Sixteen years ago yesterday, TWA Flight 800 went down off the southern coast of Long Island.  The official explanation was that a fuel tank exploded. 

It’s not true.

I know because I was a witness, driving over the bridge from Westhampton to Dune Road with my daughter and her friend in the car, having just gotten them ice cream cones.  I saw what happened. At the time, I had no idea that the explosion was an airplane.

It appeared to me to be fireworks. I said to the girls, “look, someone is shooting off fireworks” and pointed to the sky. We continued over to drive. Shooting fireworks are fun enough to point out to children, but that’s about as far as it goes. As the emergency vehicles later swarmed Dune Road and the beach, I learned that it was TWA Flight 800.

I knew no one on the plane. I had no horse in the race. I saw what I saw.

I told the government. I was thanked for my cooperation, and never heard from anyone again.

There are others who saw what I saw.  Some people have theories about what happened. I do not. I offer no explanation.  A reporter friend once challenged me to explain away the government’s evidence to support what I saw. I declined. I have no interest in explaining away anything.

I saw what I saw.  Sixteen years later, I still saw what I saw.

When the Supreme Court botched the opportunity in  Connick v. Thompson to impose a duty on prosecutors to demonstrate a  passing competence, it enshrined ignorance of the law as the perfect excuse. Not for you or me, but for prosecutors.  Apparently, Steve Cooley, the Los Angeles District Attorney either didn’t get the memo or, more likely, is so filled with the hubris of office that it could be safely ignored.

You see, the admonition of the Supremes was that the prosecution had to adhere to the rule of Brady v. Maryland, to the extent such a rule could be discerned from Wild Bill Douglas’ modest proposal. Jamison Koehler puts it succinctly:

Brady v. Maryland, 373 U.S. 83 (1963), is a rule of fairness and minimum prosecutorial obligation, not a discovery rule. It requires the production of information, not specific documents. It covers any information that tends to cast doubt on the defendant’s guilt with respect to any essential element of any charged count; any physical evidence, testing or reports tending to make guilt less likely. It encompasses problems with making an ID and any information that tends to support an affirmative defense or that tends to case doubt on the admissibility of the government’s evidence.  Inconsistent statements by government witnesses are covered.  So is any information that relates to the potential health or physical impairment of any witness. The government must disclose any information relating to potential witness bias, including benefits received by a witness in exchange for his cooperation with the government.  It must also disclose any information related to a witness’ dishonesty or criminality and any instances of misconduct or abuse of authority by a police officer.

Last week the ACLU of Southern California and the firm Bird Marella filed suit seeking to prohibit the Los Angeles County District Attorney’s Office from enforcing its “Special Directive 10-06,” a policy memo dictating how the office’s hundreds of prosecutors are to treat exculpatory evidence in the tens of thousands of cases the prosecute. You can read it at the ACLU site or here.

The suit alleges that far from assuring compliance with constitutional obligations, the Los Angeles County District Attorney’s Office policy, if followed, violates those obligations. In fact, it purports to require that line prosecutors violate the constitution.

Impeachment Evidence: The policy regulates the DA’s “Brady Alert” system, a database that collects information impeaching the credibility of law enforcement officers and government witnesses. The DA’s Office touts this system as assuring discovery compliance, but the lawsuit — and the attached Special Directive 10-06 — suggests that in fact it is a systematic justification for withholding discoverable impeachment evidence (that is, for you non-lawyers, evidence that can be used to question the credibility of a witness). For instance, as the suit alleges and the Special Directive shows, the DA’s Office only includes information about witness credibility if it believes that information is supported by “clear and convincing evidence” — a higher standard somewhere between preponderance of the evidence and beyond a reasonable doubt. But that’s not the law — a prosecutor doesn’t get to withhold impeachment evidence because he or she doesn’t credit it.

Materiality: The policy purports to permit prosecutors to withhold exculpatory material that they deem not “material” — that is, not likely to change the outcome of the trial. But that’s not the standard for what prosecutors are obligated to turn over — it’s the appellate standard for determining when a discovery violation is so prejudicial as to require reversal of a conviction. Using that as the standard for what prosecutors should turn over is the equivalent of saying “you may withhold evidence if you can get away with it.”

At his family law marketing blog, Divorce Discourse,  Lee Rosen one-ups me on the digital snark-o-meter in advice for young lawyers starting their law practice.

She calls me and wants to talk about getting set up.

“Do you have any clients?” I ask.

“Not yet,” she says, “But I’ve got a plan, so I want to talk to you about making sure I’ve got everything covered when I get started,” she continues.

