The  Toronto Star has conducted an extensive investigation and discovered a outrage. Cops lie. I know, shocking, right?

The first time Toronto police Det. Scott Aikman deceived the court, a judge denounced his “misleading” testimony and threw out a cocaine charge against a man.

The second time, Det. Aikman’s story explaining why he and his partner searched a minivan led to the acquittal of four suspects accused of masterminding an international credit-card data-theft ring.

Aikman “either fabricated or concealed evidence” to justify the van search, the judge said. The four suspects, charged with a total of 321 offences, walked free.

The lede is good for a laugh.  The first time?  Or the first time he got caught?  On the other hand, at least the judge didn’t sigh, shut his eyes as tightly as possible and let it happen.  In a companion article, the Star describes the problem of how lying police “thwart justice”:

Visibly nervous, papers shaking in their hands, Toronto police officers Jay Shin and Joseph Tremblay testified under oath that they stopped Delroy Mattison’s Chrysler Intrepid on the afternoon of July 18, 2011, because they saw him using a cellphone.

The officers were lying, just not very well.

In Mattison’s trunk that summer day were a stainless steel .357 Smith & Wesson revolver and 31 bullets. Mattison, who had a previous conviction for armed robbery, was on his way to a drug deal. Under the law, these officers needed a reason to stop and detain Mattison. Without one, they would never have found the gun.

The problem is they never seized a cellphone or noted the existence of one in paperwork filled out at the scene.

The message sent is significantly different than the message received.  Rarely do we find officers “visibly nervous, papers shaking in their hands.”  If only this was the case.  The cops who is nervous is either a rookie or suffering from bad sushi. The norm is clear, concise testimony presented with assurance and aplomb.  It just happens to be a complete lie, but they feel no qualms about the fabrication as they are certain they are on the side of truth and justice.  After all, the defendant is guilty and it’s their job to make sure he gets convicted. What’s another lie to make justice happen?

The irony is that we rely on oaths, as if we are still living in the Victorian era.  Police officers take an oath of office, swearing to uphold the Constitution and the laws of their jurisdiction.  On the witness stand, they swear to “tell the truth, the whole truth, and nothing but the truth.”  And we, in our manifest naïveté, pretend that means they’re going to tell the truth.  

Because why?  They will feel just horrible for lying on the stand?  They won’t sleep that night?  They will have betrayed the higher being who guides their moral compass?  Grow up.

 A nationwide Toronto Star investigation shows judges are frequently finding that police officers lie under oath. The dishonesty comes with little consequence to the officer, particularly in provinces such as Ontario where there is no law or policy requiring a prosecutor or police force to investigate the courtroom conduct.

This is what passes for shocking news in the 51st State.

“The credibility of a police officer is sacrosanct. Our entire profession is based on the principle that police officers will act and be held to a higher level of accountability,” [Edmonton Police Chief Rod] Knecht told the Star. “Every instance of deceitful behaviour damages the collective reputation of police everywhere. Once damaged, that reputation is hard to restore.”

See how easy it is to say the right words, like sacrosanct?  By reassuring everyone that he would never, never, tolerate deceitful behavior, we can all breath a deep sigh of relief, confidant that the problem is solved.

Of course, it’s not always easy to know that a cop lied, even when some point-headed liberal judge says so.

At the Toronto force, Chief Bill Blair would not be interviewed. His spokesman, Mark Pugash, accused Star reporters of bias and said “your story cannot be taken seriously.”

“A judge can comment on anything he or she wishes. Such comment, however, does not amount to a finding of guilt,” Pugash said. “The criminal justice system works on evidence, on examination, cross-examination and decision. It does not work on throwaway comments unsupported by evidence.

“You either don’t understand, or you don’t want your readers to understand, the fundamental distinction between a judge’s comments and a judge’s rulings.”

No reason to note the curious juxtaposition of the ease with which the guilt of defendants is assumed, while a cop lying is unprovable in the absence of video from twelve separate angles plus the Pope as a witness.  But then, that’s because the credibility of cops is sacrosanct. 

To its great credit, the Star’s series raises the public consciousness of two perpetual and foundational problems with the criminal justice system, that cops lie and that nothing is done about it.  At best, the occasional defendant walks, which hardly provides much of an incentive to the police witness to tell the truth since he doesn’t suffer personally from the outcome and doesn’t change the outcome for the 100 times he got away with it.

On the bright side, this comes from Canada. It’s not like it could ever happen in the United States, where we have the best legal system ever conceived. I know this because it says so over the door. Aren’t we exceptional?

H/T Canadian Olympic curling hopeful, Ed at Blawg Review.

At An Associates Mind, Keith Lee discusses a shift in the expectations of those nice people who get to decide whether a criminal defendants goes home or spends his life in prison. No, it’s not about libertarian tendencies, or love of freedom.  It’s not about the compulsive need for order and submission to the shield. If only it were that easy.

“If a generation is going to arrive in the jury box that is totally unused to sitting and listening but is using technology to gain the information it needs to form a judgment, that changes the whole orality tradition with which we are familiar.”

November 2008, Lord Chief Justice of Great Britain, Sir Igor Judge.

What do Millennial jurors wants? They want you to put on a show! Not just any show, but one that conforms to their attention span, their love of video; their inability to sit and pay attention, their inability to hear testimony and process it sufficiently to either understand its significant or question its gaping holes.  They want to be entertained.

Based on a post at Legal Skills Prof., Keith points out, correctly, that trials are, and always have been, theater. While the meat of the trial is testimony, the garnishes include everything we can muster to enhance the strength of our positions and diminish its weaknesses. He raised the “nerd defense” of putting eyeglasses on street thugs. It runs from dressing the hipster defendants in cardigan sweaters to having an alleged rapist sit next to a woman at counsel table. There is no denying the theatrics.

But then, that’s not the type of show Gen Y wants to see.

