Law professor Jay Wexler lives in a strange place. No, not Boston, but his mind.  Only a mind that functions a bit differently than the rest of us could produce his latest book, The Adventures of Ed Tuttle, Associate Justice, and other stories, his first work of fiction. 

The opening line in my review of Jay’s last book, The Odd Clauses, was “Jay Wexler is a very funny guy.”  I meant funny in a conventional sense. His new book, sent to me for review, is anything but conventional.  Consider this excerpt from the chapter, Henry Clay Will Solve Our Problems.

December 2010. In Mexico City, a U.S. climate change negotiator argues with his Chinese counterpart.

CHINESE NEGOTIATOR: We absolutely cannot accept this proposal. The developed world has created this global warming crisis, and you must lead us out of it. The United States must pledge to cut emissions by 50% and provide low-cost technology to developing nations.

U.S. NEGOTIATOR: My country will never agree to such drastic cuts unless yours agrees to the same. China is the greatest emitter of greenhouse gases in the entire world.

A dapper man enters and takes a seat next to the two negotiators.

HENRY CLAY: with booming voice, somewhat out of place in the small conference room Gentlemen, surely we can find some compromise!

CHINESE NEGOTIATOR: I’m a woman.

HENRY CLAY: And I am Henry Clay, the Great Compromiser. I have an idea that will appeal to both of your great nations. Neither of you want to decrease emissions unless the other one decreases emissions, right? So why don’t you both not decrease emissions?

A pause.

U.S. NEGOTIATOR: I’m cool with that. You?

CHINESE NEGOTIATOR: Umm, it seems wrong, but . . .

HENRY CLAY: Then it’s settled!

Another pause.

HENRY CLAY: Did I mention that I invented the mint julep?

t = rF sin θ and a smidge

He was hooked. 

The book is made up of short stories and vignettes that are both surreal and yet, in an inexplicable sort of way, not sufficiently surreal to be sure they couldn’t happen.  The title chapter, the story of Supreme Court Association Justice Ed Tuttle’s sex life and aspirations on vacation (how exactly does a Supreme Court justice, vacationing in Jackson, Wyoming, prove to hot chicks and roadies he really is a judge?) takes the reader on a severely alternative view of the big guys, but not all the stories are law related.  And even the ones that are use law as a hook rather than their core.

This is not a book that will enlighten anyone on the law.  Not even a little bit. But if your sense of humor is anything close to that of a guy who once worked in the Office of Legal Counsel at the Department of Justice, perhaps shattering the myth that there is no one in government who can tell a joke, you’re going to love this book.

Trying to get a firm grasp of the book to explain what exactly Jay is doing isn’t easy. Not at all. There’s a perpetual sense that it’s funny, yet it’s nearly impossible to explain why.  The “Lunch Beans” story, for example, is what I would imagine Kafka would write if he was studying for a math doctorate.  It can be that obtuse, and at the same time, sufficiently absurd as to make you laugh against your will.

It’s not as if Jay didn’t warn me that I was about to enter an odd world, as reflected in his inscription.



Why, I wonder, does Sal the pineapple hate himself?  I don’t know. It’s obviously a cry for help, but the options when it comes to pineapples are extremely limited.

As I read The Adventures of Ed Tuttle, I frequently heard a whooshing sound overhead. That was caused by the parts I didn’t get, or at least I wasn’t sure I got.  If you’re the sort of person who prefers his humor with a punchline, this isn’t the book for you. This is a book for people who are going to get the allusions and covert references, and who appreciate their humor with a side of absurdity. 

This is a book for smart, yet peculiar, people.  I’m not at all clear that I’m smart enough to have appreciated the book, even though I thought it funny and enjoyed it.  It was often beyond my ability to explain why.

The book reads very quickly, with the chapters short and utterly without discernible connection to each other.  It’s as if they reflect Jay’s lucid thoughts following a series of Timothy Leary lectures, feeling no compulsion to proceed in a linear fashion.

And yet, it was a book I wouldn’t miss reading. If Jay Wexler is insane, then this book is the way it spreads. Whether it will have any significant impact on sales of pineapples is doubtful, but read the book and see if you agree with my diagnosis. And if you understand why Sal hates himself, could you please let me know?

The New York Police Department announced that it has  identified the suspect in the shooting of Sgt. Craig Bier.  The image of the wanted man is all over the television and newspapers, and according to the information carefully leaked to every media outlet who cared to listen, the evidence to suggest they’ve got their man seems pretty strong.

A law-enforcement official with knowledge of the matter said Mr. Thomas was identified as the alleged shooter in two ways: A fingerprint on a magazine for a Ruger 9mm handgun, which was found at the scene and believed to be the weapon used in the shooting, was tied to Mr. Thomas, the official said.

 

Peter J. Smith for The Wall Street Journal
The weapon believed to be used.

