so who cares about him.

Except Wiggins was the guilty guy.  His misfortune was eventually what saved him, that his conviction was for rape.  As it happens, rape often provides the evidence that can be DNA tested for identification.  Murder sometimes. Armed robbery, not too much. Drugs, almost never.

Yet the same identification, the same methods and the same blind belief that “I will never forget that face” that juries always find so compelling, nail down the conviction. 

To those on the outside looking in to the criminal justice system, the shocking revelations of wrongful convictions, conclusively proven by the efforts of the Innocence Project and others, seems incredible.  They find it impossible to believe that the system can be so wrong with such frequency.  And yet the thread between them is DNA, as the kismet of having scientific evidence of innocence distinguishes the guilty people we hate from the wrongfully convicted.

There is no question that Americans, with the exception of certain Texas prosecutors and judges, applaud the identification and release of the wrongfully convicted, but they remain largely hung up on proof.  The Innocence Project recognizes the problem, that not every wrongfully convicted defendant has the good fortune of having DNA evidence available to prove their innocence.

The Innocence Project provides pro bono legal representation on behalf of people seeking to prove their innocence post-conviction. Since its inception in 1992, the Innocence Project has only taken cases where DNA testing can prove innocence.

In some rare circumstances, however, the Innocence Project has helped exonerate clients through evidence other than DNA testing. We often have to close cases because the biological evidence is missing or destroyed, making DNA testing impossible. In some of those cases, strong evidence of innocence is discovered during the search for biological evidence, and we are able to secure our clients’ freedom without DNA testing. In other cases, DNA test results alone are not enough to free our clients, but can help exonerate people when coupled with other evidence of innocence. In all of these cases, new evidence of innocence resulted in our clients’ convictions being vacated and indictments against them being dismissed, fully exonerating them.

These cases underscore a critical point: DNA testing alone cannot overturn most wrongful convictions. In fact, experts estimate that DNA testing is possible in just 5-10% of all criminal cases. That is why a growing number of organizations in the Innocence Network handle cases regardless of whether DNA testing is possible.

Thus far, they have exonerated a total of five non-DNA cases.  While it matters a great deal to the five men who walked free, it’s statistically insignificant.  Tens of thousands will never be exonerated, though they are every bit as innocent as David Wiggins.

And this is said without touching the larger pool of people who are not quite innocent but hardly as guilty as their convictions say. The difference between two and twenty years is monumental to them, though outsiders to the system don’t lose a minute’s sleep over them.

While the conspiracy theorists and zealots are certain this is all the product of nefarious cops and hateful prosecutors, whose evil cheating schemes subjugate the citizenry, they are not merely misguided but distract from the real problems.

For the most part, no cop, prosecutor or judge wants to convict an innocent person. When you talk to them, you learn that they sincerely believe in what they’re doing, that they are protecting the public from harm, that the people they prosecute are guilty and deserve to be prosecuted. They may overstep the bounds in the process, though most don’t see it and will absolutely deny it ever happened, but they believe with all the righteousness they can muster that when they convicted an innocent person, they believed him guilty.  And of the many people convicted, they are often right. We can never forget that there are bad people out there who harm others, and from whom society truly needs protecting.

The problem is that David Lee Wiggins was exactly such a man. Until, one day, he wasn’t. The same is true of each of the wrongfully convicted. The same is true of the wrongfully convicted who will never be exonerated, and who will serve out there complete sentences, or perhaps die in prison.  The same is true for the defendants for whom no DNA is available or involved, and who have no hope of ever having their innocence proven.

We used to be able to sleep well at night, knowing that the men and women who filled out prisons to capacity and more were guilty.  Perhaps one or two were innocent, but like Justice Scalia, we could live with that as long as it wasn’t us.  No more.  No longer can we pretend that it’s just one or two, or take comfort in the myth of cops having a sixth sense for the guilty, or the righteousness of prosecutors and judges. 

The steady stream of exonerations have shaken our faith that the system works well enough.  Twenty years ago, they were all guilty. Today, we can no longer pretend that the system works well enough that a man can voluntarily walk into a line-up, knowing that he’s innocent, and believe that the truth will come out.

Blame it on DNA.  But DNA barely scratches the surface, for it only addresses the proof of innocence.  The systemic failures that result in wrongful convictions are beginning to change, with double blind identification procedures and video-recorded confessions, but they are barely palliative, just a start and (despite their advocates) hardly the grand solution to the problem.  Until DNA, we could pretend there was no real problem.  We can never go back there again.

Via Orin Kerr at Volokh Conspiracy, the town of Henry, Tennessee has come to realize that its fortunes may be tied to a dog.

