For quite some time, I’ve urged (and occasionally tweaked) the Slackoisie to rise up from their gutter and overcome their parents’ well-intended mistakes to make something of their wasted narcissistic lives. But I never said it as well as this.



From your baby boomer parents, we apologize for misleading you and handing you a world that sucks.  Wrong though we may be, you can either whine about your miserable life or do something to make it better.  Your choice.

Carol D. is the on-again off-again public defender blawger at  PD Revolution has apparently been busy writing a book, an except of which appears at Jamison Koehler’s blog.  It appears to be quite cathartic, if nothing else.

Surprisingly, Kelly came to my office on the day of his appointment. He wore clean black jeans, a neat, black button-down shirt, and newish looking tennis shoes. He still had cat whiskers painted on his face. He told me that he was opening a camp for disabled children, and that his charitable work should help convince the prosecutor to reduce his charges.  As it stood, he was facing about five years in prison.

“Who can I call to verify your participation in the camp?” I asked, ready to write a name on my notepad.

“I don’t have her name memorized.”

“Of course, not,” I said.  “Perhaps you could give me the names of some of the people who help you run your camp.”

“I do it all on my own.”

“Naturally,” I said.  “Some names of the children participating in your camp, then?”

“I can’t release those records.  They’re contagious.”

“If we are going to try to use your camp to impress the prosecutor, I need something other than your say-so.  A letter from the director, even one of the kids.”

“Are you accusing me of lying?”

“No, but the prosecutor will.”

“The lady at the First Bank of Puget Sound can tell you about the arrangements.”

“Good,” I said, even though the bank was not known for its charitable efforts.  “What’s her name?”

“She has long, black hair, and she works at the one on Jefferson.  I’m not sure which shift.”

“If you want to use her as a reference, you’ll have to get me her name—first and last—and phone number.”

“What?  I’m not going to do your work for you.  That’s your job.”

“Kelly, my job is to give you legal advice and help you with your case, not to run around hunting for bank ladies with long, black hair. If you have someone that can help verify your camp for disabled children, you are in a better position to do this than I am. So, if you want to use this lady, you need to get me her name.”

“What kind of lawyer are you?  I bet you really work for the prosecutor. You’re supposed to help me, but you’re really working to hurt me—it’s like a Catch-24 situation.”

While I’m hoping this is a bit of hyperbole for fun, every criminal defense lawyers has had this conversation to some degree. The difference for a PD is that they can’t decline the representation.

But what if a variation on this theme comes after the initial meeting, after you’ve signed on to the case?  The underlying issue is client expectations.  The sophisticated client, the good, solid, hard-working criminal, is more likely to understand the system and have a better grasp of a lawyer’s functions and limits. They are a pleasure to work with, and they often get the best results because of their cooperation and assistance.

Unfortunately, we aren’t always able to represent sophisticated clients, and the ones who start out appearing reasonable and helpful don’t always remain that way as the case doesn’t progress the way they hope.  Often, they become increasingly disenchanted as the case progresses, when it hasn’t been tried and won within a month, or you haven’t overwhelmed the prosecutor by loudly announcing in court that you’ve been denied your Due Process, the judge gasping with shock and proclaiming innocence.

There’s a negative to all those TV shows where lawyers do three minute summations of platitudes strung together without a shred of evidence needed, imploring the jury to engage in reckless speculation about humanity’s frailties.  The problem is that the unsophisticated client thinks this is how it happens. When you suggest that maybe it isn’t that quick, easy and painless, they think you must be a terrible lawyer.  They may not say it to you, but that’s what they’re thinking.  That and “I wasted all this money on this terrible lawyer who isn’t doing anything to help me.”

Should you eventually win the case, or obtain a favorable disposition (which means favorable in the defendant’s eyes, not yours), much will be forgiven.  Not all, but much.  It still took too long and cost too much, and too many sleepless nights were lost to the lawyer’s failure to magically make the case disappear within an hour.  But at least you finally got it right.

The unsophisticated client never quite accepts the premise that guilt, as overwhelmingly demonstrated by this ugly stuff called evidence, usually comes back to bite them in the butt.  It’s our job, as lawyers, to make evidence go away.  Why?  Because we’re the lawyer. We’re endowed with magical powers that make these things happen. After all, if we can’t, then why are they paying us?

Before I take on a matter for an unsophisticated client (and in criminal law, we usually don’t enjoy the luxury of being able to limit our representation to only those clients who have a clear, firm grasp on the nature and process of the criminal justice system), I try to explain what I do, what they’re paying for, and that there is no magic involved.  They listen and nod in agreement. Sometimes, they even understand, at least to a point.