Droning on about the facts in front of a jury composed of mostly Millennials isn’t going to cut it. In an ideal world it would. Jurors would still still and be attentive, carefully weighing the arguments and evidence as it is presented. When you find such a place, call and let me know.

In the meantime, Millennials will be sitting in the jury box, twitching, unable to check the smart phones lest the judge catch and reprimand them. They probably resent being there. They’re looking for something to engage them and hold their interest. Something to make them forget where they are and capture their attention.

Despite our best efforts, droning on about the facts in front of the jury is the main event.  And don’t think for a second that we can’t see the jurors shifting about in their seats, desperate to get out of the box.  If someone accidently made the new twit sound in the courtroom, the box would explode and jurors would start having seizures.

The problem isn’t that we don’t know that the Slackoisie are sitting in those uncomfortable chairs. The problem is what to do about it.  And the problem is exacerbated for the criminal defendant, as we don’t control the case in chief, and often have no real idea how the prosecution intends to put its case before the jury until it happens.  Civil lawyers are always astounded by the fact that they get discovery that dwarfs by magnitude what is provided the criminal defense.  We go in, essentially, blind. It’s hard to prepare a video to counter the mystery of the prosecution’s case.

The easy answer is to smack the Millennials around, tell them this isn’t a television show (or is that already an archaic reference?) and the evidence upon which they will have to reach their verdict will be presented primarily by words. They may not like the idea of sitting around, passively listening, for days on end, but that’s the deal.  Suck it up.

But the better solution isn’t to be right, but effective. (h/t Bill Henderson)

The desires of the Slackoisie presents a huge advantage to the prosecution. They choose the case. They present the case in chief, and know how they’ve going to put their evidence in beforehand. They have the wherewithal and opportunity to create a show that appeals to the sensibilities of the Slackoisie, and the favors of the judge to allow them the latitude to do so.  As if they needed another advantage at trial.

The defense rarely has much of a case to present. Witnesses? If only. Experts? On the rare occasion the defendant can afford to retain one, it’s even rarer that the case calls for one.  We are left to poke holes, to point out inconsistencies, to exploit the mistakes when and where we find them. And until the words leave the prosecution witness’ mouth, we usually have no clue when the opportunity will present itself.

Prepare a video? Of what? Without witnesses, the only opportunity to use it is on cross, and no one ever really knows what will come out on cross beforehand. One errant word by a witness, or worse yet, one truthful word, and our whole preplanned attack collapses.  Planning is a wonderful thing, but it’s not as if we have any control over the other side’s witnesses.  If there’s anything that defines the criminal defense lawyer, it’s tolerance for ambiguity and the ability to shift gears on the fly.

The host of reasons why this won’t come easily is long, but none of it changes the desire of the jury to feed it information in the small and interesting bites demanded.  While it’s sad to say that droning on is what we do best, it’s usually all we’ve got.

As posited by Dr. Mary Noffsinger in her Texas Law Journal article, The Millennial Juror,

Verbally presented messages should be accompanied by demonstrative exhibits (e.g., photos, videos, illustrations), which foster improved attention, reduced boredom, enhanced memory, increased credibility, and entertainment value.

Speaking in “sound bites” and utilizing technology is more important than ever with Gen Y jurors, given their tendency to process information visually and rapidly and the likelihood that elaborate explanations and protracted arguments will make them bored and impatient. Adopting an interactive style helps to empower these digital natives as listeners and learners.

If true, and I believe it is, we’ve got a problem. Frankly, it’s unclear whether the nature of a criminal trial offers the defense any solution.

My old pal Niki Black took time off from singing the praises of clouds to post at  Sui Generis about a New York State Bar Association ethics opinion on lawyers being mean to other lawyers.  For you sad people who aren’t New Yorkers, bear in mind that the NYSBA is a volunteer organization with no power whatsoever over anyone.  Unlike other jurisdictions, lawyer licensure and discipline is handled by the state, and the State Bar is only good for an occasional party, a CLE about the fabulous value of SEO and a way to sink money into a black hole of utter worthlessness. 

Still, the folks who like to join organizations like the State Bar and pretend that makes them matter have a Committee on Professional Ethics, where people can ask questions and they provide answers as if their thoughts on the issue matter.  As Niki notes, they recently hit on an  interesting ethics issue about blogging.

The question posed was:

May a lawyer host or participate in an internet blog established as a forum for lawyers to recount their experiences in dealing with an adversary whose past professional conduct is considered by them to have been unethical, harassing or abusive?

Seriously?  Someone thought it worth their time to establish a blog for the sole purpose of beating the crap out of another lawyer?  And others thought is sufficiently worthwhile to join in this endeavor?

The Committee’s response was short and to the point:

Assuming that the blog criticism is sufficiently accurate and in context not to run afoul of Rule 8.4(c), the question is whether there are any limitations arising from Rule 8.4(d) on a lawyer’s factually sustainable public criticism of another lawyer.  We believe there are none. 

Rule 8.4(c), as everyone knows, prohibits lawyers from engaging in conduct “involving dishonesty, fraud, deceit or misrepresentations,” and we know that would certainly never happen on the internet, where honesty and integrity invariably prevail.  The Committee throws in a caveat about using nasty language to attack a colleague, which it notes is “aspirational” and reflects a deep concern for those sensitive eyes and ears that flinch too readily.

There’s one huge issue with the Committee’s response, and they know it.

Rule 8.3(a) imposes a reporting requirement upon a lawyer who “knows that another lawyer has committed a violation of the Rules . . . that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer.”  To the extent that the negative information to be published about an attorney’s professional conduct is both significant and truthful, Rule 8.3(a) may require reporting such misconduct to a “tribunal or other authority empowered to investigate or act upon such violation.”

If there is a lawyer out there who’s conduct is so “unethical, harassing or abusive” that it warrants a blog for the sole purpose of providing a forum for lawyers to “recount their experiences,” then we have a more serious problem than whether the blog is ethical.