In addition, a set of keys dropped at the scene were traced to an apartment in a Queens public-housing project where Mr. Thomas appears to live, the official said. According to the official, mail inside the apartment contained Mr. Thomas’ name. The apartment was unoccupied when police arrived there.

Whether this evidence pans out, or is susceptible to other explanation, remains to be seen, but given the opportunity to sell their case to the public before anyone has a chance to dispute it, the NYPD has made sure to prejudice as many people as possible.

But there’s one additional detail that has been passed around to anyone listening:

Mr. Thomas has 17 prior arrests for charges that include criminal possession of a weapon and criminal possession of controlled substances,

Did you catch that?  Not 17 prior convictions. Seventeen prior arrests.  No hint of what became of the arrests. Tried and acquitted?  Dismissed?  Were they for serious crimes or trivial offenses? Was he a regular on the stop and frisk tour of Queens?  Was he ever convicted of anything?  Anything at all?

And what of the crimes, since the police just happened to mention possession of a weapon and controlled substances.  Did he have a gun or a pen knife?  Did he have ten kilos of heroin or trace amounts of cocaine? 

While printing such meaningless drivel remind us that the media remains as clueless and unskeptical of police vagaries as ever, two things emerge from the fact that the police have chosen to leak this bit of inside information, which for all we know was sealed and should never have been known, no less revealed.

First, by the fact that they speak of arrests, the implication is that there are no convictions.  The public has a tough time distinguishing the significance of these two point, assuming that anyone arrested deserved to be arrested, since the police don’t wander the streets arresting black guys for nothing.  Except they do, with enormous frequency, but we prefer to pretend otherwise or we would feel constrained to do something about it.  That would interfere with television viewing and make life unpleasant.  Nobody wants life to be unpleasant, at least for themselves and while there’s a show on they want to watch.

Second, the smearing of a person by propensity, the suggestion that they are of a criminal nature, inclined to commit crimes, and therefore likely to have committed the additional crime for which they are now sought, remains as powerful as ever.  As every cop and prosecutor knows, tainting a person as being of a criminal bent creates the framework with which to view every allegation against him.  He’s a criminal, and therefore it’s easy to believe that he does criminal things.

This isn’t to say that the suspect isn’t the guy who shot Bier in both legs, Nor is this to say that there is any conceivable justification for whoever did the shooting for having done so.  Thomas may be guilty as sin.

But even if so, let him be proven guilty by evidence, not be pre-arrest taint spread thick across the media to make sure that every watcher of TV news or reader of a newspaper knows before a piece of evidence is offered in court that he’s just a criminal type of guy.

And it might serve the public interest for someone in the media to give a bit of thought to not only showing reluctance to dutifully serve the police by spreading its smear campaign, but by giving an iota of thought to what the cops are leaking and consider that 17 arrests, or 197 arrests for that matter, isn’t the same as a single conviction.  In New York City, 17 arrests could just as easily mean the guy likes to go out for a walk at a time that just happens to coincide with the end of his local beat cop’s shift.

While he plays a lawyer on TV, the ABC “voice of reason” juxtaposed to the Nancy Grace’s “voice of insanity,” it’s clear that  Danny Abrams needs to bone up on his legal research and caselaw analysis.  In a post at Lawyers.com, the Lexis-Nexis, Martindale-Hubbell effort to feign relevance in a digital world under the guiding hand of former social media marketer, now editor, Larry Bodine, Abrams cries about the falling sky :

Social media has changed everything, moving that chatter to the public sphere and putting educators on uncertain legal ground. Whether the issue is students making fun of their teachers or principals, kids bullying other kids, protesting school policies or flouting student codes of conduct, the move into the social media arena complicates an important legal issue.

Social media can be experienced and produced on mobile devices like smartphones and tablets, and that makes it difficult to determine a student’s location when offending comments are made. Imagine that a high school student posts an offensive picture of her principal on Facebook via her mobile phone. If the student pressed “Post” while sitting in her school’s parking lot it could theoretically be grounds for suspension, but if she’s five blocks away the school’s administrators might not have a legal leg to stand on.

A pair of federal cases involving student-created Myspace pages, for example, established that a school’s right to discipline may be confined to actions that take place on its physical grounds, even when the offending speech exists in the digital sphere. Although the Myspace pages caused disruptions that reached school hallways and (in one case)could be accessed on the school’s computers, the court held that the school had no right to discipline the students for speech that occurred outside school property.

Clearly, he never read the decisions, as his story bears no resemblance to their holdings.  Had he even bothered to read his own link, he would have realized that he got it completely wrong:

Using the guidance provided by the Supreme Court, the Third Circuit held that the students’ speech did not cause a substantial disruption in the school.  Nor did the creation of the profiles forecast a substantial disruption which would allow a school district to punish a student.  Further, just because the students’ speech was lewd, vulgar, and offensive and had an effect on the school and the educational mission of the District (one of the exceptions to the Tinker rule), the fact that it was off-campus speech meant it fell within the free speech umbrella.  Even if it reached the school, it was not enough to qualify under the Tinker substantial disruption exception.