I explain that she needs one thing and only one thing right now. She asks what I mean.

“You need a phone,” I tell her.

She’s not satisfied. She wants to talk about office space, malpractice insurance, a laptop, and a website.

“Do you have a phone now?” I ask.

“Yes.”

“Then you’re good to go,” I tell her (I should just hang up at this point, but I’m a glutton for punishment).

Way back when, before there were non-practicing lawyers desperate to cash-in on the young lawyers who want to start their own practice by offering their consulting and marketing services with a lengthy list of all the critical things a lawyer absolutely needed, lawyers started practices.  They just did.

Lee is trying to make a point, even if some might prefer to quibble about details. He’s not saying that it’s a bad thing to have an office, a laptop, a website and especially malpractice insurance. He’s saying that these things are not prerequisites.

What Lee is saying is that what makes a practice is clients. Get clients and everything else follows. Why? Because it’s the clients who pay you legal fees, and it’s legal fees that pay for the office, a laptop, a website and especially malpractice insurance. 

But you do need a phone.  Without a phone, the client cannot contact you. If the client cannot contact you, you cannot make an appointment to meet whereat you can impress the client with your legal acumen, giving rise to the client’s retaining you with the payment of legal fees.  And as already known, these fees can be used for the purchase, lease or other acquisition of all the cool accoutrements of a solo practice.

This isn’t rocket science, though it’s been made to seem that way.  There are pre-printed lists of what a young lawyer needs to acquire.  There are hot debates over the amount of money a lawyer needs to have in the bank before starting up.  There is the critical issue of the logo.

If the issue were posed as a philosophical debate, it might be best put this way: does a lawyer with an office, a website and a logo, but no clients, have a law practice?  Does a lawyer with a client but not office, website or logo have a law practice?  The answer is self-evident.

Lee’s bigger point, however, isn’t philosophical at all.  It’s in counterpoise to the many voices informing lawyers that they cannot start a practice without having checked off the majority of the items on their laundry list.  Each item on the list costs money.  And as one wanders the aisles of Best Buy looking at the latest technological wonder without which an office cannot exist, the inchoate solo practitioner becomes increasingly poorer for the effort.

But, what about…

Office space? She can rent or borrow a conference room for her meetings.

Malpractice insurance? Until you have a client, you don’t need it. Once you’ve got a client, then take some of that money and buy it—it’s easy—they have really nice salespeople (I bet you can get them to buy you lunch). Plus, if you don’t have any assets, buying insurance might not even make sense yet.

Laptop? Get a client first. You can pick up a laptop at Best Buy in 20 minutes. Plus, you already have a laptop, right?

Website? Go get a client and stop worrying about the website. If you insist on building one, then do it with SquareSpace  while you’re watching TV one night.

A paralegal? You’re kidding, right?

A copier? You’ll find these located at FedEx stores and elsewhere. They’re just sitting there waiting for you.

Practice management system? What practice? Get a few dozen clients, and then you’ll have something to manage.

I could go on and on explaining why you don’t need to worry about all this stuff. Bottom line: you don’t need to worry about all this stuff.

While a very real issue was raised about the need for malpractice insurance by  Bruce Godfrey in the comments, as it’s not only for the benefit of the lawyer but for the security of the client, the point remains sound.  It’s a point that others, myself included, have tried to make before. You may want all the stuff on the laundry list.

You may feel more “real” if you have most of it.  But you don’t need it.  And when you aren’t generating revenue, and don’t have money to burn, focus on need rather than want, or desire, or cool, or any of the other factors that have somehow replaced reason in the minds of young lawyers.

Thirty years later, things will change to some extent, but in another way, they never change.  If anyone, one’s grasp of the critical distinction between want and need becomes more acute.  The financial demands increase beyond your wildest imagination, and every dollar thrown in the toilet on unnecessary stuff is a dollar that isn’t available for things that matter.  Sure, you reach a point of comfort where you have the luxury of buying whatever you want, but the culture of frugality lasts a lifetime, and will always serve you well.

There is, however, one crucial difference between Lee Rosen’s view and mine. HIs post shows an image of an iPhone.  While you may need a phone, any type will do.

Love guns or hate them, the issue is settled that a person has a fundamental right to possess a gun within his home for self-defense. And that right of self-defense means that when there’s a knock on a door in the middle of the night in a neighborhood that isn’t the safest in town, 26-year-old Andrew Lee Scott was fully within his right to answer the door with gun in hand.

And he lost his life for the exercise of a fundamental right.

From WESH.com in Orlando :

In  an op-ed in the paper which shall not be named (but continues to bill me three months after I canceled my subscription), Dan Markel and Eric Miller noted the imposition of punitive conditions as part of pre-trial release.