Are you people nuts?

Lawyers are perpetually accused of lacking the guts to out unethical practitioners within the profession, clucking about how bad some other lawyer is while being too chicken to grieve for fear that their fellow lawyers will think ill of them or that they live in a glass house.  There may well be a very real question as to whether another lawyer’s conduct is so horrific that it merits a grievance, and we shouldn’t be rushing to file complaints about others just because they pissed us off on a case or called us a mean name (unless you’re a very delicate flower, in which case you might consider getting an office next to the appellate division).

But when a lawyer’s conduct is bad enough to justify a blog dedicated to how much you hate him, it’s time to put on your big boy pants and do something a bit more meaningful about it.  We have a duty under Rule 8.3(a) to report our own, when there is a “substantial question” about the lawyer’s honesty, trustworthiness or fitness to practice.  If he’s blog-worthy, my guess is a substantial question exists.

The issues raised are foundational.  Don’t lie. Don’t deceive. Don’t misrepresent. Do lawyers really need to be reminded of this?  Or is this about using the internet, the “truth-free zone” where anything goes and anybody can say anything, whether about themselves or others?

Or is this a question about whether lawyers are weenies, telling the truth but fearful that saying mean things will violate the rule against being a hater?

As is often noted, the internet is nothing more than a tool, an additional (even if cool and addictive) piece of equipment in the lawyer’s arsenal.  It has nothing whatsoever to do with alleviating the obligation to act with integrity in all aspects of our conduct.  By the word “all,” I mean even on the internet.  Whether it’s to criticize that which demands criticism, or to tout that which might leave a reader confused as to the truth, the rules prohibiting “dishonesty, fraud, deceit or misrepresentations” are every bit as applicable to your online existence.

Do you really need to inquire of an ethics committee to know that, as a lawyer, you need to tell the truth?  And if some other lawyer is so utterly awful that you need to create a blog to show how much you hate him, then for crying out loud, protect the public and grieve about him. If he’s not that bad, then say your piece and find something more worthwhile to write about. 

When Arizona decided to put an end to people who spoke with accents sullying the manicured lawns of their fine retirement communities, there was an uproar.  After all, a law predicated on imposing a mandatory police duty of ascertaining citizenship status from people who police “reasonably suspect” are illegals is, well, pretty darned outrageous.

Enter the Supreme Court to save us.  Oral argument in Arizona v. United States (and case names are rarely this clear) was held, and we can all breath easier, even Justice Sonia Sotomayor who was reportedly required to show proof and answer a few easy American history questions before being allowed into One First Street.

According to Adam Liptak at the New York Times, things didn’t go well.

“You can see it’s not selling very well,” Justice Sonia Sotomayor, a member of the court’s liberal wing and its first Hispanic justice, told Solicitor General Donald B. Verrilli Jr., referring to a central part of his argument against the measure.

Mr. Verrilli, representing the federal government, had urged the court to strike down a provision requiring state law enforcement officials to determine the immigration status of people they stop and suspect are not in the United States legally.

It’s not that the questions from judges suggested that blond hair and the first name of Sven was cause to hold a guy for a check.  Rather, the case before the Court was about the Supremacy Clause and federal pre-emption.

The Arizona law advances what it calls a policy of “attrition through enforcement.” The Obama administration sued to block the law, saying it could not be reconciled with federal laws and policies. In legal terms, the case is about whether federal law “pre-empts,” or displaces, the challenged state law.

As a general matter, federal laws trump conflicting state laws under the Constitution’s supremacy clause. But no federal law bars the challenged provisions of the Arizona in so many words, and the question for the justices is whether federal and state laws are in such conflict that the state law must yield.

While the federal government owns immigration policy, Arizona’s point is that it’s law is consistent with federal law and policy, and just helps it along by making reporting of illegal aliens mandatory rather than haphazard.  The 9th Circuit held the law pre-empted, and Arizona (along with 25 other states) disagreed.

While federal pre-emption is one way to kick the crap out of state immigration law that will cause misery on the streets of Phoenix, assuming the Supremes go along with their dear brethren in Frisco, the absence of another monumentally significant issue from the case is astounding.  The Supreme Court is considering the propriety of a law that is hugely controversial and will, by definition, cause huge misery to a great many people whose names end in vowels, and yet isn’t considering this aspect at all.

It’s not that the Court doesn’t see the issue.  It’s not that the Court lacks empathy (though whether it has empathy remains a question).  It’s that procedurally, the only issue before it at the moment is federal pre-emption.

Indeed, Chief Justice John G. Roberts Jr. signaled that the court was not closing the door on such a challenge, making clear that the case…was about the allocation of state and federal power. “No part of your argument has to do with racial or ethnic profiling, does it?” he asked Mr. Verrilli, who agreed.

As lawyers, the procedural limitations imposed by the issues for which certiorari was granted makes perfect sense. We’re schooled in the ability to distinguish issues, to wear blinders that allow us to focus on a specific aspect and not notice the 800 pound gorilla sitting next to us.  But cases like this suggest that our facility in ignoring gorillas is pretty ridiculous.

Assuming, as Liptak suggested based on oral argument, that this didn’t go well for the United States and the justices aren’t likely to affirm the 9th Circuit’s pre-emption ruling, the Arizona law will go into effect.  No one has yet to suggest what aspect of rounding up folks who cops “suspect” to be illegal aliens is going to fly, whether because they speak with an accent (or no English at all), have dark colored skin, slanted eyes or black (or blond, for that matter) skin. 

Does that make them aliens? Does that make them illegal? As a nation of immigrants, we’re all at risk, but you can bet they won’t be narrowing in on guys named “John Smith” who speak the King’s English for proof of citizenship.  As for the rest of you, well, suck it up in the name of immigration purity.