Needless to say, had Danny done an legwork at all, he would have stumbled onto the case of Avery Doninger , whose run for student office was  terminated with prejudice because she called her school’s superintendent and principal “douche bags” for canceling a school function.  Or Morse v. Frederick, the  ill-conceived “bong hits for Jesus” case.  Anything strike a bell here, Dan?

It’s not that Dan Abrams isn’t allowed to take up arms against student speech, if he hates it as much as he says.  Just because his father was one of the premier advocates of free speech doesn’t mean the son can’t despise the First Amendment. Sometimes, the apple rolls far from the tree. Very, very far.  That’s his right.

What is not his right is to misstate the law and make people stupider for having read his post. 

For reasons that are unclear, Danny has become a legal television celebrity, his inability to find the courthouse notwithstanding.  His smiling face appears regularly, almost daily, the ABC entertainment show, Good Morning America.  Millions upon millions of people listen to him debate Nancy Grace on legal issues of the day, and given that the bar is being slightly more astute than one of the looniest legal commentators ever, he comes off as eminently reasonable.

But with his celebrity comes a responsibility.  It’s a duty to educate.  It’s a duty to be accurate.  It’s a duty to not let his hatred of free speech for others (remember, he’s a member of the commentariot, and as such gets paid to speak freely) color his legal explanation of the state of the law.  That he cannot do.  Yet, that’s exactly what he does here.

I remember Danny from the old days at MSNBC in Secaucus, when he was a nice young man, a lawyer who hitched his wagon with television rather than courtrooms. Smart, polite and badly in need of a well-pressed shirt, Dan’s heart and mind were in the right place even if he lacked the experience to back it up.  Now that he’s a celebrity, maybe his darker angels have taken over.  Maybe he just hates kids. I don’t know.

What I do know is that Dan Abrams is smart enough to figure out what the law says, and that regardless of his opinion that student speech needs to be shut down, the use of his celebrity and his law degree to grossly misinform people is irresponsible.  Unless, of course, he’s got it in his head to take over the Nancy Grace role on TV, in which case this post nails it.

Via Kevin Underhill at Lowering the Bar, it appears that one takes a grave risk of watching the Olympics in person if your face doesn’t show the requisite degree of “happy.”

Mark Worsfold, 54, a former soldier and martial arts instructor, was arrested on 28 July for a breach of the peace shortly before the cyclists arrived in Redhouse Park, Leatherhead, where he had sat down on a wall to watch the race. Officers from Surrey police restrained and handcuffed him and took him to Reigate police station, saying his behaviour had “caused concern.”

While the bobbies may well have good reason to show heightened concern, given that the Olympics may be a target for terrorism and the Brits don’t want another Munich on their hands, there’s a limit to what sort of things are sufficient to seize a fellow.  From the Guardian :

Worsfold, whose experience was first reported by Private Eye, claims police questioned him about his demeanour and why he had not been seen to be visibly enjoying the event.

“It could have been done better. I was arrested for not smiling”

As it turns out, Worsfold has Parkinson’s Disease, which is not (yet) a crime a Great Britain.  Apparently, having Parkinson’s is a more anticipated cause for concern there than one might expect.

Campaigners, however, said the incident was illustrative of the kind of “chronic misunderstandings” people with Parkinson’s have to deal with regularly. “Sadly Mark’s experience highlights the lack of understanding and compassion that many people currently living with Parkinson’s have to deal with every day,” said Laura Bowey, head of information and support at Parkinson’s UK.

On the other hand, once the police realized after two hours of “investigation” they had needlessly seized Worsfold, who had no nefarious scheme in mind when he failed to adequately smile, he was released unharmed.

Surrey police said: “There were a number of factors which led officers to make this arrest, including the fact that the race was rapidly approaching, the heightened level of security due to the high-profile nature of the event and the sheer number of spectators in attendance. These were fully explained to the individual concerned. He was given words of advice and released with no further action.”

While the actual “words of advice” given remains a well-guarded secret, Underhill may have the inside track:

“See if you can’t get that Parkinson’s disease cleared up before the next Olympics.”

Words to live by.  More seriously, however, is the concern that facial recognition software, developed to automate that keen eyes of the Surrey constabulary, will not only suffer from the same false positive reaction, but will hardly be as prompt to cure as did this little Brit kerfluffle.

The most relevant example being the NGIFRP—what? You haven’t been following the deployment of the NGIFRP? The Next Generation Identification Facial Recognition Program? That’s the government’s plan to include in its giant biometrics database at least 12 million “searchable frontal photos” (hopefully, this means your face) and develop software to track and ID people in crowd or social-media photos. The vast majority of such people, of course, will not even be suspected of a crime. But hey, can’t be too careful. Still, consider this: if human beings are so incredibly bad at identifying bad guys, let alone potential bad guys— and they are really, really bad at it—is it better or worse to hand that off to software? How well do you think that software will work?