To be sure, the presumption of innocence is not a guarantee against pretrial detention or other restrictions on liberty. As the  Supreme Court has acknowledged, a defendant’s pretrial freedom can, upon a hearing, be limited in various ways when it comes to addressing substantial and reasonable fears having to do with flight risk or danger posed to the community (or danger to the judicial process itself, like in cases of witness tampering). So we don’t dispute that defendants can be, say, monitored by tracking devices while they are released.

But flight risk and crime prevention don’t justify bail conditions requiring book reports or bowling, which have far more to do with punishments or moral education techniques. While such sanctions could be permitted after conviction, they are flat-out unjustified before adjudication.

Of course, they also note that pre-trial release conditions aren’t the sort of things defense lawyers tend to make a big stink about.

Unfortunately, the vast majority of these improper release orders fly under the radar. Indeed, the use of bail conditions as a means of engaging in low-level punishment and rehabilitation is more widespread than is generally understood.

In the first place, defendants are usually sufficiently thrilled to be free from custody as to be unwilling to do anything that risks alienating the judge or causing a change of heart. If it means they can’t toss back a cold one, it beats the hell out of the next 18 months in the alternative general population.

Moreover, few defendants with retained lawyers can afford to have them fight phantom battles over transient issues. And indigent defenders struggle for funds to provide basic defense, no less fight for relative trifles. And then there’s judicial paternalism, where kids who grow up to be lawyers who lick enough envelopes at the party HQ to become judges, think they’re imbued with such magnificent moral bearings as to dictate righteousness to the huddled masses.

This judicial paternalism persists in part because state and municipal judges, who handle the overwhelming number of criminal cases, face less public scrutiny than federal judges. But a bigger problem is that there is no widely established right to counsel at the bail stage. Accordingly, the judge gets to interact directly with the defendant, without the interference of “pesky” lawyers. Even when defense lawyers are present, they don’t make a stink over these improper conditions to avoid the risk of having bail for their clients denied altogether. They figure that at least the defendants will get out of jail, rather than having to cool their heels inside.

But the point, that the imposition of conditions that are either punitive, particularly when judges get imaginative and decide to ram their personal vision of morality or behavior modification down the throats of presumptively innocent defendants, or utterly without justification based on the facts of the case or concerns for safety of the community, is pervasive, is well taken. 

Indeed, under the broad discretionary provisions of the  Bail Reform Act of 1984, courts slough off the responsibility of determining the propriety of individual conditions to the pre-trial services officer, who then requires the released defendant to adhere to “standard conditions” that bear no legitimate connection to anything under the sun. For example, drug testing for defendants who are not accused of crimes relating to drugs and have absolutely nothing in their background to suggest drug use is common. It’s not that the defendant’s personal circumstances suggest any need for it, but it’s just what they do.  And, for obvious reasons, no rational defendant would risk a violation of pre-trial release by refusing, especially since they have no fear of passing with flying colors.

Naturally, Dan Markel caught flack for his position.

I also received a couple emails from judges who identified with those folks we criticized, arguing in particular that addressing drug addictions or imposing curfews or alcohol consumption was an important component of ensuring public safety. FWIW, I can’t speak for Eric off the cuff here, but my quick sense is that the cases mentioned by the judges I heard from are *not* related to our critique. We weren’t saying such restrictions on alcohol or curfew or drug treatment were never reasonably imposed. Rather we were concerned that they sometimes aren’t related to the crimes or the offenders but were still imposed.

I get the sense that Dan gets emails from different judges than I do.  Whether such conditions are truly “an important component” or fall under the banal “better safe than sorry” approach to pre-trial release, despite the statutory mandate that conditions be the least onerous possible within the framework of release, is impossible to tell without details (from both sides, by the way).  That said, it ignores the fact that such conditions are routine, and nobody makes a peep.

It’s the rare case when anyone bothers to give much thought to the conditions imposed for release. Usually, it’s the outlier case, where a defendant is ordered to take his wife to Red Lobster, that gives rise to a few laughs and some commentary. The other situation is the high profile case, such as George Zimmerman, raised by Dan in his op-ed.

Drug testing, desisting from alcohol, as well as attendance at rehabilitation programs and mandatory job training programs have become all-too-familiar requirements of pretrial release, even for cases, like Mr. Zimmerman’s, that are unrelated to substance abuse.

This drew a  fascinating reaction from Hofstra lawprof Monroe Freeman, who peremptorily dismissed the motion by Zimmerman’s lawyer, Mark O’Mara, for recusal based on Judge Kenneth Lester’s “gratuitous” and “disparaging” remarks toward Zimmerman in deciding release.