But it will be years before the case gets back before the Supremes to determine whether the law is so ridiculously unenforceable without engaging in rampant and rank racial and ethnic profiling.  And during those years, human beings will suffer. That it’s going to happen is obvious, even to Justice John Roberts, who was allowed into the courthouse without having to show proof of ancestry or answer any questions about who won the 1948 World Series.

During the hiatus, how many people will be snatched off the street by Arizona cops for having dark hair or the wrong inflection?  We know this will happen. We know this presents a massive problem, an enormous evil, and yet the Supreme Court heard argument on the validity of this very law without hearing a word about it.

Another guiding force in the utility of the legal system is judicial economy, not wasting the court’s time even though procedure might dictate the contrary.  To what end does the Court ignore the 800 pound gorilla (who will likely be incapable of proving citizenship) hearing argument and rendering a decision on a law like this? 

The law has come before the Court. The law has massive issues, and should it not be pe-empted, will cause substantial harm to a great many people.  And the Court could stop it before it happens, pre-empt the harm if you will.  Yet not a word was spoken about it, as if the tens of thousands of people who will most assuredly be seized to prove their worthiness of being in Arizona don’t matter at all.

A call came in a few days ago from a young lawyer who was feeling kinda lost.  His question was simple: How do you do it?  The background to the question was key.  He was trying to do his job, to play by the rules, to represent his clients competently or better, and get them something reasonably close to a fair shake.  The problem was the judge wasn’t playing along.

He had taken the responsibility of a shift in one of the new-fangled specialized courts, designed to move humans through the system like cattle by eliminating all the time-consuming niceties, like conferring with defendants before pretending to stand before a court and represent them, like arguing their cause and having a judge give the argument fair consideration. 

The judge gave the young lawyer a second or two between meeting the defendant for the first time and going through the motions of representation.  The judge then sent the defendant to jail, one after the other, which is where he intended to send them when he started his day and where they all ended up when the day was done.  Quick, easy and eminently efficient.  A fine day’s work.

The best advice I could offer the young lawyer wasn’t much at all.  He could throw a monkey wrench into the well-oiled machine designed to incarcerate people as quickly and painlessly (for the system) as possible by refusing to play along. He could inform the judge that he could not speak to the defendant’s case as he had not had a sufficient opportunity to speak with the defendant, and until he did so, he would not stand next to a human being and pretend to be his lawyer. 

The young lawyer sighed, fully understanding that such intransigence on his part would both get him into deep trouble with the judge, and replaced in the courtroom.  Some criminal defense lawyer would happily earn a day’s pay for being a part of the machinery of incarceration.  After all, it’s all about getting paid, and it’s not like defendants are really people.

There is nothing as frustrating and disheartening as the intransigent judge.  Get a bad one and the system becomes a farce.  Get a reasonably intelligent bad one and they can cover their tracks sufficiently to assure that they have destroyed any chance at fairness, at due process, while providing a sufficient appearance to get them past appellate review.  As if an appeal is a sufficient remedy.

Judges are supposed to be honored.  But then, they are supposed to be honorable.  Some are. Some are less so.  Some are just brutally awful.  Get wheeled  out to a really bad one and try to figure out a way to make sense of it to a defendant.  It’s easy to explain that he had the monumental misfortune of getting a hanging judge, but it’s never sufficient.

There is no good explanation why the person wearing the black robe see the job as making sure every defendant goes down.  That they will not get a fair chance. That they lost before they began. That there is nothing to do about it.

I’ve been there. We’ve all been there. I envy jurisdictions where they get a one free request for a different judge. 

My advise to the young lawyer was to try, even though it was doomed to failure, because there was no other option.  We can’t give up and walk away, any more than a defendant has the option of saying never mind and going home.  And there is nothing that will change the frustration, the outrage, of knowing that another judge would have given a defendant half a chance, but this judge won’t.

What I often wonder is what the other judges think about all this. I remember a friend who went rogue and became a judge telling me about another judge who was intransigent.  He was more prosecutor than the prosecutors, and never apologized for using his bench to push his agenda. My friend was well aware of the problem, and told me that they all knew what he was up to but could do nothing about it. 

What he meant was that nobody was willing to take him on and risk their own position. Nobody wanted to make enemies, and nobody believed it was worth it.  I told him he was a coward, and he told me I was naive and foolish. What good would it do for good judges to make waves and put themselves at risk, leaving only the bad judges on the bench?

I’ve never been able to come up with a solution for this problem, and my advice to the young lawyer was, frankly, pretty worthless.  Just keep fighting, I said. And losing, but I didn’t say that part. His head already hurt badly enough from banging it against the wall, and there was no reason for me to make his head hurt worse.

Soon enough, I’ll have to tell another defendant that he drew the wrong judge, and he’s screwed.  He’ll ask me what can be done, and I’ll tell him nothing.  We’ll fight, I’ll say, and fight hard.  But it won’t matter. The harder we fight, the more the intransigent judge will create excuses for the cops and prosecutors, and cover up whatever failings happened in the vague rhetoric of discretion and deference. It can take some effort to make sure a defendant hangs, but they’ll do it because that’s what they do.  The intransigent judge will not be moved.

The only answer I’ve ever come up with is to keep fighting, because it’s the only thing we can do.  And even old lawyers feel the pain of banging their heads against the wall, and frustration of explaining to their clients that they’re screwed.  It never gets easier.




 

It’s a fiasco all around.  And yet, it’s as American as apple pie.  When the  New York Times broke the story of rampant bribery at Wal-Mart’s Mexican subsidiary, the dreaded Foreign Corrupt Practices Act went from being “reformed” to being the primary weapon in the war against the dreaded Wal-Mart.

The allegations cover all the bases. There were $24 million in bribes paid to locate stores in Mexico, where Wal-Mart is hated for undermining local businesses, the claim being that for every job Wal-Mart created, four were lost in business that died in its shadow.