In the back of their head, however, remains that voice that says, “but he’s the lawyer; he’s supposed to just make all these bad things go away.”  The voice is always there, no matter how well you manage client expectations.  Get used to it, as this is the life we’ve chosen. 

Carl D. Johnson was an architect. He wasn’t a gang member or street tough. He didn’t have a long rap sheet of violence or drugs. He was an architect.  And a diabetic.  And a guy coming him from a bible study class on I-795 in Baltimore.  Now he’s dead.

Per Courthouse News, his wife, Linda, filed suit:

Johnson suffered a diabetic attack sometime after 8:15 p.m. that night, after calling a friend to tell him he was leaving his Bible class, according to the complaint in Baltimore County Court.

He suffered a diabetic attack, crashed on the I-795, and his car came to rest against the guardrail in the median near the merger with I-695.

According to the complaint, when State Trooper Davon Parker arrived and tapped on the window, and Johnson managed to lower the window, Parker pepper sprayed him in the face.

Johnson then got out of his car and Parker clubbed him at least once in the knee. Defendant Officer Loss (fnu) then arrived and whacked Johnson at least twice with his club, the complaint states.

Baltimore County Police Officer Nicholas Wolferman then arrived, whacked Johnson “at least three times” with his own baton, then he and Officer Loss “grabbed Mr. Johnson and threw him over the guardrail,” Johnson’s widow says.

Inexplicably horrible stuff.  It’s possible, of course, that Johnson did something to rile the officer, who perhaps mistook his diabetic shock for insolence.  Maybe he didn’t comply with whatever speed the officer deemed necessary.  Some cops get annoyed with such behavior.

And so there was more:

Nonetheless, after throwing him over the guardrail, the cops applied pressure points to his ears and armpits, she says. Three more cops arrived, including Baltimore County Officer Andrew O’Neill, who Tasered Johnson twice. Officer Loss then punched him in the face and the six officers managed to handcuff him, the widow says.

Eight more cops arrived, and someone took his wallet, which included a medical alert card about his diabetes. Nonetheless, the cops forcibly held him down, though he was not resisting, and was handcuffed, his wife says.

The widow claims Johnson was Tasered at least three times, while he was lying on his back, helpless, surrounded by police. He became “motionless and speechless” and was pronounced dead within an hour of cardiac arrest.

And Carl D. Johnson, architect, was dead.

“Upon information and belief, there were approximately 52 individuals that responded to the scene,” according to the complaint.

All because of a diabetic on his way home from a bible study class.

A funny thing happens once one police officer decides to use force against a person, whether deserved or not, whether necessary or not.  Once one cop turns violent, others feel compelled to join in. Whether it’s a kick, a punch or a taser, they have to prove themselves by adding a lick to the fight.

It’s not very difficult to imagine that the first officer, Davon Parker, misapprehended Johnson’s diabetic shock for contempt of cop.  He commanded, and Johnson didn’t react the way Parker demanded, so Parker needed to show him who’s boss.  That’s how cops roll.

But the 51 others? Was there not one person among them who thought to himself, we’re going to kill this guy?  Was there not one law enforcement officer who said aloud, our job isn’t to make sure one more man doesn’t make it home tonight?  Another punch. Another kick. A pepper spraying and a tasing.  What a tough bunch of cops, protecting society from an architect in diabetic shock, one after another, after another.

So Carl D. Johnson is dead, and it took 52 cops to kill him.  They must be so very proud of their fine police work, all 52 of them. How brave they are.

H/T Turley

While they don’t seem to take my gentle chiding with the same friendly aplomb they used to, I remain concerned about my good buddies at Avvo.  I know they mean well, and I know they want to do right. There’s just this profit-thing happening that impairs their judgment from time to time.  And that’s why guys like me give them a nudge every once in a while.

Granted, I think Avvo Answers is one of the worst ideas ever, both from the “legal consumer’s” perspective, as non-lawyers get free answers to questions that assure they are stupider for having asked, as well as the lawyers’ perspective, as non-lawyers come to believe that they’re entitled to free legal services upon demand.  But that’s already been discussed, and no need to harp on a sore point.

And then things went from bad to worse as Avvo decided to hop on the marketing train with its Avvocating conference, where marketers and social media gurus offered their advice on whether hot pants made a lawyer’s butt look fat.  I  wasn’t too kind about this idea either.  I feel bad about it, because I want Avvo to succeed.

Now, I learn that they’ve got a new deal in the works, with former TV cutie/lawyer/personality Lisa Bloom as their new legal advisor and analyst. Oh boy.  I suppose she’s there to give the non-lawyers someone to admire, particularly since her “blog” is called “Naked Law.”  Suggestive much?