The problem is that facial recognition programs involve “science” (note scare quotes).  If “science” says it works, then work it must. If “science” says it’s valid, then who is a judge to disagree?  After all, no one can argue with “science.”

That cynical Kevin Underhill not only suggests that this technology is unlikely to work in a way that won’t sweep in the Worsfolds of the world, but that somebody is going to get filthy rich off the government contracts.  Personally, I’m considering a substantial investment in Guy Fawkes masks. They’re always smiling.

In a decision described by Judge William Fletcher as “easy,”  the 9th Circuit enforced a DEA administrative subpoena against Golden Valley Electric Association in Alaska for a broad array of information about three of its customers.  At the very least, Golden Valley’s refusal to simply hand over its records without a fight warrants appreciation and admiration, despite its having taken the loss.

While most companies are not merely happy to turn over anything requested by the government, usually sending a box of donuts along with personal information just to remain on its good side, GVEA decided that it would rather protect the privacy of its members than become a cog in the government’s wheel.  The request was, to be mild, intrusive:

As part of its investigation, the DEA served an administrative subpoena on Golden Valley pursuant to 21 U.S.C. § 876(a). The subpoena ordered Golden Valley to provide company records pertaining to electricity consumption at three specified customer addresses. The records subpoenaed were:

customer information including full name, address, telephone number, and any account information for customer; method of payment (credit card, debit card, cash, check) with card number and account information; to include power consumption records and date(s) service was initiated and terminated for the period 10-01-2009 through 12-14-2010, if applicable[.]

Golden Valley did not immediately comply with the subpoena.

The Comprehensive Drug Abuse and Prevention Act of 1970 was intended to “strengthen law enforcement tools against the traffic of illicit drugs.” No law since the ratification of the Bill of Rights to the Constitution was intended to strengthen tools to protect our privacy from the government. 

The purpose of the subpoena was to ascertain whether the three locations used significantly greater amounts of electricity than the norm.  This is one indicia of a property being used as a “grow house,” due to the intense lighting needed to grow marijuana.  As for the rest of the information sought, identifying the individual(s) in control of the premises and their financial information, it was the sort of detail that would be useful if the premises were being used illegally.  If not, it was just personal, private financial information of innocent people in the hands of the government. What could go wrong?

GVEA questioned the relevance of the information sought by the government, contending that fluctuations in electric use were common in Alaska.  The court dismissed the argument.

The information subpoenaed does not need to be relevant to a crime; in fact, it may be used to dissipate any suspicion of a crime. The information subpoenaed need only be relevant to an agency investigation.

This rationale is rather extraordinary, slipping in the backdoor argument that the evidence subpoenaed could not merely show guilt, but could exculpate the targets as well.  The problem with such a theory is that it could be used affirmatively by the government as a basis for a subpoena.

Company:  Why are you subpoenaing Joe Smith’s records?

DEA Agent: We suspect that Smith has not committed a crime, and are trying to prove it.

Company: Well then, here you go. After all, it’s relevant to dissipating suspicion of a crime.

While it’s doubtful that Judge Fletcher had this in mind when he wrote those words, the law of unintended consequences remains in full force and effect.

Moreover, GVEA contended that the information of its customers was private, and that the government should be held to the standard of the 4th Amendment, and require a warrant, before the company was compelled to hand over the information.  The Circuit wasn’t impressed with that argument either.

The Supreme Court has refused to require that an agency have probable cause to justify issuance of a subpoena. See United States v. Powell, 379 U.S. 48, 57 (1964) (citing the “general rejection of probable cause requirements in [administrative subpoenas] involving other agencies”); Okla. Press, 327 U.S. at 215-16 (rejecting probable cause requirement in agency subpoena context).

While this is nothing new, it bears noting that the black letter law from 1964 is more than adequate to dispense with the need for administrative subpoenas to meet probable cause.  Why is that, you ask?  Don’t worry your pretty head over it, the court responds.  After all, if a party refuses to comply, the agency will have to go to court to enforce it’s subpoena, and a court will then decide it’s worthiness.  Just like this court did.

The court then rejected GVEA’s contention that it had a duty to its customers to keep their personal information private.

Golden Valley also relies on a company policy of protecting the privacy of its members. Depending on the circumstances or the type of information, a company’s guarantee to its customers that it will safeguard the privacy of their records might suffice to justify resisting an administrative subpoena. However, Golden Valley has not shown the existence of any agreement with its customers to keep their usage and payment records confidential. Further, the Court in Miller carefully explained that the nature of the subpoenaed bank records gave the bank’s customers little reason to expect that they would be kept confidential from the government. The Court wrote:

Even if we direct our attention to the original checks and deposit slips, rather than to the microfilm copies actually received and obtained by means of the subpoena, we perceive no legitimate “expectation of privacy” in their contents. The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.