When the company became aware of the bribery, and its scope, it quelched the investigation. Then Wal-Mart became a righteous force in FCPA reform. Then, when it learned that the news was about to break bigtime, it reported itself a mere six years too late and denied that it reflected “who we are or what we stand for.” 

Wal-Mart stands for business. Wal-Mart stands for cheap products, cheap prices, an efficient supply chain and making money. Not necessarily in that order.  Wal-Mart stands for America, now more than ever.

As Walter Olson noted in his Cato post, Wal-Mart’s biggest problem here was that it didn’t even bribe smart, opening itself to charges when, had it smurfed its bribes, nobody would have broken a sweat.  He notes, via Stephen Bainbridge, that honest companies are burdened by FCPA, while dishonest ones violate it anyway.  He notes that efforts to take this mutt of a law and attempt to reform it, at least to the extent that it not make American multinational corporations chose between being criminals or uncompetitive, is dead.

It’s enormously hard to be sympathetic toward Wal-Mart, whose history of corporate behavior has been unsavory, to say the least.  But Wal-Mart is huge, and the costs associated with these charges, from internal investigations to defense to likely fines will dwarf the alleged $24 million in bribes.  On the other hand, the dirty little secret of doing business, certainly internationally and, if one doesn’t become a slave to rhetoric, at home as well, is that everybody has a finger in it and wants their piece of the pie.

This could well be the clash of the titans that America needs to come to grips with reality.  The Foreign Corrupt Practices Act is the corporate version of blue laws, a reflection of American idealism born of our Puritanical origins, our Pollyanna-ish denial of how the sausage of business is made, our jingoistic belief that we are so integral to the economic functioning of the world that we can dictate a cultural and moral code for everyone, and they can either comply with our great American will or suck eggs. 

It’s a fantasy of self-righteousness, and even Wal-Mart got caught in the reality that the business of business is business, and not puffy-chested Americans can bully Mexicans into succumbing to our moralistic ways. 

It would be a wonderful world if businesses weren’t told to hand over the cash, or a Ferrari, or whatever some tin-horn local Poobah demanded.  But on their turf, they’re in charge.  America doesn’t own the world, despite our belief to the contrary. Tin-horn local Poobahs don’t care about our Almighty Congress, or the vast power of the Department of Justice. They have their hand out, and if its not filled, you don’t do business on their turf.

The FCPA criminalizes companies that don’t play by the rules of purity, as viewed through the prism of Assistant United States Attorneys, who, in their vast business experience, decide what meets the approval of our Puritan forefathers and what should cost business millions.  Granted, Wal-Mart’s conduct, if true, is so far over the line, both in its commission and cover-up, that there’s no explaining it away. This was a flagrant violation.

Perhaps it’s time for a corporation as large, as important to the American economy, as Wal-Mart to stand up and proclaim:

We did it. We had to do it to do business. We covered it up because there’s a ridiculous, misguided law that says we can’t do it, but we did it anyway.

If you don’t like it, America, Department of Justice, Congress, Judge, we’ll pack up our bags and leave. We’ll close our stores and leave a few hundred million Americans with no place to buy stuff at low prices.  We’ll fire our 2,100,000 employees, and you can put them all on welfare and feed their families.  You’ll have to manage without our sales taxes and payroll taxes and income taxes, so you can pick up the cost of living up to your ideals.

We didn’t pay bribes because we wanted to be evil, but because it was demanded of us. That’s how life works in Mexico. We didn’t like paying the money any more than you do, but we had no choice. It’s not terribly different than contributing to your campaign fund, Senator, if you catch my drift. Or building the new children’s center you demanded in exchange for a variance. You got yours. They got theirs.  And that’s how we get ours.

This is America. This is the world. This is how business gets done. Grow up already.

In anticipation of the Supreme Court’s hearing Florida v. Harris, Penn State visiting assistant lawprof Erica Goldberg has written a pair of  interesting posts at Concurring Opinions. I leave the statistical analysis aspects to Goldberg and anyone else inclined to give it deep thought.  As a lawyer, I decline to engage in anything remotely resembling math unless it involves calculating my legal fee.

The aspect of Goldberg’s posts that I find intriguing is the perpetual and intentional avoidance of quantifying probable cause.

Courts consistently and expressly eschew technical conceptions of probable cause in order to provide police officers with flexibility to exercise their judgment in unfolding situations. In addition, courts focus on whether an officer has a reasonable belief that a suspect has committed or is committing a crime. This metric allows for probable cause to be found in situations where one reasonable officer might assess an 80% likelihood that a suspect is driving drunk, for example, even if another reasonable officer might think there is only a 40% likelihood. We might be tempted to assume the courts require that a reasonable officer be able to believe a crime has been committed by greater than a 50% likelihood, but this has not been made explicit.  All officers must prove to a court assessing a vehicle search is a reasonable ground for belief of guilt.  Further, when a court is making a probable cause determination for itself in determining if a warrant should issue, it must decide only if there is a “fair probability that contraband or evidence of a crime will be found in a particular place.”  What is a fair probability?

Granted, we would be deluding ourselves if we believed that under most circumstances, there could be a meaningful quantification of what constitutes probable cause. Sure, it wouldn’t kill the Supreme to use the ordinary definition of “probable,” as in more likely than not, but that might impair the flexibility of police officers to exercise their judgment, even though that makes probable cause sound particularly arbitrary.

Dogs, however, are entirely different.

In the context of drug detection dogs, where we have actual data on reliability, assigning a numerical value to probable cause — or at least to the maximum false positive percentage upon which an officer can rely — would add much needed clarity to Fourth Amendment law. It also does not undermine police officers’ ability to use their intuition, because the event precipitating a search is not an officer’s informed judgment, but the alert from a dog.

This assumes, of course, that the cops don’t bury the K-9 Officer Fluffy’s screw-ups and maintain legitimate records of every false-positive, false-negative, false-whatever.  It gives rise to some hard numbers, and that makes for some hard law.