But being a cute blond who wants to be a real celebrity despite the fact that she’s only a lawyer isn’t a bad thing. What is a bad thing, however, is writing insipid posts with stuff like this:

Hey friends!  Big news. As of June 1st, I have joined Avvo as a legal advisor and analyst, reinforcing my goals of encouraging a more informed legal consumer, making law accessible to everyone and helping people make smarter legal decisions.

You might think this all sounds lofty, right?

Well, not exactly. In fact, not at all. It sounds like a twinkie with the white goo oozing out.

As a civil rights attorney, I have spent my career helping ordinary people seek justice in their lives.  But because I have a small boutique law firm, I can only take on a limited number of cases at any given time.  The overwhelming majority of people who contact me get turned away (though I always try to find them a good lawyer).  It’s always sad when I can’t help someone who really needs answers and guidance.  So when the folks at Avvo.com told me the idea behind this Naked Law blog – providing law for the people – I jumped at the opportunity.

Or maybe that’s a bit disingenuous, considering that you hosted a show on former Court TV, wrote a couple books and spend your days twitting about your next interview. It’s awfully hard to find time to “help ordinary people” when you’re so busy trying to be a celebrity.  You could take a whole lot more cases if you stopped worrying about your next chancd to hype your celebrity.  Say, do you know Gloria Allred?

Avvo.com is truly revolutionary, and I don’t use that term lightly.  Because for the first time, ordinary people can get real lawyers to answer their questions – for free!  How does it work?  Avvo.com is a social media platform that provides consumers with free and direct access to legal (and medical!) professionals. It’s amazing to me that more than 100,000 lawyers are actively participating on Avvo.com answering tens of thousands of consumer legal questions, and embracing the Internet as a way to provide transparency to the profession.

I encourage you to become more empowered, to harness the power of the Internet to get your basic questions answered and get educated before you see an attorney.   The law doesn’t just exist for giant corporations with expensive attorneys on retainer.  It’s here for all of us.

At least this comes straight from the heart, and not from the marketing department. Much. And I’m not even touching Lisa Bloom’s first post on the Sandusky case, reflecting her very experienced lawyerly view that juries love child molesters and don’t believe victims.

Though neither of my buddies, Mark Britton nor Josh King, asked, I offer some friendly advice. Rather than try to own the twinkie niche, why not elevate the discussion with information that might actually make “legal consumers” smarter for having read something at Avvo?  I realize that David Boies isn’t much to look at, but I bet he knows a thing or two about law that might interest readers.  There are real lawyers out there who could illuminate the law, with depth and understanding, rather the spout marketing crap and the most ridiculously superficial pap possible.  Why not?  It just might work.  And more importantly, someone just might be better for your having done it.

As for Lisa Bloom, whom I don’t know but who seems nice enough: You may be a great lawyer, for all I know, but one could never tell from the crap you’ve put out thus far.  Don’t let the marketing department write your stuff. Spend more than 3 minutes thinking before you let something go out under your name.  The “legal consumers” come and go, and they wouldn’t know good if it bit them in the butt.  But lawyers know, and there is an awfully good chance they’re going to see the sweet white cream oozing out if you don’t show some massive improvement in the level of thought put into your posts.

I know you want to be a celebrity, and pounding perpetual self-promotion seems to be the quickest route.  But lawyers on the internet can be a tough crowd.  If you’re half the lawyer you say you are, then show it. I have no problem with a great lawyer being a cutie as well, but a cutie, a self-promoter and a vapid twinkie isn’t going to cut it.  Help out my buddies Mark and Josh with some sound thinking. They could use the help.

Just because you’re Gloria Allred’s daughter doesn’t mean you can’t be a decent lawyer and a real person. It will take some doing, of course, but nothing worthwhile comes easy.

When  last we heard of  Dr. Michael LaPaglia, anal examiner extraordinaire at the Methodist Medical Center of Oak Ridge, it was for sticking his fingers into a 21-year-old named Felix Booker.  The physician’s excuse was that someone was going in whether Booker consented or not, and he wasn’t about to miss the chance to get his hands dirty.  Well, Dr. LaPaglia is back.

Via Knox News :

An Oak Ridge man who says he was forced in June 2011 to submit to a digital rectal exam for suspected drugs — and no drugs were found — has filed a lawsuit in Anderson County Circuit Court.
Wesley Antwan Gulley’s legal action contends his constitutional rights were violated and he was subjected to false arrest and imprisonment, assault and battery and medical battery.

The lawsuit alleges Gulley was in shackles and reluctantly consented to the exam, but only after Dr. Michael A. LaPaglia ordered an injectable sedative and threatened to use it “in performing the digital rectal exam …

At least with Booker, LaPaglia pulled out a plum.  But Gulley had nothing to hide.  The justification for suspecting that there were drugs hidden in his anus?