While the court offers some hope that a company can, with an unspecified “guarantee,” create a contractual duty with its customers to keep their information private from the government, that hope is pretty well dashed by the quote, to the effect that bank checks and deposit slips, perhaps the information most dear and private to citizens, isn’t confidential because we “voluntarily convey” that information to banks and their employees are “exposed” to it.

While this may be a fine argument for keeping your savings under your mattress to protect your privacy, other laws requiring disclosure of currency transactions and prohibiting its use make that problematic as well. 

Sadly, the 9th Circuit’s decision is sound in all respects on existing law, meaning that every time some company with which you do business promises that it will protect your privacy, you can bet that a court will have a good chuckle when asked to enforce a government subpoena.  At least GVEA tried to fight it. Not too many would bother.

If you were running a government, a very expensive one at that, and were offered the opportunity to use your authority to compel businesses to pay out a few billion dollars or, in the alternative, lock up a few corporate executives for a couple of years, what would you do?

Pharmaceutical companies, military contractors, banks and other corporations are on track to pay as much as $8 billion this year to resolve charges of defrauding the government, analysts say — a record sum and more than twice the amount assessed last year by the Justice Department.

The surge in penalties is because of a number of factors, including the resolution of longstanding actions against drug makers and military contractors, as well as lawsuits brought against mortgage lenders after the financial crisis. But it also reflects a renewed emphasis on corporate fraud, as the Justice Department devotes more resources to the issue and demands higher penalties from companies.

The ballooning settlements are for civil charges of fraud against the government, criminal charges often related to the same conduct and, in the case of health care companies, recovery of money for states for Medicaid fraud.

But while the collections are a boon to the government and taxpayers, they are resurrecting questions about the relative lack of charges against executives at the companies that are getting the stiffest penalties.

The most recent cases involve wrongdoing at some of the largest and most prominent companies. Last month, for example, GlaxoSmithKline said it would pay $3 billion to settle criminal and civil accusations of drug marketing and pricing fraud. In April, the military contractor ATK Launch Systems agreed to a $37 million settlement for selling “dangerous and defective” flares to the military.

In November, Merck settled charges of drug marketing and safety fraud for $950 million. A month earlier, Oracle agreed to pay $199.5 million after being accused of overbilling the government for software.

When the going gets tough, the tough get going. How is that working out for you?  In a New York Times op-ed, Oliver Burkeman writes about the power of negative thinking.  After discussing the feet of acolytes of positive thinking guru, Tony Robbins, who walked on burning coals and got, well, burned, he says:

Or take affirmations, those cheery slogans intended to lift the user’s mood by repeating them: “I am a lovable person!” “My life is filled with joy!” Psychologists at the University of Waterloo concluded that such statements make people with low self-esteem feel worse — not least because telling yourself you’re lovable is liable to provoke the grouchy internal counterargument that, really, you’re not.

Even goal setting, the ubiquitous motivational technique of managers everywhere, isn’t an undisputed boon. Fixating too vigorously on goals can distort an organization’s overall mission in a desperate effort to meet some overly narrow target, and research by several business-school professors suggests that employees consumed with goals are likelier to cut ethical corners.

After all, if failure isn’t an option, and you can’t succeed by honest, hard work, then there aren’t too many options left. 

The internet deluges lawyers with messages of how to succeed, usually bolstered by vague concepts and glorious platitudes of becoming the head of a tribe, or a thought leader, or authentically engaging.  No one talks much about the internal inconsistency of this cheap talk, that tribes can’t be made up of all chiefs and no indians, that not everyone has thoughts that the rest of the legal world desires to hear, and those who authentically engage aren’t particularly astute or personable.  By definition most of us are part of the pack, and that’s all we ever will be.

That’s life.

But it may not be good enough. It may not be acceptable. You want more. You need more. Here you are, a lawyer, with all that time, all that money, sunk into your career, and the promise of comfortable life in return withering on the vine.  Explain it to your spouse and your kids, how the law is hard, business is rough.  It can crush your soul, so you open yourself to the power of positive thinking in the hopes of finding a better answer because the one you’ve got now isn’t working.

The problem is that as bad as things are, they can always get worse.  The  Wall Street Journal Law Blog reports that lawyers continue to get sucked into internet easy money scams.

Lawyers who warn clients against risky transactions are not supposed to get drawn in themselves.

But some are turning out to be easy prey for email swindlers using a sophisticated Internet scam that has bilked millions from law firms across North America, as the WSJ reported Monday.

Internet swindlers can reap much as $100,000 to $400,000 each time a law firm is duped, according to court records and federal law enforcement officials.

I get a few of these scam emails a day. Chances are good that you do too. Don’t we all know that these are scams, that no real client will email us out of the blue to handle their easy collection of a cool million, where we get to keep a third for doing nothing more than writing a letter?  Any idiot knows that, right?  Except the victims of Emmanuel Ekhator.