At present, doggies are not only furry, friendly and cute as the dickens, but legally untouchable.  If a drug detection dog alerts, a big neon sign pops up screaming probable cause to search, and there’s nothing to be done about it.  The dog only gets it right 3.2% of the time? So what? It’s a dog, and the law loves dogs.

Then the Florida Supreme Court went and screwed it all up by applying basic reason to the myth, as in the expectation that before the Constitution is subject to the whims of a dog (or, for the sake of argument, it’s handler), a sufficient showing of reliability has to be made.  What a bunch of dog haters.

The Supreme Court may have granted cert in Harris to overturn what it considers an unduly burdensome evidentiary requirement on the police. However, if the Florida Supreme Court’s decision is upheld, the Supreme Court should decide numerically what maximum false positive rate can still yield probable cause, given the totality of the circumstances. The Court should not require the introduction of a dog’s false positive rate and then not advise lower courts on what rates are permissible to establish probable cause.  If out of 100 positive alerts to cocaine by a particular dog, the drug is found in only 50 of the cars, the Court should decide whether a police officer may search that car.

For all its efforts to avoid putting a number, a percentage, it may be hard to avoid this time.  The problem, of course, is that should the Supremes fix a percentage for dogs to suffice in establishing probable cause, there is no rational reason why it wouldn’t be applied to probable cause in general.

So what’s wrong with that?  Orin Kerr explains :

[C]ourts should not quantify probable cause because quantification would produce less accurate probable cause determinations. The core problem is that information critical to probable cause is often left out of affidavits in support of warrants: Although affidavits say what techniques police tried that added to cause, they generally leave out both what the police tried that did not add to cause and what techniques the police never tried. Determining probable cause accurately often requires this information, however. By leaving probable cause unquantified, current law enables judges to use their intuition and situation-sense to recognize when missing information is likely important to assessing probable cause. Quantification would lead to less accurate probable cause determinations by disabling those intuitions, creating the false impression that the information provided in the affidavit is the only relevant information. Cognitive biases such as the representativeness heuristic and anchoring effects would allow the government to create the false impression that a low-probability event was actually a high-probability event. To ensure accurate probable cause determinations, then, probable cause should remain unquantified. The result is counterintuitive but true: Knowing less about probable cause improves how the standard is applied.

While I admit that I can’t make any sense of this at all, it doesn’t stop me from disagreeing.  But then, I really don’t like dogs all that much and I like judges using “their intuition and situation-sense” to decide the scope and limits of constitutional rights even less. 

On the bright side, I have no expectation that the Supreme Court will affirm the Florida Supreme Court’s decision in Harris, making all of this a futile academic exercise. Instead, I anticipate a brief decision (perhaps written by Justice Thomas) to the effect that “dogs are cute and if something makes their cute little ears perk up, that’s good enough for us.”  No stats required.

At the Volokh Conspiracy, Eugene Volokh writes about the Michigan Supreme Court upholding the right to forcibly (but not lethally) resist illegal police conduct.  Oh boy.

The case is People v. Moreno (Mich. Apr. 23, 2012) (5 to 2). A 2004 Michigan Court of Appeals decision had held the contrary, but the Michigan Supreme Court overruled that precedent.

Under the old common law rule, people were allowed to use nondeadly force to resist an illegal arrest or search. But, to quote the dissent, “As of 1999, 39 states had eliminated the common-law right, ‘twenty-three by statute and sixteen by judicial decision.’” The question in this case was whether a Michigan statute had likewise eliminated the common-law right; the majority concluded that the statute hadn’t done so. The decision was on its face about how to interpret the statute, but I take it that the majority thought the common-law rule at least made enough sense that they shouldn’t reverse it themselves.

I can hear the cries of “yesssss” from the crowd, those who fear the militarization of the police, the evisceration of civil liberties, the deceit and cowardice that permeates a system that purports to protect the rights of individuals from the power of government.  Step back a moment.

The Moreno case reflected a fact pattern that was relatively limited, where the police, without a warrant, tried to enter a person’s home.

On the morning of the incident, Officer Troy DeWys and Officer Matthew Hamberg were searching for Shane Adams. Adams had several outstanding warrants.  Defendant’s house was in the immediate vicinity of where Adams’s vehicle was parked, so the officers knocked on defendant’s front and back doors to inquire about Adams. While outside the house, Officer DeWys heard voices and people running inside the house. He identified himself as a police officer and stated that he wanted to ascertain the identities of the people inside the house. Officer Hamberg looked through a basement window and could see empty bottles of alcohol and people trying to hide.

Approximately 15 minutes after the officers had knocked on the doors, Mandy McCarry opened the front door. Officer DeWys smelled “intoxicants and burnt marijuana.” McCarry admitted that underage persons were consuming alcohol inside the house, but Officer DeWys told her that he was not interested in writing “a bunch of minor in possession tickets.” Officer DeWys told McCarry that he just wanted to identify who was inside the house. Officer DeWys asked McCarry if she knew the owner of the vehicle parked in the street. McCarry asked the officers if they were looking for Adams and stated that he was not inside the house. McCarry told the officers that they could not come inside the house without a warrant.

Officer DeWys then informed McCarry that the officers were entering the house to “secure it” while they waited for a warrant. At that time, defendant came to the front door and demanded that the officers obtain a warrant before entering his house. Defendant then attempted to close the door, but Officer Hamberg put his shoulder against the door to prevent defendant from closing it. A struggle ensued between defendant and the officers. Ultimately, the officers pulled defendant from his doorway, physically subdued him, and arrested him. Officer DeWys suffered a torn hamstring and bruised elbow in the struggle.

It never ceases to amaze me how a cop always ends up the one with an on-the-job injury that allows him to receive salary without having to work. But I digress.