The motion should be denied.  As the Supreme Court held in Liteky, the judge is supposed to form opinions based on the proceedings before him.

The  Liteky decision was a true gem, holding that neither personal bias nor prejudice gives rise to recusal unless it’s “wrongful or inappropriate.”  And this is the sort of blind judicial deference that gives judges the sense of omnipotence to require a defendant to write book reports as a condition of release.  So shut up, pee in the cup and be happy you’re not in the hole until we get around to trying you.

Rarely do three words capture the problem so clearly, and Andrew Cohen nails it with the phrase “ineffective assistance squared” from his Atlantic Monthly post.  And as a result, Texas is trying to put Yokamon Hearn to death this Wednesday.

The problem isn’t that Hearn is an innocent man. He’s not. The problem is that it’s defendants like Hearn who are placed squarely in the position of testing whether the legitimacy of the machine of death is running the way courts say it must if a constitutional death penalty can exist.  And while the machine is moving along as fast as it can for Yokamon Hearn, courtesy of the mechanics at the 5th Circuit Court of Appeals who manage to keep the gears grinding despite having refused to read the instruction manual, it’s clear that the machine is horribly broken.

At the penalty stage of Hearn’s trial, the prosecution did a bang up job of showing everything bad about the man they could dredge up.  The defense, on the other hand, couldn’t be bothered.

Yokamon’s jury learned about violence, more violence, a history of burglaries, and, in sharp contrast, exceedingly superficial and inaccurate mitigation during his sentencing proceedings. Yokamon’s lawyers were the reason the jury learned almost nothing about his life. They failed to conduct a minimally adequate investigation into Yokamon’s life history when, had they done so, they would have uncovered a wealth of compelling mitigating evidence, including:

1) evidence that Yokamon’s parents were severely impaired throughout his life;

2) that he was the victim of neglect at the hands of his parents;

3) that relatives who were portrayed at trial as unflinchingly committed and capable of caring for Yokamon were not so;

4) that he had a history of mental health problems, including suicidal ideations, as a young child and that his emotional problems stemmed from his parents’ inability to parent him;

5) that he was exposed to risk factors commonly associated with brain damage;

6) that Yokamon, in fact, suffered from brain damage;

7) that he exhibited severe impairments in day-to-day functioning consistent with brain dysfunction. [Numbers added for reference]

Maybe they were sleepy. Maybe they didn’t care. Maybe they were just lazy or sucked. Regardless, a life was on the line, and the representation was so fundamentally deficient as to be a farce. Had the defense done its job and present evidence in mitigation, there was certainly strong reason to believe that at least one juror would have concluded that Hearn didn’t deserve the death penalty.

Of course, the remedy for such outrageously deficient representation at the trial stage is competent representation in post-trial proceedings.  And that’s where the “ineffective assistance squared” comes in. After all, if the defendant was provided an incompetent defense at trial, why should his defense counsel be any less incompetent later.  And so Hearn got double burned.

As alarms go off everywhere but Texas, the Supreme Court’s ruling in Martinez v. Ryan last March likely comes to mind.  “Ha,” you exclaim. “But that’s covered,” since the Supremes held that capital defendants like Hearn shouldn’t be denied substantive review of ineffective assistance claims because of, well, ineffective assistance. Using that rarest of traits in Washington, logic, Justice Kennedy’s opinion expanded the right of habeas review  so that the defendant who would have otherwise lost his opportunity for review of ineffective assistance is not procedurally barred because of ineffective assistance. Scalia, naturally, dissented, because somebody has to take one for the team.

Unfortunately, the jurisdiction of the United States Supreme Court ends right about the Texas border, where the 5th Circuit has decided that Martinez may be fine for the United States, but has no place in the Republic of Texas.

What the 5th Circuit did, in Ibarra v. Thaler, was to interpret Martinez so narrowly as to make its holding inapplicable in virtually any other case. Even though the justices in Washington had created an exception to “protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel,” the 5th Circuit said that Texas’ appellate procedures vitiated the need for such an exception. Take a few minutes to try to read the Ibarra decision. Look at how hard the 5th Circuit’s majority had to twist to avoid the Supreme Court’s precedent — and to avoid giving Hearn the relief to which he is entitled.

No doubt the fine folks who despise activist judges will be marching on the circuit any day now with torches and pitchforks in hand.  Any day now, as long as it’s after this Wednesday, when Hearn is scheduled to be executed.  Of course, Texas Governor Rick Perry can fix the problem, since he so dearly wants to clean up the mess in Texas before putting its defendants to death. It’s a shame he keeps figuring out there’s a problem too late.