Gulley was stopped in Oak Ridge for an alleged traffic violation on June 3, 2011, and told he was being arrested for drugs, according to the lawsuit. He was 19 at the time, records show.

A drug-sniffing dog alerted on a $20 bill found on the driver’s seat of the vehicle, and Gulley underwent an extensive pat-down search.

He was then taken to Methodist Medical Center of Oak Ridge for the exam, the lawsuit states.

It all started with a traffic violation, which devolved when a drug dog alerted to a $20 bill.  What are the chances?  Incredibly good, actually, since  almost all currency will give rise to a dog alert.  Then there’s the question of dog sniff alerts, notoriously subject to the influence of the handler and the false-positive problems with dogs.  But hey, it was a traffic violation. Nothing says drug in the anus more than a traffic violation.

So naturally, Gulley was taken to the hospital in the usual course of a traffic violation and dog hit.  You can never be too sure of such miscreants.

Three Oak Ridge police officers and two nurses were in the hospital room at Methodist Medical Center of Oak Ridge at the time of the exam, according to the complaint.

Nothing was found and Gulley was never charged with any drug-related crime, the lawsuit states. A resisting arrest charge filed against Gulley was later dismissed by the state, the lawsuit states.

There was no question what to do with Gulley after his seizure: Bring him to LaPaglia, who not only has no reservations about performing medically unnecessary procedures and facilitating the police officers whimsical, baseless (and warrantless) intrusions into the bodies of their suspects, but a doc who seems always ready to stick his fingers into another man’s anus.  If there’s an anus to be searched, Dr. LaPaglia’s the man to do it.  With gusto.

The cavity search performed on Felix Booker, who was subsequently convicted of possession and whose case is before the 6th Circuit on appeal, was outrageous in that always eager LaPaglia paralyzed Booker to stick his fingers where the sun don’t shine at the mere request of the police.  No warrant. No consent. No nothing.

But compounding the perversity, LaPaglia used his medical license to become a happy tool of law enforcement, only too willing to once again dive in with a suspect whose only purported connection to drugs was a hit on a $20, about as worthless as any evidence could be,  As much as this is a legal outrage, what the heck do other physicians think about this conduct?  Are they good with their fellow physician performing these procedures whenever a cop asks?

As for the folks in Oak Ridge, if you end up in the hospital and a doc named LaPaglia happens to show up, I strongly urge you to demand that he wash his hands. You never know where they’ve been.

H/T Knoxville lawyer R. Arthur Jenkins

The story of a bystander watching an arrest on the street, becoming the inexplicable target of a violent cop, who then viciously attacks him without reason, is not a new one here.  When the bystander happens to be a New York State Supreme Court Justice, it gets a little more interesting. 

From the New York Times :

Thomas D. Raffaele, a 69-year-old justice of the New York State Supreme Court, encountered a chaotic scene while walking down a Queens street with a friend: Two uniformed police officers stood over a shirtless man lying facedown on the pavement. The man’s hands were cuffed behind his back and he was screaming. A crowd jeered at the officers.

The journey of this story starts here, because the judge stumbles upon a street bust. Key detail is that the perp is on the ground cuffed.  Toward the bottom of the story, this detail emerges:

When they first came upon the crowd, the judge said, he was immediately concerned for the officers and called 911. After he made the call, he said, he saw that one of the officers — the one who he said later attacked him — was repeatedly dropping his knee into the handcuffed man’s back.

And our judge, protector of the official, public servant sycophant, badge-licker, watches as the cuffed criminal gets kneed in the back repeatedly.  Our judge is concerned about the unruly crowd, upset at a cop for violently abusing his prisoner, becoming a threat to our judge’s beloved police.  So our judge calls 911 to backup the police. It never occurred to him that the perp on the ground shouldn’t be repeatedly kneed in the back, or the crowd had damn fine reason to be upset. 

But within minutes, he said, one of the two officers became enraged — and the judge became his target. The officer screamed and cursed at the onlookers, some of whom were complaining about what they said was his violent treatment of the suspect, and then he focused on Justice Raffaele, who was wearing a T-shirt and jeans. The judge said the officer rushed forward and, using the upper edge of his hand, delivered a sharp blow to the judge’s throat that was like what he learned when he was trained in hand-to-hand combat in the Army.

How horrible for our judge. His beloved cop attacks!  A sharp blow to the judges throat is a serious matter. Unlike a sharp knee to a perp’s back, over and over, which, our judge wondered, could potentially hurt the officer’s knee very badly.

But he’s a judge, not some unworthy street punk deserving whatever comes to him. You can’t do that to a judge!