There are two distinct approaches, and relative problems, with the right to resist unlawful police conduct.  First, there is likely no right more fundamental to “life, liberty and the pursuit of happiness” than the right not to be subject to the command of, and the force of, those people to whom the government gives shields and guns, together with the authority to use them against their own people.

Second, there is no surer way to end up in prison, maimed or dead. 

A basic tenet of law is that there is no right without a remedy.  A more pragmatic truism is comply now, grieve later.  Being legally right and dead has its downside.  What is rather remarkable about the facts in Moreno is that when Moreno tried to stop the officers from entering his home, they didn’t pull out a gun and blow his head off.  To their credit, Moreno was alive to fight the case, and ultimately prevail, because the police struggled but did not shoot.

The legally right person cannot count on this happening. 

The asessment of who is in the legal right is extremely difficult to make after the fact, and essentially impossible to know at the moment a decision must be made to resist with force the conduct of the police.  If some judge years later decides that the civilian was correct, that the conduct of the police officers was unlawful, then the decision to resist is vindicated.  In the meantime, of course, the civilian gets to enjoy the ride, even though he eventually beats the rap.

Mind you, the eventual argument over whether a civilian’s self-diagnosis of the lawfulness of police conduct is subject to the cops analysis to the contrary.  Whether it’s a matter of testilying or differing perceptions of what occurred, there is a strong likelihood that the police will have a story that makes their conduct appear abundantly lawful, and that the judge will embrace their recitation of facts regardless of what the civilian and his 27 witnesses (three of whom are nuns) has to say.

It’s one thing if resistance is necessary in a life or death situation.  Another old adage is that it’s better to be judged by 12 than carried by six.  Or when a police officer engages in flagrantly criminal conduct, such as raping a woman.  But these are outlier situations, rather than the more typical general unlawful stop and seizure, or (as in Moreno) blatant violation of the 4th Amendment by the forcible entry into a home without a warrant.

While the Moreno decision dealt with the vitality of the common law right to resist in the face of a statute that could be interpreted to have eliminated the right, the existence and recognition of the right of a person to be free of unlawful police conduct, to fight it, to resist the violation of his right and person, raises some of the most difficult issues conceivable. 

That the right exists is, theoretically, a fundamental requisite of a free society.  But until someone comes up with a viable way to restore life to a legally correct person with a bullet in his head, it lacks an adequate remedy to make it a good idea.  Resistance may not be futile, but it comes at enormous risk.

Via Radley Balko, the Sacramento Sheriff’s Department collected DNA from middle-schoolers in an effort to  identify the killer of 13-year-old Jessica Funk-Haslam.

Jessica Funk-Haslam was found in the dugout of a baseball field at Rosemont Park on March 5. Investigators say the girl had argued with her mother and left home the night before. She boarded a nearby light-rail train, transferred to a bus and got off near the park.

It’s a horrible crime, and certainly one that compels investigation.  But when police decided to focus on students at Albert Einstein Middle School, their conduct raised serious issues.

Samples of DNA were collected without parental consent from students at a Sacramento, Calif., middle school in connection with the murder of an 8 th grade student who was found stabbed, strangled and beaten to death near the dugout of a local park.

The Sacramento Sheriff’s Department, which has been spearheading the investigation into the murder of Jessica Funk-Haslam, 13, said parental consent was not required in the DNA collection and interview of minors, several of whom were taken out of class during the day last week at Albert Einstein Middle School.

“These are interviews, not interrogations,” Sheriff’s Deputy Jason Ramos told ABCNews.com. “They are all consensual. Once it’s done, there is a mechanism in place for school administrators to notify parents.”

Consensual?  Because tweens knowingly, intelligently and voluntarily agreed to allow sheriff’s deputies to swab their DNA, fully aware of their right to refuse?  That a mechanism may exist to notify parents after the damage is done is not merely irrelevant, but outrageous.  Children are sent to school to be educated, not subject to the whims of police.  Calling it an interview doesn’t alter the fact that this was without question an interrogation, a submission of young children to authority, both school and law enforcement, and it’s insulting to suggest otherwise.

One might expect the reaction to this overreaching intrusion to be swift and brutal, particularly by academics who should be peculiarly sensitive to the abuse of the tendency of children to submit to authority.  One might be wrong.

There is nothing under California law that prohibits DNA collection of consenting minors, said John Myers, a professor at the McGeorge School of Law in Sacramento.

“I think the answer is, kids can consent, and if they consented and it was knowing and intelligent, [law enforcement] can do the search,” he told the Sacramento Bee.

Myers isn’t some kid-supplicant to the ways of police, but lauded on the McGeorge website as:

a Distinguished Professor and Scholar. He is one of the country’s foremost authorities on child abuse. He has traveled throughout the United States and abroad, making more than 400 presentations to judges, attorneys, police, doctors, and mental health professionals. Professor Myers is the author or editor of eight books and more than a hundred articles on child abuse. His writing has been cited by more than 150 courts, including the United States Supreme Court and the California Supreme Court.

If a “foremost authority” has no issues with the cops collecting DNA from “consenting children” in a schools without parental knowledge and consent, who am I to question it? 

Of course, would it have undermined the need to collect evidence had the school refused the police unfettered access to the children until they notified and obtained authorization by the parents? 

“The parents have been completely supportive of it, in fact advocating our detectives do that for the benefit of excluding their children,” Ramos said. “We’ve gotten a lot of positive feedback.”

But one parent who said her son was interviewed wasn’t happy with the process.

“My child’s in a room with two detectives being questioned and grilled and I’m sure he was quite frightened, which is very upsetting,” Michaela Brown told the Los Angeles Times.

Under the circumstances, the death of a young girl in the balance, most parents would have little issue with the police, or more likely someone more benign like a school nurse, taking a cheek swab.  Had the police obtained the consent of the parents of these children, there would be no issue here,  To suggest, as Deputy Ramos does, that they’ve gotten “positive feedback” strikes me as absurd. Did the parents urge the cops to do DNA tests more often, just for fun?  While some might be willing to endure the interrogation and testing of their child, there is nothing about this that strikes me as being positive.