In a first here in the U.S., an alleged ringleader of one such scam is set to go on trial this fall in U.S. district court in Pennsylvania. Federal prosecutors say Emmanuel Ekhator, a Nigerian national, bilked firms of at least $32 million that way. Mr. Ekhator, who prosecutors said was living in Canada at the time of the alleged frauds, has plead not guilty. His lawyer declined to comment.

Despite the publicity surrounding the Ekhator case — and numerous warnings over the years from law enforcement and bar associations — the victims continue to pile up.

Meet the power of positive thinking. Meet the end result of the persistent claims of social media legal evangelists, who twit constantly about the fabulous wealth to be made by hopping on the tech train, and how you better jump on now or it’s leaving you behind.  You’re hungry. You’re desperate. You are ready to try anything. Even  Seth Godin says if you’re waiting for proof that it’s real, you’ve waited too long.  Do it! Take the chance! Do it NOW!

The power of negative thinking is that it keeps us skeptical.  Skepticism prevents us from getting burned.  What kind of idiot walks on burning coals? Why would any sane person do such a thing? The same could be asked of  lawyers who fall for scams on the internet.  And it’s not just rich Nigerian princes, but well-known companies like West, even bar associations, who will do anything to separate you from your money.

The desperate will respond, “so what are we supposed to do?”  Hard work, integrity and honing your skills isn’t a magic bullet. You won’t get rich overnight. You won’t become a thought leader. You won’t become a social media rockstar.  The reason is because no matter how hard you shut your eyes, click your heels, and repeat, “I’m fabulous,” it doesn’t make it so.  There is no secret to overnight success.

The best you can hope for is not to be played for a fool on the internet.  As bad as things may be, at least your feet aren’t burned. 



 

For every person who wins a gold medal, there are athletes who don’t. They are the losers of the Olympics, the guy at the back of the field in the 100 meter dash.  Compared to the winner, he looks so slow, so, well, pathetic.

The guy who loses in the Olympics put in 10,000 hours of practice.  His family spent a small fortune on his training, his coaching, his equipment and his care.  He passed up going to the movies, or maybe a dance, and probably didn’t have time to perfect his technique in Mortal Kombat.  He may not even have a lot of friends on Facebook.

The guy who finished last in the Olympics was a hometown hero.  He was a college star.  Many admired him. Some even adored him.  Maybe in his nation, they threw a dinner to honor him.

At home, he has a wall of trophies. Or medals. Or plaques.  Or all of these physical manifestations of his prowess.  He has know great success, and probably great failure.  He cried when he didn’t perform as well as he knows he could.  Someone held him and told him it was okay to lose.  It didn’t mean he was no good, that he was a fraud, a failure.  Everyone has a bad day, but you bounce back and make sure tomorrow is a better day.

There were times when he hated to wake up, knowing that he had to practice again.  His feet hurt.  He’s legs felt like dead weights.  Practice isn’t fun. It’s boring. It’s tiresome and tedious.  The same move, the same intricate detail, repeated over and over until it becomes a part of him so that he never has to think about it again. His body just does it that way, as if there is no other way it could possibly happen.

It was great when his friends, when people he didn’t even know, told him he was a star.  But he knew there were other stars, better stars.  He didn’t compare himself to people who couldn’t perform like he could, but to people who performed better.  Whatever he did, it was never good enough. It could always be done better.

And so he gave up going on a date.  He came home early to go to bed when his friends were out late.  He woke up early to practice when his friends slept in. 

They all thought he was a natural, that it just magically happened that his body moved so swiftly, so gracefully.  He saw his awkwardness, the fine distinctions that separate the good from the great.  He knew that a fraction of a second made the difference between the winner and the rest of the field.  He feared that if he didn’t win again, his friends would realize it too.  They would no longer see him as the natural, but as a member of the chorus, an indistinguishable voice.  He laid awake at night, scared to death he would let them down.

He practiced as his body burned, as blood flowed.  He couldn’t tell where the blood came from without looking, as there was no longer enough feeling to realize he was bleeding.  He no longer hated the pain as he had become inured to it.  It was no longer pain, but just how he felt.

There he was, on the big stage. Thousand, maybe millions, watching him.  The thousand of hours, the sacrifice, the love of his family and friends, all laid out for the world to see.  And he pushed with every ounce of his being to make this the best he ever did.  And so did the others around him.  He came up short. He watched as the others were in front of him, and he knew what that meant.  As hard as he wanted to, he couldn’t change it.  It was over.

The athletes competing in the Olympics are among the most select group of human beings that could possibly be. They have dedicated themselves beyond the imagination of almost every other person, and have achieved extraordinary success.

Behind them, there are another hundred athletes vying for their chance to be on the big stage, to prove themselves worthy.