Justice Raffaele said that after the officer struck him and he regained his composure, he asked another officer who was in charge and was directed to a sergeant, who, like the officer who hit him, was from the 115th Precinct. He told the sergeant that he wanted to make a complaint.

The sergeant, he said, stepped away and spoke briefly with some other officers — several of whom the judge said had witnessed their colleague strike him — and returned to tell the judge that none of them knew whom he was talking about. As the sergeant spoke to the other officers, the judge said, the officer who hit him was walking away.

Welcome to the real world, judge. No matter how good you look in robes, on the street, you’re still the enemy. 

As it turned out, Justice Raffaele went to the hospital and was treated and released. He’ll be fine. He reported the incident to the Civilian Complaint Review Board, which will give it a read as opposed to filing it in the unsubstantiated file with the rest of them.  And internal affairs is investigating because the complaint came from a judge.  He’s credible, as opposed to the rest of us who are dog meat.

But what did our judge learn from the experience?

“I do feel that it’s important for this person to be disciplined. I don’t know if he should be an officer or not — what he was doing was so violent.”

Ya think?  But it’s just one bad apple. No systemic problem here, and certainly no concern about the perp handcuffed on the ground getting kneed in the back over and over.  It’s not that Justice Raffaele is a bad guy, or even a bad judge, sitting in the matrimonial part and one of the volunteers to perform weddings of gay couples when the law was changed.

“I think, universally felt, that he is one of the most soft-spoken, thoughtful, decent human beings around,” Justice Weinstein said. “I think his temperament is admired by certainly his colleagues in the bar and I believe the community that he served.”

Often, the thought is that judges can’t understand and appreciate the reality of life on the street because they sit too high on their bench, their minds obscured by the obsequious laughter when they tell lame jokes.  Yet Justice Thomas Raffaele, walking the streets of Jackson Heights in jeans learned exactly how life on the street goes, both for the perp he watched beaten, the crowd trying to stop the viciousness and for himself, a 69-year-old men who was struck in the neck by a cop for no reason whatsoever.

He learned how the cops circle the wagons and refuse to help. He learned how they deny everything. He learned how they stand there watching as a cop attacks a person, and do absolutely nothing to stop it.

And all he gained from the experience was that there was one cop who needed discipline.  Not only does this shatter the myth that judges would know if only they could experience the life of regular folks on the street, but it reinforces the myth that those who have hitched their wagon to the establishment are incapable of either learning or caring, as they continue to see life through official eyes. 

It’s unfortunate that Justice Raffaele was harmed by a cop. It’s worse that he learned so little from it.

The police in Aurora, Colorado, faced a fascinating dilemma,  From the Aurora Sentinel, the police closed down an intersection after a bank robbery, stopped about 20 cars and held about 40 people.

The incident started around 3:50 p.m. Saturday when police say the robber barged into a Wells Fargo Bank at East Hampden Avenue and South Chambers Road and pointed a gun several people in the bank.

The robber, who was wearing a mask that covered virtually all of their face, then fled the area.

Oates said officers determined that the robber had to be in one of 19 vehicles headed east on East Iliff Avenue near South Buckley Road at about 4:20 p.m. The intersection is about two miles northeast of the bank.

Oates declined to say exactly how officers knew the suspect was going to pass through the intersection, but stressed that investigators were certain he would.

While the details may be muddled, it appears that they stopped the cars, handcuffed the occupants and then sought (and obtained) consent to search the vehicles. They eventually found the person they believe to be the bank robber.

The police action was dictated by two things, the certainty that the robber would be found in one of the cars and the absence of any description of the person or the vehicle that would allow the police to limit their stop and search to only those fitting the description.  For the sake of argument, let’s assume that the police claim of “virtual certainty” is accurate and well-founded.

Constitutional?

Eugene Volokh says bullocks.

I’m not a Fourth Amendment expert, but I’m pretty sure this is unconstitutional. Handcuffing someone generally requires probable cause to believe that they are guilty of a crime, or — in the context of a brief investigative stop — “particularized suspicion” to believe that the person is dangerous to the investigators.

What is true for a search pursuant to a warrant is likewise true for warrantless seizures, such as the ones that occurred here. And even if the 5% chance that any particular driver was an armed and dangerous bank robber (1/19, even assuming that the tip was seen as having a 100% chance of being accurate) sufficed to provide enough “individualized suspicion” for a brief investigatory stop — perhaps, depending on the circumstances, including a patdown for weapons — I don’t think it would justify keeping all the innocent people handcuffed for an hour and a half.
It therefore sounds to me like the police might be facing 19 lawsuits (one in which the jury might not be that sympathetic to the plaintiff, and 18 in which they will likely be much more sympathetic), as well as one likely pretty solid suppression-of-evidence motion.