Even ardent supporters of the death penalty, despite its cost, or the fact that it fails to serve as a deterrent, are concerned that it be done properly. Usually, that means that people, like Cameron Todd Willingham, aren’t mistakenly put to death in a rush to beat revelations of innocence. But it’s the guilty, like Yokamon Hearn, whose cases test the ability to determine whether the machine works the way it’s supposed. to. That includes effective assistance of counsel at each stage, and courts that don’t shut its doors to make sure they never hear about the machine breaking down.

Wednesday.  After that, the discussion is purely academic, and another dead body will be buried in the killing fields of Texas justice.

Update:  The Fifth Circuit unanimously /files/66432-58232/certpetition.pdf”>done and served. Response is due 9 a.m.  The TL:dr argument: Ibarra Got It Wrong.

Update 3: The United States Supreme Court denied the stay and petition for a writ of certiorari on Wednesday, July 18, 2012. Yokamon Hearn will die.

H/T Kamikaze Kase

When Frenchman, Baron Pierre de Coubertin, came up with the idea to create the modern Olympics in 1894, there were nine sports included: athletics, cycling, fencing, gymnastics, weightlifting, wrestling, swimming, tennis and shooting. Much has changed since then, as reflected by the push to include ballroom dancing as an Olympic sport, rivaling such others as synchronized swimming.

But fencing was an original, and one of only four events to have been featured since the first modern Olympics in Athens in 1896. And yet, in the 2012 Olympics, an inexplicable omission remains.

The fencing lord giveth and the fencing lord taketh away.

Last month, at the fencing world championships in Kiev, Ukraine, the U.S. men’s épée team won the gold medal, its first. Despite that accomplishment, the foursome won’t be able to take that momentum — and the group dynamic — to the Olympics this summer.

As a rule, the International Olympic Committee takes one team from men’s and women’s fencing out of the mix every four years, as a means of limiting the medals the sport can receive. And for the 2012 Games, men’s épée drew the short sword, as it were.

The fencing lord?  Hardly. Try the International Olympic Committee. There are three weapons in fencing, foil, saber and épée. and each has significant differences.  Yet in each quadrennial cycle, only two of the three weapons are included. Technically, this means there are ten medals for twelve events, covering both individual and team events for both genders in three weapons.

To accommodate this, a different weapon “draws the short straw” for each gender in each quadrennial cycle, so that one weapon is left out every three Olympics, but no weapon is omitted two Olympics in a row.

This peculiar situation arose initially because of gender parity, as men’s fencing included all three weapons but women’s fencing included only foil. When women’s fencing was expanded to include all three weapons, it “ate” two of the medals that had been previously available to fencing.

This wouldn’t seem to be all that much of a big deal.  By expanding the weapons for women’s fencing, the IOC need only add two additional medals and cover all three weapons for two genders. But inexplicably, this didn’t happen. Instead, they maintained the same number of fencing medals as before the expansion, forcing two events out of the Olympics per cycle.

Did the medals cost too much?  Not likely, given that medals are added for new sports with some regularity.  If they can afford to buy medals for new sports, not to mention the plethora of variations of sports such as swimming and track, it doesn’t seem that the price of gold is the problem.

For many new sports, aside from questions of whether they are sports or performances, issues arise from the need to build venues and infrastructure for their inclusion. This obviously isn’t the problem, as fencing venues are already part of the Olympics, and same strips (or pistes) as used for each weapon.

So why, in an original Olympic sport that has grown to six events in recognition of gender parity has the International Olympic Committee decided not to offer medals to include all twelve events?

No one has, to my knowledge, provided a satisfactory, rational answer.

Picture in your mind the administration of “justice” in Harpersville, Alabama.  Think slow, southern drawl telling the riff-raff how it’s gonna be, how they don’t cotton to folks “like you” ’round here, and then pretty much doing anything they please.  That’s what Shelby County Circuit Judge Hub Harrington found in Burdette v. Town of Harpersville.

When viewed in a light most favorable to Defendants, their testimony concerning the City’s court system could reasonably be characterized as the operation of a debtors prison. The court notes that these generally fell into disfavor by the early 1800’s, though the practice appears to have remained.ncd common place in Harpersville. From a fair reading of the defendants testimony one might ascertain that a more apt description of the Harpersville Municipal Court practices is that of a judicially sanctioned extortion racket. Most distressing is that these abuses have been perpetrated by what is supposed to be a court of law. Disgraceful.