The comment by parent Michaela Brown, on the other hand, seems far more likely, and rational.  There is no child in a room with two detectives who isn’t frightened, who doesn’t feel coerced into complying.  Most adults would feel that way, and it would take an enormously tough kid to not feel coerced to submit to the shield.

And what does the  school have to say about their decision to provide police with unfettered access to the students without parental consent?

Administrators at Albert Einstein said they met their legal obligations by calling the parents and telling them what was happening, though in at least one case a voicemail message was left for a parent.

“Any time authorities come to our school and want to talk to our students, our first priority is to make sure we let parents know immediately,” said Gabe Ross of the Sacramento City Unified School District.

Apparently, the word “immediately” in Sacramento means after the cops are done interrogating and collecting DNA from a child.  But since all the “experts” agree, why should parents (or old lawyers) take issue with the government doing as it pleases with children.

Adding the word “virtual” before an otherwise neutral noun makes it not only sound hipper and cooler, but allows us to pretend that none of the aspects of responsibility that tether us to unpleasant reality apply.  With law, but with interactions as well.  MIT professor  Sherry Turkle explains in the New York Times :

We’ve become accustomed to a new way of being “alone together.” Technology-enabled, we are able to be with one another, and also elsewhere, connected to wherever we want to be. We want to customize our lives. We want to move in and out of where we are because the thing we value most is control over where we focus our attention. We have gotten used to the idea of being in a tribe of one, loyal to our own party.

In the silence of connection, people are comforted by being in touch with a lot of people — carefully kept at bay. We can’t get enough of one another if we can use technology to keep one another at distances we can control: not too close, not too far, just right. I think of it as a Goldilocks effect.

The perfect way to foster and grow a virtual world around us, with exactly as much (or little) interaction as we desire, and offering only the succor and comfort we seek. It’s a wonderful, addictive experience, but for one problem. It’s a virtual lie.

We are tempted to think that our little “sips” of online connection add up to a big gulp of real conversation. But they don’t. E-mail, Twitter, Facebook, all of these have their places — in politics, commerce, romance and friendship. But no matter how valuable, they do not substitute for conversation.

Lawyers are no less engaged in living this lie than anyone else, but unlike those who merely delude themselves into believing they are surrounded by supportive friends, many lawyers use it in lieu of professional growth and the often harder, and harsher, process of learning that a lawyers’ life isn’t easy, pleasant and fuzzy. 

Connecting in sips may work for gathering discrete bits of information or for saying, “I am thinking about you.” Or even for saying, “I love you.” But connecting in sips doesn’t work as well when it comes to understanding and knowing one another. In conversation we tend to one another. (The word itself is kinetic; it’s derived from words that mean to move, together.) We can attend to tone and nuance. In conversation, we are called upon to see things from another’s point of view.

At a time when the economy and job market suck, when the once-rosy prospects of a future as wealthy, or at least financially stable professional, lawyer seem at best a fond memory of a past age, technology swoops in to make young lawyers feel better about themselves, or at the very least provide company in their misery.  As they search for answers, they find the answers they want to find, “sips” from people who they have never met, know nothing about, with only avatar pictures to ground them, but who say the words you want to hear.

Take a look at the people with whom you twit, who you follow and engage.  Are they people who will tell you when you are about to do something questionable, or will pat you on the back and tell you how much they care about you?  Does it make you feel important and worthwhile to be acknowledged by someone you think is more worldly and well-regarded than you?  And if they say a kind word to you, do you take that as approval?

The cult of positivity online has already been discussed at some length, reflecting everyone’s desire to establish themselves as a virtual force in their virtual world.  When the cold, hard real world doesn’t provide you with the ease and comfort of the digital one, do you log out of life and wrap yourself with Facebook friends?

And we use conversation with others to learn to converse with ourselves. So our flight from conversation can mean diminished chances to learn skills of self-reflection. These days, social media continually asks us what’s “on our mind,” but we have little motivation to say something truly self-reflective. Self-reflection in conversation requires trust. It’s hard to do anything with 3,000 Facebook friends except connect.

It’s long been my suspicion that many young lawyers know that they’re skirting the fundamental rules they learned in kindergarten, about competence and ethics, about obligation and responsibility.  They know that there is no magic bullet that will transform their misery to fabulous wealth and success overnight, if only they fabricate an internet existence that stands in stark contrast to reality.  But they can avoid self-reflection by immersing themselves in a world that will never say anything meaningful, but will always tell us what we want to hear. 

While Turkle suggests that connection and trust are unrelated, thus inhibiting true self-reflection, she ignores the cult of positivity aspect of the internet.  Your 3,000 Facebook friends will tell you the dress doesn’t make your butt look fat, just because no one wants to be mean.  Of course, that doesn’t help alter the fact that your butt looks fat, and diminishes trust because no half-wit thinks they can trust the always-positive, never-mean friends to tell the truth.  Or, if you want to wear the dress, then it merely confirms what you want to hear and you walk away wearing the dress you want with your fat butt behind you.

WE expect more from technology and less from one another and seem increasingly drawn to technologies that provide the illusion of companionship without the demands of relationship. Always-on/always-on-you devices provide three powerful fantasies: that we will always be heard; that we can put our attention wherever we want it to be; and that we never have to be alone. Indeed our new devices have turned being alone into a problem that can be solved.

With this brave new world of the internet, we can find someone to tell us whatever we want to hear, to comfort us when we’re down and rub our tummies when they need a sweet rub. But it’s a self-indulgent fantasy.  The real world, like real communication, isn’t always easy or happy, comforting and comfortable.  And what we do as lawyers is as real world as it gets.  Enjoy the toys, but never forget what’s real. Your clients won’t.