At the Henry Mayor and Board of Alderman meeting on Tuesday, board members decided to allow police chief David Andrews to institute a K9 program for the Henry Police Department.

Andrews told board members that the city is missing out on possible revenues that a K9 would bring. He said when you make traffic stops and the driver refuses to allow a search, their hands are tied. If a drug dog alerts on a vehicle, its gives officers probable cause to search a vehicle for drugs or illegal proceeds from drugs. More drug arrests and drug, cash, and vehicle seizures lead to more revenues coming in for the police department and city.

Radley Balko wrote at least they get points for honesty.  More likely naivete, at best, or cynicism, at worst.  They openly said what everyone involved has long known, but had the good sense to keep to themselves.

Unlike many who now complain bitterly about the impropriety of in rem forfeiture (the legal fiction where it is the property that offends the sovereign), I was there when it first came into vogue.  I recall to this day sitting in chambers of a federal district court judge in the early 80’s as he scoffed at the government’s attempt to forfeit property.  “The law abhors a forfeiture,” he bellowed, repeating the ancient maxim that guided the common law to that very day.

It was the last time I ever heard a judge utter those words.

In the early days, judges were resistent to forfeiture, and the government was relatively circumspect in its use.  It was an offshoot of the heady drug days, invoked to seize currency and property of bad guys who either went down hard or were smart enough to walk even though everybody knew they what they were selling.  Remember, nobody drove a pimp mobile to keep a low profile.

Over time, the old judges who only begrudgingly signed off on a forfeiture were replace with new judges for whom forfeiture was the norm. And it quickly became untethered from the covert weapon to strip drug dealers of their vast wealth to a public relations ploy, as used to take cars away from drunk drivers, and revenue raiser for backwaters like Tenaha. 

Whether this is attributed to remembering the rubric while forgetting the rationale, or as the conspiracy theorists would have it, a cynical abuse by the oligarchy to strip the citizenry of its property, doesn’t matter.  It was a fundamental abuse of process from the outset, but in the beginning it only affected scummy drug dealers and nobody really cared what happened to scummy drug dealers. And so the law developed, approving a system that gave the property owner essentially no chance of prevailing. 

Who cared about the drug dealers, so no one except the criminal defense lawyers spoke against it.  Shades of Martin Niemöller, because now they’re coming for you.

The trigger to the spoils system is the lovable, obedient dog.  It didn’t come about for that reason, but rather because society embraced things that had a distant smell of science and facilitated the accomplishment of our drug war goals.  Plus, dogs were cute and beloved, and thus above criticism.  So their historic abilities of smelling escaped prisoners and tracking edible critters was turned toward drugs. Dogs could smell drugs, and sniff out those evil drug dealers who concealed their nasty poison.

It was a marriage made in doggy heaven, the linking of dogs and forfeiture.  As Ilya Somin apparently discovered yesterday,

It’s worth noting that drug-sniffing police dogs are often highly inaccurate, because dogs want to please their human handlers and therefore may turn up a false positive because that’s the reaction they think the handler wants.

For those not living in caves, this is pretty much a basic feature of drug dogs.  They can be made to “alert,” an interesting word that reflects whatever the dog’s handler says it reflects (“I observed the hair on his left paw move laterally, which indicates the presence of narcotics…”).  Once a dog alerts, probable cause, by definition, exists.  False positives? Meh.  That crazy statistician talk.  The courts have long held that a dog alert establishes probable cause, and so it is. It’s so embedded that they carve it into the courthouse lintels in flyover states.

Some smart cookie put it all together.

The burden of proof for in rem forfeiture is probable cause – check
Dog hits, by definition, are sufficient to establish probable cause – check
Ninety percent of currency will give rise to a drug dog alert – check
The shiny new very valuable Mercedes is the instrumentality of the crime of transporting drug proceeds, and therefore forfeitable if the drug dog alerts to the currency in a driver’s or passenger’s wallet – check

Is this a great country or what?  Remember, the law surrounding this process was developed at a time when drugs were fairly rampant and no one except criminals and criminal defense lawyers gave a damn about what happened to their assets.

So the Mayor and Aldermen of Henry, Tennessee, have come to the epiphany that they can cash in on the nice folks driving nice cars through their community with some cash in the wallets.  And now people are bewildered about how such an insane, cynical, easily abused process could possibly exist in these United States of America?

First they came for the drug dealers, and nobody spoke up because they weren’t a drug dealer.  And they hated the drug dealers. And it was only right that the government should be able to seize their assets, and deny them any chance to fight.  After all, we were at war with drugs back then.  That’s how it happens.