Strangely, my natural inclination toward suppression isn’t tingling here. Ignoring (as I do) Eugene’s opening disclaimer (his version of “I don’t nothin’ about birthin’ no babies), this bizarre scenario seems to present the only reasonable way for the police to have dealt with the situation.

Say the basis for the certainty that the armed bank robber was at the intersection was based upon a tracking device hidden with stolen currency, such that the cops knew within 100 feet where the robber would be found, and given the number of other vehicles and people at the intersection making it impossible to follow all the vehicles until each could be isolated, and given that the robber was armed, what alternative did they have?

Clearly, to stop and inquire of every vehicle/person without first assuring that they wouldn’t pull out the gun and blow some cop away (or a few others at the intersection who happened to be in the line of fire) wouldn’t work. The police aren’t obliged to be killed before they can take appropriate measures to secure their safety.  So placing each person in handcuffs first, as a precaution, despite having no particular suspicion that they are the bank robber beyond the happenstance of their being at the same intersection seems, well, the only reasonable thing to do.

It’s not that Eugene didn’t see the problem.

Protecting the public from armed bank robbers is certainly very important; but handcuffing dozens of innocent people — in a situation where it was certain that the great bulk of the people were indeed innocent — for over an hour as part of this sort of blanket seizure strikes me as much too high a price to pay for this sort of law enforcement.

If the police delayed their investigation, and thus held innocent people in custody for a moment longer than necessary, the point would be well-taken.  But there is no claim of dilatory tactics, even though it may have taken more than an hour to find the culprit.

And what of the “dozens of innocent people?”  Certainly the number of people who found out what it’s like to feel steel around their wrists is shocking, but does that alter the equation?  Suppose there were only two cars at the intersection. Would that change the calculus? Are the rights of the nice innocent folks in the other car less worthy of constitutional protection?

The alternative option was for police to let the bank robber continue on in the hope that he would eventually be susceptible to isolation, and then that police could get to him, that he would still be findable, and that it would be under conditions where he could be stopped without endangering others.  The variables involved present a number of questions that may have made this option untenable, but more to the point, they had an available means of capturing him at hand and would have had to forgo it without knowing whether the alternative would come to pass.

It’s a tough call. The commenters to Eugene’s post overwhelmingly favor his position, that this was an unconstitutional stop and seizure, and that the police should be liable to the innocent people stopped without individualized suspicion.

Notably, had I been one of the people stopped (and not the bank robber), I don’t think I would have taken issue with the choice.  My having lost an hour of my time, and sat there cuffed, would have struck me as completely understandable under the circumstances.  Inconvenient. Maybe even painful and humiliating. Maybe.  But as a citizen, I would have supported the choice.

And yet, it’s breaking my heart not to scream about the outrageous police conduct.  I suspect many will rip me a new one for my view here, but the police tactics strike me as reasonable under the circumstances, and contrary to Eugene’s view, I don’t find the price too steep to pay under these circumstances.

The story was simple and without dispute:

A conservative activist, Steven Howards, approach Joe Biden on a receiving line at a mall and asked him “how many children starved to death last night because their parents have no job because of you.”  Biden responded “thank you,” and walked away, and Howards touched Biden on the shoulder as he left. 

A Secret Service agent immediately approach Howards and asked to speak with him. Howards refused. The agent asked Howards if he assaulted Biden, and he denied doing so. The agent then confirmed with another agent that Howards had touched Biden’s shoulder, and arrested him and hustled him away.  Howards was turned over to the local police, who charged him with harassment.

To be clearly established, a right must be sufficiently clear “that every ‘reasonable official would [have understood] that what he is doing violates that right.’ ” Id., at ___ (slip op., at 9) (quoting Anderson v. Creighton, 483 U. S. 635, 640 (1987)). In other words, “existing precedent must have placed the statutory or constitutional question beyond debate.” 563 U. S., at ___ (slip op., at 9). This “clearly established” standard protects the balance between vindication of constitutional rights and government officials’ effective performance of their duties by ensuring that officials can “‘reasonably . . . anticipate when their conduct may give rise to liability for damages.’” Anderson, supra, at 639 (quoting Davis v. Scherer, 468 U. S. 183, 195 (1984)).

The “clearly established” standard is not satisfied here.This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards’ arrest.

While other courts, the 10th Circuit in particular, had held that retaliatory arrest for the exercise of a constitutional right, the Supreme Court had no reach such a conclusion under the specifics of this case, where probable cause to arrest was established by the false statement, even though this was mere post hoc pretext for the agents’ actual purpose of teaching Howards that he didn’t talk to the Vice President that way.