It strikes this Yankee as inconceivable that there are still judicial fiefdoms in this nation that exist outside the recognized law.  And yet there are (and not just in the deep south).

The admitted violations are so numerous as to defy a detailed chronicling in this short space. The court will, therefore, attempt to enumerate only the most egregious abuses committed by the Harpersville Municipal Court and its agent for probation services, JCS:

1. Defendants placed on “probation” without an adjudication or sentencing order and/or without receiving a suspended sentence;

2. Defendants placed on “probation” with JCS only when. unable to pay the entire amount of assessed tines and court costs on the day of trial;

3. Defendants incarcerated for a probation violation (failure to pay, failure to appear, contempt of court…) without an adjudication or sentencing Order;

4. Defendants incarcerated for)l’ failure to appear in court, though only “ordered” to do so by JCS;

5. A defendants’ failure to appear or failure to pay often results in a new criminal charge with incarceration and additional fines and fees for contempt of court with no valid court order or adjudication;

6. Defendants not afforded a hearing as required by Rule 26.11 of the ‘Alabama Rules of Criminal Procedure;

7. Defendants placed on “extended” probation for many years beyond the two year maximum;

8. Defendants interminably held in the county work release program until all fines and fees are paid in full;

9. Defendants charged unconscionable fines and fees.

10. Defendants placed on “probation” are charged an initial “set up fee” of $10.00 and a monthly “probation tee” of $35.00 (arbitrarily raised to $45.00 per month at some point in time, though the Harpersville JCS contract allows for only $35.00 per month) which is charged as long as the defendant is on probation.

11. Multiple incarcerations were imposed upon the plaintiffs in the case at bar with no adjudication or imposition of sentence and fix probation violations over which the court had absolutely no jurisdiction.

12. Fines and fees charged to the plaintiffs in the case at bar reached into the thousands upon thousands of dollars.

Harpersville acknowledged that it made some “mistakes.”  That’s what it’s called when you get caught, whether you’re a criminal defendant or a municipal legal system that does whatever it pleases, law be damned.

Judge Hub Harrington (you’ve got to love the colorful name) recognized that this wasn’t merely a judge run amok, or a system that was slightly out of kilter, but a town that had a court system wholly disconnected from anything remotely resembling law in America and in utter ignorance of the Constitution.  Aside from addressing specific constitutional violations, and unearthing as yet unknown violations, his remedy went even further:

The mayor and every member of the Harpersville lle City Council shall be present in person for the hearing of August 20, 2012, and shall appear at any and all subsequent hearings in this case until final resolution, or until further Order of the court. These individuals, who are the officials ultimately responsible for the operation of the City, may wish to consult with Mr. Ward regarding the consequences of one’s failure to appear, especially when actually ordered by a court to do so.

Prior to the hearing, the mayor and every member of the city council shall have certified to this court in writing and under oath that he/she has read this Order and the depositions of Ward, Hall and Egan.

It might have been wise as well to require the mayor and council members to read and provide a report on the United States Constitution, with emphasis on why they are not exempt from its strictures.

The question remains how this apparently went on in the Town of Harpersville, County of Shelby, State of Alabama, and no one noticed until Dana Burdette brought an action seeking injunctive relief before Judge Hub.  It would appear that the town and county share a jail, Wouldn’t you think they had some inkling about what was happening in Harpersville Municipal Court?

But then the question of the private contractor for probationary services, JCS, raises independent issues. Certainly, the municipality is responsible for the performance of services by its outside contractor, but bear in mind the qualifications for an elected official in a small town stops dead in its tracks after “breathing.”  They are not required to know how to spell Constitution, no less be familiar with it.

So when they hand over their responsibilities to an outside “expert” contractor, they give no thought whatsoever to whether that contractor adheres to the requirements of law or, as was the case here, rapes the citizenry while the elected officials sit back and have a cold beer, proud of the efficient way they’re running their system.

Thankfully, Judge Hub cared enough to do the unthinkable and seize oversight of this cesspool. Why it too so long for somebody to notice, however, remains a question unanswered, and that’s not good enough in America.

So  Mashable reports that Facebook, the animal that launched a pretty good movie and an uninspired IPO that made a peculiar kid incredibly wealthy, reads your chats. And this surprises people?

The screening process begins with scanning software that monitors chats for words or phrases that signal something might be amiss, such as an exchange of personal information or vulgar language.

The software pays more attention to chats between users who don’t already have a well-established connection on the site and whose profile data indicate something may be wrong, such as a wide age gap. The scanning program is also “smart” — it’s taught to keep an eye out for certain phrases found in the previously obtained chat records from criminals including sexual predators.