We only think about the guy who wins the gold medal.  Every athlete there is amazing, having excelled beyond almost every one of their peers through their effort, sacrifice and dedication. Yet they are the Olympic losers.

Update: Via Ed at Blawg Review, a little known fact that Olympians who finish between fourth and eighth get a certificate.  The is a reason it’s a little known fact.  After all, what’s the big deal about the 7th best in the world at something.  How many people reading this are 7th best in the world at something.  Show of hands?

A recurring conundrum involves police confrontation with disabled citizens.  It happens. Regularly. And the deaf are particularly problematic, as the first thing a cop does is shout a command.  There is nothing less useful when addressing a deaf person than to scream a command, but that’s invariably the first thing a cop does. The second usually involves pain.

The problem arises out of ignorance. A cop assumes anyone he confronts to be “normal,” in the sense that they have all senses firing as expected.  Certainly, there is nothing terribly out of the ordinary for a person to be deaf (or blind, or psychologically impaired, for that matter), yet cops presume everyone to be able-bodied and minded in all respects, upon pain of, well, pain. It may be wrong, but at least it’s somewhat understandable. 

When it came to Lashonn White, however, there was no excuse.  From KIROTV:

Late in the evening on April 6, White said she called for police assistance after a guest reportedly attacked her in her own apartment.

Deaf since birth, White used a special video-equipped phone, connected to a TV and a Web camera, to call 911. A certified American Sign Language interpreter on the other end verbally relayed White’s pleas for help to a Tacoma police dispatcher.

So which gave it away?  The special 911 video system? The ASL interpreter?

On the 911 calls, White herself made it perfectly clear.

“I’m deaf.  I can’t hear if they’re out front knocking or whatever … I can’t—are they going to the front or back? Where are the police at?”

Or maybe it was that White specifically advised the dispatcher that she was deaf. That should have nailed it down, and it did.

Computer-aided dispatch (CAD) logs show Tacoma police officer Ryan Koskovich and his partner, Michael Young, were outside White’s apartment complex in about six minutes. 

It also reflects that officers received texts along the way stating, “Person doing the hitting is a Sophia” and “Vict. is Lashonn White.”

In addition, it appears from internal police records obtained by KIRO Team 7 Investigators, Koskovich and his partner were repeatedly given information that the victim could not hear a thing.

Unlike the many instances where the police come in “blind,” unaware of a disability or otherwise unable to discern an issue that removes a person from the anticipated norm, the cops responding to White’s 911 call were expressly advised that their victim was deaf.  Short of dropping an ASL interpreter from the sky into the mix, there was nothing more the victim could have done to make clear that she was deaf. Nothing.

And still…

Within seconds of running outside to meet police, Officer Koskovich pulled his Taser and fired a two-barbed electric wire into White’s ribs and stomach.

“All I’m doing is waving my hands in the air, and the next thing I know, I’m on the ground and then handcuffed. It was almost like I blacked out. I was so dizzy and disoriented,” White said.

Witnesses said White began bleeding heavily from her knuckles and the right side of her face swelled up immediately after she hit the pavement following the Taser jolt.

As is required by CYA policy, the police having massively screwed up by nailing the victim, the deaf victim, having been told she was deaf, they arrested White for assaulting the pavement with her face.  The police then prepared official reports to justify themselves.

Officer Koskovich and his partner submitted nearly identical descriptions of the arrest in their reports.

 Koskovich wrote in part: “I yelled for White to ‘stop’ and held my right hand up to signal for White to stop. White ignored my commands.”

He added, “White was making a loud grunting noise, had a piercing stare in her eyes and had a clenched right fist in the air.” 

Ah yes, the loud grunting noise and piercing stare of the deaf. Reason alone to tase her.  After all, that clenched fist posed an immediate thread to their lives. Something had to be done.  And still, the problems for White weren’t over.

Tacoma police arrested Lashonn on two criminal charges, simple assault and obstruction of a public servant (law enforcement officer). Then they carted her off to jail. She spent 60 hours there – also without an interpreter- before a city prosecutor reviewed her case and asked that charges not be filed at all.

There is a clear duty to provide a deaf arrestee with an ASL interpreter as soon as possible, and White requested one to no avail. From what appears, White was never provided with an interpreter at all, and had the city prosecutor not determined that charges should not be filed, she would have remained detained in silence.  Why she was not arraigned on the requisite CYA charges within 24 hours remains a mystery, as does why it took 60 hours for a prosecutor to decide to toss the case, eventually causing her to be released.

On the one hand, this might be viewed as yet another example of why the victim of a crime might want to give serious thought to calling the cops. After all, isn’t it bad enough to be victimized once?  But the snarkiness aside, there are times when a person requires the aid of the police, and does everything within her power, and indeed effectively, to communicate to the cops that there is a special circumstance that alters the standard police operating procedure of shouting commands and expecting citizens to be obsequious.