When Supreme Court Justice Thomas D. Raffaele’s throat met the hand of a police officer on the street in Queens,  he took a giant step forward to the place where the nice people who retain criminal defense lawyers live.  While it was a move in the right direction, it was only the start of a journey.  He may have suffered a brutal blow for no reason by a cop on the street who didn’t realize that the throat he struck belonged to a judge, but he had yet to realize the full force of the blow.

He’s getting there.

From the New York Law Journal :

A state judge who says he was assaulted by a police officer is accusing the Queens district attorney of orchestrating a cover-up after the prosecutor announced yesterday he will not file criminal charges against the officer who allegedly hit the judge and assaulted a homeless man.

“Everything they say is a lie,” Queens Supreme Court Justice Thomas Raffaele (See Profile) said in response to District Attorney Richard Brown’s press release.

A lie? How can that be?  They’re the good guys, the protectors of officials and the status quo. Or as every young prosecutor is taught to ask, “why would they lie?”

“Get Down” Brown, who has had plenty of practice issuing press releases lately, did what came naturally; he backed his cop.

Brown’s statement said that an investigation indicated that the homeless defendant, Charles Menninger, 47, was attempting to strike two police officers with a metal pipe and was appropriately restrained. He also suggested that Raffaele, who happened on the scene while walking through his neighborhood late one night, encroached on police.

But Raffaele said yesterday that the press release is full of falsehoods, and maintained it was the police officer, not Menninger, who was violently “out-of-control.”

This is where the system gets awkward, unwieldy. Usually, it’s just a few black and brown fingers pointing a bodies in blue claiming they were out of control. They’re easily dismissed with the usual rhetoric, and since everyone in the official system knows that the odds favor the cops, no one blinks.  But even though Justice Thomas Raffaele was walking the street in jeans that day, he still has a black robe hanging in his closet.  Is his word so easily dismissed?

Brown also said he could not prove that the officer who allegedly hit Raffaele with a karate-like chop to the throat “unjustifiably struck Justice Raffaele and that the judge sustained a physical injury.” He indicated that Raffaele had walked into a “safety perimeter that police officers attempted to establish” to contain Menninger and keep him away from the crowd.

Aside from tossing out cool police-type language like “safety perimeter” that creates an image of justification in the minds of all law-abiding people, Brown is really saying that Justice Raffaele isn’t a credible witness.  If it came down to a swearing contest between some cop and a judge, the cop wins.  As he always does, except for the rare occasion when there’s a video proving otherwise.

But the judge points out that it’s not just his word (because he apparently understands why he isn’t a credible witness), but there are witnesses to corroborate his account.

Raffaele said that when he was first interviewed in early June he gave investigators the names of witnesses who would corroborate his story. The judge said he later learned that the witnesses were not interviewed until much later and only after he complained.

This is a nuance often missed by those who don’t deal with it regularly. Witnesses that don’t bolster the police position aren’t interviewed to ascertain what really happened, but to undermine their credibility so they can’t be used by defense against them.  When they aren’t likely to be called by the defense, there isn’t much reason to interview them at all.  This detail often comes as a shock to people who watch too much TV, and think the police investigate.  The police make cases, and do only so much as they need to solidify their ability to convict. Any investigation that muddies the waters is unhelpful. Why would they want to do that?

One might suspect that Justice Raffaele has come to an epiphany from this experience, how life on the street differs from the routine of official experience.  And perhaps he’s learning, but wearing the robe makes it hard, if not impossible, to truly appreciate the significance of what he’s undergoing.

“I have great respect for police officers,” Raffaele said. “I think the vast majority are very brave and do great things to protect us. But when something like this happens, something totally unprovoked and very, very violent and it is brushed off, it is very discouraging and very upsetting. My feeling, frankly, is that somebody who is that violent and dangerous should not be walking around with a gun and a badge. He is an out-of-control, dangerous person.”

And so Justice Thomas Raffaele’s journey continues.  Still constrained to utter the requisite caveat of respect for police and one bad apple.  He hasn’t thought this through yet, recognizing that all the other police officers who didn’t stop the officer from hurting him are protecting the one who did.  He hasn’t come to realize that Brown’s allegiance is to the police, and not the judges. Or the truth.  The words haven’t sunk in that a perfectly fine story about a safety perimeter shields the official actions of the police from scrutiny, and allows the bad cop to thrive in a system that denies it could ever happen.  Maybe he doesn’t realize that Brown just called him a liar and incredible.

It’s a process for a judge to give up every shred of official sanctity, all the fine platitudes and easy answers that he can wrap around him like a cocoon and protect him from the harsh reality that the rest of society endures.  Justice Thomas Raffaele has reaches the step where he chalks it all up to an isolated incident.  He still has a way to go.