Here, the right in question is not the general right to be free from retaliation for one’s speech, but the more specific right to be free from a retaliatory arrest that is otherwise supported by probable cause. This Court has never held that there is such a right.⁵

Whren’s discussion of the Fourteenth Amendment does not indicate, much less “clearly establish,” that an arrest supported by probable cause could nonetheless violate the First Amendment.

For anyone remotely familiar with what the blawgosphere has done to protect and defend free speech, no one has done more of his own volition than Ken at  Popehat (yes, his real name is now public knowledge, but I reflexively call him Ken at Popehat and have no plan to stop until he tells me otherwise).  When a blogger’s freedom of speech is challenged, Ken has never shied away from standing up for him, regardless of politics or location, and without seeking any compensation for his efforts.

For this, he’s received the Wages of Snark, including offers of sex from pseudonymous internet commenters of dubious gender, cufflinks and a trophy:

He deserves this, and more, for serving the cause of free speech in the blogosphere without reservation. Well, maybe not the cufflinks, but let’s not get picky.

Despite my sincere admiration for what Ken’s done, I remain somewhat troubled by it for two reasons. First, I can’t help but wonder why all the “friends” of a blogger, those who share not only the “belief” in free speech (at least when it serves their interest) but similarly share the politics, haven’t put their money where their mouth is.  I’m speaking here of the Brett Kimberlin/Aaron Worthing affair.

While many blawgers added their voices to the cause,  myself included, of free speech, many conservative bloggers used this as a means of bolstering their conservative political agenda by using “left-leaning” bloggers as proof of their righteousness.  They were only too happy to left Ken do the heavy lifting. Why?  There is no shortage of lawyers among conservative bloggers. They have the same ability as Ken to send letters or walk into court. Yet they didn’t.

Or perhaps the wide swathe of big-time conservative pundits could have sent Ken a check to contribute to the cost of his efforts, and implored their adherent to do the same, so that Ken wouldn’t be solely responsible for the price of free speech.  I’m unaware of anyone sending Ken a dime to contribute to the cause. Not that Ken asked for anything, as a good man wouldn’t, but that doesn’t mean they can’t take up a collection among themselves for the benefit of one of their own.  Instead, they are only too happy to let the left-leaning lawyer do the dirty work on his own dime while they seize the opportunity for their own benefit.

The second aspect that I find troubling is that it encourages those who see the internet as a free ride to attack.

Now, I have only very rarely run into Freakish Entitlement Syndrome, which is always a hazard of offering something for free. But it happens. And it irks the living shit out of me, and sometimes puts me off the whole enterprise for a day or two.

Ken links to the Advice Goddess, Amy Alkon, who writes of the problem.  After all, if she’s on the internet and can be reached, then she’s fair game for anyone who wants her services on demand and for free. And should she have the audacity not to give herself away, then she is evil for not satisfying the demands of the entitled.

Ken says he has “only very rarely” run into this problem, which frankly shocks me given his open approach to helping bloggers.  It’s barely a hop from the limited scope of his largesse to a demands that he fulfill the needs of anyone with keyboard.  I get ‘requests” for pro bono daily, and I would imagine he does as well.  When I respond negatively, some get angry. Some get very angry, because they are entitled to “justice” and it’s my duty to get it for them. Freakish indeed.

These well-intended efforts feed the belief of entitled narcissists and nutjobs that we exist to serve them, and should we fail to do so, we are either part of the conspiracy against them or their direct enemies and deserving of attack.  For those of you who don’t have a blog, there are far more nuts on the internet than you would believe, and some can be quite scary crazy.

There is a lot of tough talk in the blawgosphere.  Some is nothing more than noise.  Some is total baloney.  But few back up their talk with action like Ken, even if I have no clue what Ken is saying half the time when he devolves into hipster internet lingo. Still, there is no doubt that Ken will back it up.

Which leads me to a final aspect of all this that disturbs me, though it’s beneath the level to be worthy of a place on the list.  Ken’s willingness to jump into the fray, to put up the Popehat Signal, makes me feel inadequate.

This award has proven to be an invaluable management tool. Occasionally a partner or associate argues with me. I point to the statute and say “Do YOU have an award for badassery?” They subside, sadly, and submit. As it should be.

I have no award for badassery either, and so I tip my hat to Ken White and submit. 

It would be wonderful if witnesses against a person charged with a crime could be insulated from consequences. Especially when the allegations involve something that violates fundamental norms. Even more especially when it’s a trial that will be broadcast far and wide.  These poor witnesses, who are there for having suffered, for being the victims of crime and worse. Why should they be perpetually tainted by the misfortune?

There are three reasons.  First, because they are not victims until a jury convicts the defendant, finding that a crime occurred and the defendant committed it.  Second, because the scrutiny that adheres to testimony and compels a witness to be truthful requires that they put their true self, their real name, the full background, on trial. Third, because our Constitution commands a public trial, and a public trial cannot be had when critical participants get to hide in the shadows.