If the scanning software flags a suspicious chat exchange, it notifies Facebook security employees, who can then determine if police should be notified.

Privacy and Facebook are often mentioned in the same sentence, and not in a good way.  Initially, people somehow forget that it started as a means of public dissemination of information, images and insults. This was the promise of social media, and it was meant to be social.  Nobody promised you a personal, private place for promiscuous peccadillos.

Remember MySpace?  It was the leader in the space before Facebook suddenly appeared, and quickly devolved into a cesspool of child predators. Parents clamped down on their children’s newfound bestest friends, ordering their children to delete their page and trust no one.  That adults seeking children would flock there was no surprise. Same reason as why Willie Sutton robbed banks.

But Facebook never made any pretense of caring about your privacy.  It doesn’t charge you to use it, and had to monetize itself somehow, using whatever nuggets you gave it to sell to marketers. And you knew this. You did.

It may feel as if you own your Facebook page, with some inherent right to control not only your fate, but your personal information, but only the most foolish were unaware of the business model.  That we now learn that someone developed algorithms to detect bad things happening should come as no surprise.  It may feel like ours, but Mark Zuckerberg just lets us hang out there as long as we don’t piss him off. 

The explanation is neither hard to deduce nor hard to appreciate.  Facebook doesn’t want to suffer the same fate as MySpace, or become a facilitator for the worst the internet has to offer.

Facebook works with law enforcement “where appropriate and to the extent required by law to ensure the safety of the people who use Facebook,” according to a page on its site.

“We may disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law. This may include respecting requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law under the local laws in that jurisdiction, apply to users from that jurisdiction, and are consistent with generally accepted international standards.

“We may also share information when we have a good faith belief it is necessary to prevent fraud or other illegal activity, to prevent imminent bodily harm, or to protect ourselves and you from people violating our Statement of Rights and Responsibilities. This may include sharing information with other companies, lawyers, courts or other government entities.”

While people seem to forsake privacy on the internet in the hope of public adoration and the chance to become the next Justin Bieber (or maybe just get a date), they simultaneously want to believe that they can pick and choose what’s public and what’s entirely their own at their convenience.  Facebook never told you that was the case. In fact, Facebook has always been pretty open about the fact that your use of their facilities left you at their mercy.

While the “do it for the children” rationale tends to conveniently justify pretty much everything these days, the issues that persist when it’s used to back a law are very different than when a private entity decides that it would rather not take a risk.  Facebook is a corporation, not a government entitlement program.  It gets to make its own choices as to what it allows to go unnoticed. And noticed. We’re just guests in their home.

The hard message is that nobody makes you set up a Facebook page. Nobody forces you to put that drunk picture online, or update your status that you just robbed a bank.  And certainly, nobody promised that you can troll for children, or loose women, or drugs, or contract killers, without anybody noticing.

Not surprisingly, Facebook has the technological know-how to accomplish its purpose in a relatively unobtrusive way.

When asked for a comment, Facebook only repeated the remarks given by Sullivan to Reuters: “We’ve never wanted to set up an environment where we have employees looking at private communications, so it’s really important that we use technology that has a very low false-positive rate.”

You have to say something that sets off alarms before an actual person takes a look. Don’t want anybody looking? Then don’t say anything that would be sufficiently compelling to a computer program that it comes off as pretty bad or dangerous.  Or if you can’t control your impulses to that extent, do use Facebook.  Or if you can’t manage to exist without being an integral part of social media, pretend your Zuckerberg and come up with your own alternative.

But you don’t have a right to enjoy the largesse of a private entity, use its facilities, be part of its fun, while expecting that it doesn’t have the authority to keep its house clean.  And just so you know, anybody stupid enough to believe that one can enjoy the wonders of social media while maintaining privacy is fooling themselves.  It was never private, and never meant to be private. If you want to keep your personal information, your conversations, to yourself, take a walk and have a nice chat face to face rather than Facebook to Facebook.  Your privacy is your business, not Facebook’s.

Academics on Long Island is like football in Texas: something worth fighting over. And having been around long enough to watch babies have babies, you tend to see the same fights revisited as a new generation discovers the same problems their parents fretted over. Except they forget Santayana’s admonition.

In a Newsday op-ed,  Lane Filler revisits the plight of the student who, at least in daddy’s eyes, is smarter than the others.

Deciding what to teach children based on how old they are makes no more sense than basing their lessons on how much they weigh, or how tall they are.

The folly of relying on such irrelevant metrics was highlighted this week when a national study was released by the Center for American Progress. According to the researchers who compiled it and the media that reported on it, the study showed kids find school too easy. But that’s not the important conclusion to be drawn from the data, and that interpretation is so political it makes my head not just swim, but drown.