Are other judges paying attention?  You, or your spouse, or your kids, will walk the streets just like Justice Raffaele, and may happen upon a police officer pumped up with adrenalin and maybe a steroid or two.  Do you think your robe will protect them any better than Thomas Raffaele’s robe protected him?  Are you willing to bet their life on it?

The problem with smart kids is that they’re, well, smart. They come to realize that words are merely a means to convey a message, and otherwise neither good nor bad.  And so, as Prague, Oklahoma Valedictorian Kaitlin Nootbaar gave her inspirational speech to her classmates and their teary eyed parents, the word “hell” slipped from her lips.  And apparently all hell broke loose, at least in Prague High School principal Rickey Martin’s (I didn’t even know he got a legit job)  mind.

From KFOR :

Kaitlin Nootbaar graduated from Prague High School, the Red Devils, in May and was named valedictorian.

When tasked with writing the graduation speech, her dad said she got her inspiration from the movie “Eclipse: The Twilight Saga.”

Nootbaar said, “Her quote was, ‘When she first started school she wanted to be a nurse, then a veterinarian and now that she was getting closer to graduation, people would ask her, what do you want to do and she said how the hell do I know? I’ve changed my mind so many times.’”

He said in the written script she gave to the school she wrote “heck,” but in the moment she said “hell” instead. 

“We went to the office and asked for the diploma and the principal said, ‘Your diploma is right here but you’re not getting it. Close the door; we have a problem,’” Nootbaar said.

He said the principal told Kaitlin she would have to write an apology letter before he would release the diploma.

The demand that Kaitlin write a letter of apology is fascinating, given that it comes at the critical juncture where she is no longer subject to the principal’s control.  The diploma is a piece of paper, documenting the fact of graduation, just as the ceremony is where the magic words are spoken confirming that a student has met the requirements for graduation.  What it’s not is an opportunity to assert one final demand of control over a student’s thoughts and speech.  Tough luck, bro, but she’s no longer under your thumb.

Patrick at Popehat, sneaking into  Balko’s Agitator for an impromptu guest post, had this to say:

You pig-fucking coward. You shit-eating child born from a buggered arsehole. You piss-colored pile of carrion. You dung-fly. You prickless and ball-lacking catamite. You son of a street-walking widow who never had a man except for money. You cock-sucking arse-licking defiler of sacred shrines, you brainless heartless gutless cockless offspring of an imbecile and a deformed cow, you flea-bitten child-robber who poisoned your father and raped your mother and sold your sisters to the Dutch and carved up your brothers for sale in a butcher’s shop, you gutter-hugging trader in second-hand excrement, why won’t you give this girl her high school diploma?

Some might view this as painful to sensitive eyes, and indeed, I know mine twitched a bit, particularly at the use of catamite.  But you survived. I survived. And so too will the fine people of Prague, Doc Martin included.

In Tinker v. Des Moines School District, Abe Fortas wrote that free speech doesn’t stop at the schoolhouse gate.  Of course, he also wrote:

But conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.

Does the use of a minor curse, “hell,” involve substantial disorder or invade the rights of others? Since it was uttered at graduation, it clearly couldn’t have disrupted classwork.  Perhaps the principal felt that her fresh mouth invaded the rights of others to attend a high school graduation and hear only sweet words of deep meaning inspired by The Twilight Saga?

Nootbaar said the audience laughed, she finished her speech to warm applause and didn’t know there was a problem.

It’s troubling that the audience laughed.  Because she said “hell?”  Was it that shocking? People laugh when something is funny. They also laugh when they’re nervous, because something said has gone a bit beyond their comfort level.  That the audience applauded at the end of a valedictory speech isn’t quite novel, and whether the applause was warm or perfunctory is a matter of subjective interpretation.  Polite applause sounds a lot like warm applause.

It is not, however, the reception of the audience that controls.  No doubt there were some who thought nothing of Kaitlin’s curse, while there were others, prissy folks who believe that no foul language should mar the sanctity of a high school graduation, who were deeply offended by the word.  One can only wonder what happens when they watch television, or perhaps the occasional porno flick in aid of their boring marriages (this is sheer speculation on my part).

Under almost any other circumstances, the utterance of a word as inconsequential as “hell” would have not raised an eyelash. That the principal (or perhaps some other person of significance among those charged with maintaining school purity) either found it so offensive, or “inappropriate” raises it to the level of concern that makes this a story worthy of consideration.

It’s just a word, and barely a bad one if words could be bad.  At least Kaitlin didn’t use her opportunity to express her views to inform Rick Martin that her first thought as she entered the hallowed halls of Prague High School every school day for the past four years was that he was a blithering asshole. But even if she had, so what?  It was graduation, and there was no classwork left to disrupt.