Even Jerry Sandusky gets a fair trial, despite the disgusting crimes with which he’s charged.

From the Associated Press :

Lawyers for several of the accusers had asked that their clients be allowed to testify under pseudonyms, a rarity in criminal cases. {Judge John] Cleland said they must use their real names, but that he and lawyers will “cooperate when possible” to protect witness privacy and personal information.

“Arguably any victim of any crime would prefer not to appear in court, not to be subjected to cross-examination, not to have his or her credibility evaluated by a jury — not to put his name and reputation at stake,” the judge wrote. “But we ask citizens to do that every day in courts across the nation.”

The argument in a case involving molestation and other sex crimes is that they are so sordid, so sickening, that the taint remains after the trial is concluded, leaving the victims to suffer the consequences of being a sexually molested victim for the rest of their lives. People will stare at them, point at them, and say, “there goes a victim of the heinous child molester.” 

It’s a sad argument, reflecting the vestiges of our Puritan heritage than anything the person did to deserve the stares.  It’s like those who view a rape victim as “tainted,” as if she could never be “clean” again and should therefore be treated as a societal pariah for something that was done to her. It’s just a sick perspective.

While neither Sandusky nor his lawyer, Joe Amendola, did much to persuade the public he has a defense to the charges, each engaging their mouths any time a microphone came near while their brain was double-clutched, the defendant remains presumptively innocent until a jury says otherwise.  And for that reason alone, he is entitled to confront his accusers, both by looking into their eyes and having them testify under their real names, where the defense can question and challenge them to put their background and reputations under the microscope.

Notably, it’s unlikely that anyone not attending the trial will ever know who these people are.

Media organizations, including The Associated Press, typically do not identify people without their consent who say they were sexually abused.

Or who say they were raped. Or who say they were the victim of any sort of sexual crime. This is the concession to secrecy that the press offers to putative victims, that it’s one thing for the defendant to be denied the opportunity to face his accuser without concealment, but there is no need for the rest of us, merely watchers, to know who they are.  It assumes that our interest in such detail is prurient; we just enjoy a good scintillating sexual scandal.

However, one of the aspects of a public trial that compels a witness to testify truthfully is the fear that others, members of the public, who know them and know the truth about them, will learn of their testimony.  If they lie, someone will know. It may not be the parties in the courtroom who are aware of every sordid detail of their life, but others outside the courtroom who have come to know aspects of their lives.  If their names are never revealed outside the courtroom, however, then there will be no one to come forward to reveal that the testimony was false.

Sure, this is unlikely.  Few trials receive much publicity, and even reports of trial tend not to be sufficiently detailed to allow someone outside the courtroom to learn of a falsehood unless it touches on a major point.  Chances are that even with the media reporting the names of witnesses, no one will be wiser for it and there will be no revelation of dishonesty. 

Yet it’s the promise of public scrutiny, the fear of it if you will, that was meant to keep the system honest.  That chances are extremely low that anyone will come forward with information that shows a witness against the accused lied doesn’t mean it can’t happen, and doesn’t mean the intense pressure of being publicly revealed as a liar rather than victim doesn’t weigh heavily on the witness to keep him honest.

One can easily understand why the alleged victim’s of Jerry Sandusky would prefer to testify under pseudonyms, to avoid adding the insult to injury of going through life as one of Jerry’s kids.  But our system doesn’t (except when it does) allow this, and shouldn’t.  Even when the defendant is Sandusky.  Even when the crime is child molestation.  Even when our sympathies are with these witnesses.

Update: As was just pointed out to me, today’s post is hardly a novel concept in the Sandusky case.  From a letter to the Public Editor of the  New York Times published December 31, 2011:

Although The Times’s policy (shared by all major news media in this country) of not ordinarily publishing the names of accusers in sex crimes has the laudable goal of helping to encourage actual victims to come forward, it is either wholly incomplete or completely misguided.

The problem is that by providing anonymity to anyone who makes an accusation, The Times and the rest of the news media treat all accusations of sex assault as true, which they are not. Some are, some aren’t. The policy makes every accuser into a victim who must be protected while treating every person accused (their identities are treated as fair game) as guilty. But what of the falsely accused? In those cases, the news media out the actual victims while providing anonymity to the perpetrators (the false accusers).

The problem is exacerbated when an accuser is given a moniker like “Victim 1,” which not only declares the truth of that person’s accusation but also assures the reader that the person accused has assaulted others.

The Times occasionally acknowledges the presumption of innocence. Its policy embodies a presumption of guilt.

JEFFREY M. GAMSO
Toledo, Ohio

That name sounds so familiar, doesn’t it?