It’s also not quite what the study shows. Rather, some kids find school too easy. Others, too hard. Still, others just right. Apparently, the tale of Goldilocks wasn’t bedtime reading in the Filler household.

Welcome to the current educational model: “No Child Can Be Allowed Ahead, or Left Behind, So Let’s Just Sit Here.”

Have you figured out the gripe yet? Of course you have, as it’s impossible not to see this freight train barreling down the tracks.  Crash:

Years ago, students were divided into classes by aptitude and competence, so they could learn at the pace best for them. This has largely fallen by the wayside. Too many of the “gifted” kids came from white families with money. And besides, we now know that all children are special and talented, even if only at staring uncomprehendingly when faced with a curriculum beyond their ken.

So what happens now? Everyone has the same lessons, the kids who are falling behind get special help, and the gifted kids get screwed.

Actually, years ago schools consisted of one room. Children of all ages sat together, and the teacher roamed about, from youngest to oldest, smartest to, well, not smartest, teaching as much as she could. It was always a “she” back then.

But the smear of the parents of Slackoisie children couldn’t be made more clear. The idiot children are “special and talented,” Filler’s pen dripping with contempt and ridicule, in order to make the only worthwhile point, that it’s the screwed gifted-children who are really special.  And why would he say such a thing?

Last year my daughter tested in the 92nd percentile of eighth graders in Language Arts. But she was in the fifth grade. In math she’s only just above average, but again, for a class three years older. By law and practice, my daughter is not allowed to learn in school.

And the alarms go off. The gravamen of the editorial is that Filler’s fifth grade daughter didn’t receive the level of instruction he thought appropriate to develop her brilliance.  For the record, anecdotal studies show that 94% of all Long Island parents are absolutely certain their little darling is gifted, far above the median, and in desperate need of education that leads directly to freshman year at Yale.

There’s nothing new about Filler’s gripe. Public schools are geared toward the average student of necessity. Although every parent believes the school should adjust their curriculum to meet the personal academic needs of their precious baby, The logistics are problematic, there being far more students than teachers such that each child deemed gifted by daddy can’t have a teacher all their own.

Of course, nothing stops a parent from supplementing their child’s education, whether by the wealth of special programs offered to gifted students (it’s a cottage industry on Long Island, since parents of means spare no expense to compensate when it comes to their baby), or spending an hour doing calculus around the dinner table.  But why should parents have to exert such energy when they’re paying ridiculous taxes to schools to provide a boutique education geared specifically to each child’s individual needs?

In a few years, Filler will find out that students are divided up by skill level, with some herded into special ed classrooms and others into advance placement. This never happened in fifth grade, but accuracy tends not to guide the parent scorned.  If you think his head is drowning now, just wait until his daughter is told she’s “not quite right” for AP physics, forced to wallow with the groundlings in mere Honors courses.

This attitude, of course, is nothing new. Nothing new at all. Filler replays the boomer demands that gave rise to the Slackoisie, the entitlement of their special children to a bespoke life, which in turn left them sitting on the basement couch munching Cheetos and wondering why the rest of the world doesn’t recognize how special they.

But that’s not why Filler’s op-ed deserves to be called out, and why Lane Filler, who can barely muster enough sympathy to admit that learning disabled children should get a free appropriate public education while his gifted darling gets screwed. 

Lane Filler sits on the editorial board of Newsday.  Lane Filler gets to parlay his editorial board position into a column to vindicate his personal gripe on behalf of his daughter in a newspaper.  There are issues of consequences affecting the world, not to mention New York and Long Island, but Newsday has turned over precious column inches to a father whose baby isn’t getting all he wants for her. Since he’s got the keys to the backdoor, why not use it for his personal advantage, right?  Isn’t personal gain what freedom of the press is all about?

And now, some personal advice from a father who is a veteran of almost every battle one can fight with a school district at the polar extremes of the educational spectrum. You never stop advocating for your child, but it’s lunacy to think that schools can recreate themselves to meet the demands of every parent or every student in every instance. Public schools can’t neglect the mass in the middle to cater to the handful of gifted students, and even if they could, they’re not up to the task. Push for as much as you can get, and supplement it with whatever else you can provide.

But to air your personal issues in a newspaper, your elitist expectation that your own special child should be the center of everyone’s universe, is a whine too far. Newsday should never have published it, and you should have had the good sense not to abuse your access to fight your personal battles at the expense of a free press.  You were not only wrong, but embarrassingly so. If your daughter is truly gifted, it must have come from her mother.