There is absolutely no excuse for what happened here. No one should have to risk this treatment when seeking the assistance of the police, but that they caused such harm to a deaf woman, and then exacerbated their harm by lying and covering it up is utterly beyond comprehension.  They knew she was deaf, and couldn’t have cared less.

There may be no sign over the Chittenden Regional Correctional Facility in Vermont, but for pre-trial detainees, a sign might have read “arbeit macht frei,” according to the Second Circuit in McGarry v. Pallito.  Barrington Parker, writing for the court, reversed a lower court ruling that the jail could force detainees to work because it was good for their rehabilitation, as a violation of the Thirteenth Amendment to the Constitution, prohibiting involuntary servitude.

McGarry, a pro se defendant, was arrested in December, 2008 on unspecified “charges stemming from a domestic dispute,” and released in June, 2009, when the charges were dismissed. He was held in Chittenden, where he was given a choice:

McGarry alleges that in mid-February 2009 defendants directed him to move to House 1 and required him to work in the prison laundry over his repeated objections. He alleges that he had no choice because defendants told him that his refusal to work would result in his being placed in administrative segregation or “put in the hole,” which, he alleges, involves lock-up for 23 hours-a-day and the use of shackles. McGarry further alleges that defendants told him that he would receive an inmate Disciplinary Report (“DR”) if he refused to work, and that even minor DRs affect when sentenced inmates are eligible for release.

[T]hey contend it was objectively reasonable for defendants to believe they could compel pretrial detainees to work because the work program advances a legitimate interest in rehabilitation.

What legitimate purpose exists in rehabilitating presumptively innocent people is never addressed and remains a vexing question.

McGarry brought suit under §1983, arguing that this was involuntary servitude, prohibited by the 13 Amendment, passed after the Civil War to bring slavery to an end in the United States. He was smacked in the district court by Mag. John Conroy.

The Magistrate sua sponte concluded that McGarry’s Thirteenth Amendment allegations were barred as a matter of law because being forced to work in the laundry was “nothing like the slavery that gave rise to the enactment of [the] Amendment.” Finding that McGarry’s “laundry claim” failed “to allege labor that was akin to African slavery,” (internal quotation marks omitted), the Magistrate recommended dismissing his claim and denying leave to amend, holding that any other outcome would “trivialize the pain and anguish that the Thirteenth Amendment sought to  remedy.”

For those unaware, there aren’t many involuntary servitude claims made these days.  Judge Parker (who, not that it means anything, happens to be African American) rejected this view of the limitation of involuntary servitude.

The Thirteenth Amendment provides that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII, §1. Shortly after its passage, the Supreme Court held that the Amendment “is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.” Civil Rights Cases, 109 U.S. 3, 20 (1883). Contrary to the district court’s conclusion, it is well-settled that the term “involuntary servitude” is not limited to chattel slavery-like conditions. The Amendment was intended to prohibit all forms of involuntary labor, not solely to abolish chattel slavery. See Slaughter-House Cases, 83 U.S. 36, 69 (1872) (“The word servitude is of larger meaning than slavery . . . .”)

The lower court’s comparison to slavery would have effectively made it impossible to maintain any claim under the 13th Amendment, as pretty much any forced labor today falls far short of slavery and “trivialize[d]” its “pain and anguish.”  As much as someone may gripe about forced labor, it’s not slavery.

But, as the Circuit held, the prohibition isn’t limited to the institution that remains one of the most disgraceful in our history, but recognized that far less dehumanizing servitude falls within its ambit.  The argument is regularly made that the government compels citizens to perform involuntary labor, often with regard to lawyers (ranging from compelled pro bono to forced indigent assignments). 

This decision breathes some life into these arguments, though I doubt it suffices to undermine the idea that lawyers, given the monopoly to represent others, can’t be held to a requirement to give back some of their time in return.  However, as to forced indigent assignment, the argument seems far stronger.

As for pre-trial detainees, who are commonly required to work during the time they are held in jail awaiting trial, this decision is huge.  While the rationale put forward by Chittenden doesn’t withstand scrutiny, the fact is that detainees are not convicts, and are merely warehoused pending the outcome of their charges. They didn’t ask to be there, and they are under no duty to provide compelled labor as well as their loss of freedom.  

Jails have long enjoyed the benefit of forced labor from their inmates (even the name inmates as applied to pre-trial detainees rankles), both to perform the jobs needed to maintain a jail on the cheap as well as keep them busy to avoid the “idle hands” dilemma.  Good for the jail. Not so much for the pre-trial detainees, although it would not be surprising for some to prefer to work, as some find it better to do something than sit around for months, if not years, with nothing to do.

Regardless, it’s about time that pre-trial detainees be recognized for what they are, people who have been found guilty of no crime and who enjoy the presumption of innocence.  It’s bad enough that they suffer the loss of their freedom.  It’s about time they were freed from involuntary servitude.