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.

I was sitting on a bench in Cambridge on a fabulously sunny April day, watching awkward but happy kids rush by with important things to do.  In my hand was a bottle of spring water, handed out to old folks like me to give us the impression that someone cared deeply about us without adding too much to the cost of the weekend. The industry of Cambridge, Massachusetts is education.

After attending a handful of lectures and panel discussions, where serious but empathetic people used every Latin variation of supporting and nurturing in each sentence, I had wandered around until I heard a young man ask for a second copy of the weekend’s itinerary. His was gone, whether lost or swiped, and he had no idea what to do.

In a voice dripping with empathy, an official woman explained that they only had one copy of the booklet per student, and couldn’t possibly provide him with another. With puppy dog eyes and a tone usually reserved to gush at ugly babies, she told him how deeply sorry she was, and suggested that he retrieve the itinerary via a smart phone.  He didn’t have a smart phone. His parents failed him by not earning enough money to arm him with a technological alternative. 

Hearing this, and being the sort of guy who can’t keep his nose out of other people’s business, I asked the official woman whether the young man was supposed to wander aimlessly for the next few days, and didn’t they anticipate that a few young people, through no fault of their own, would end up without the vital itinerary?

She explained to me, in the patient voice one uses when speaking with someone intellectually challenged, that they simply didn’t have enough to hand out seconds.  I explained that when his parents got their tuition bill, the last concern they would have was the school’s poor planning and its consequent refusal to provide any help to a lost kid.  I also gave her the evil eye.  She gave the young man a second itinerary.  Apparently, they had a few extras.

I sat on the northerly side of the bench, when a woman with eyeglasses and two young children in tow sat down next to me, exhausted.  We started chatting, because that’s what parents do at these things. She told me her daughter was the first of four to leave the nest. She had 17 more years of college to pay for. I softly mentioned something about weddings, but decided not to talk about ice sculptures. It would have been cruel.

After exchanging vital statistics, the woman asked me if we had heard yet from financial aid. She told me she was asking everyone, as it was killing her and her husband.  They got squat.

“They say that they offer very generous financial aid. What a load of crap.”  This was clearly weighing heavily on her, which is understandable as I watched her two young’uns run around.  She explained that she and her husband both worked, decent jobs but not quite hedge fund managers. Realizing that they had children from the constant demand for food, they scrimped and saved. She had no smart phone either, like the young man who lost his booklet. She chose to clip coupons so that she wouldn’t have to fear a bad day at work leaving her children hungry.  This was they way she lived her life.

Other people don’t worry as much. They have more fashionable clothes and shinier toys. We see all the people who have stuff. I often wonder how they afford it, but others wonder where they got it so they can get it too. 

The worried woman next to me explained that because she had saved her pennies by depriving (though she would never describe it as deprivation) herself of this things that others had, she found herself in an awkward position.  Her family earned no more than others, but because they didn’t squander their earnings, received essentially no financial aid. They had to pay full freight, though it would be impossible on their income and would require them to use their life savings. 

By the time the tuition for their first child was paid, they would be destitute. The years of savings, of self-denial, leading to this point would be disappear with a poof.  It would disappear just as surely as if they had bought new cars every three years. Expensive, cool new cars. The good news was once they were rendered indigent, their remaining children would be given a need-based free ride.  The joys of poverty. It was all she could see in her future.

She explained that they had lived their lives according to core values of never spending more than they could afford, saving for a rainy day, being self-sufficient and living within their means.  She told me that she never went on fancy vacations or wore the latest fashions.  And yet, they would be as broke as the family that pissed away every dime they had, and then some, when the tuition bills came due. Other people, the ones with nice cars, cool clothing, smart phones, would receive substantial financial aid to make college affordable.  She had to pay until there wasn’t a dime left.

She asked me if I understood.  I told her I did.

Her youngest was tugging at her sleeve, asking if she could get something to eat.  She said it was nice talking, and wished me the best of luck.  I wished her the same, knowing that luck had nothing to do with it. As she walked away, I sucked down the last of my free bottled water, and watched the young people going by, so wonderfully happy, carefree and filled with the promise of their future.

You probably wonder what exactly are the criteria for having a great future in forensics.  Years of college and post graduate studies? Years of experience in the trenches?  Brilliant articles published in respected scientific journals?

How about the ability to draw a picture on the back of a match book? Not even that much.

Via Keith Lee, Leah Bartos reveals the deal at ProPublica :

This is how I — a journalism graduate student with no background in forensics — became certified as a “Forensic Consultant” by one of the field’s largest professional groups.

One afternoon early last year, I punched in my credit card information, paid $495 to the American College of Forensic Examiners International Inc. and registered for an online course.

After about 90 minutes of video instruction, I took an exam on the institute’s web site, answering 100multiple choice questions, aided by several ACFEI study packets.

As soon as I finished the test, a screen popped up saying that I had passed, earning me an impressive-sounding credential that could help establish my qualifications to be an expert witness in criminal and civil trials.

For another $50, ACFEI mailed me a white lab coat after sending my certificate.

How cool is that! And now you can take the witness stand, make up crap and put people in prison for life. Or longer!

Whether hair, fiber, fingerprints, ballistics and, if they get their way, soon to be duct tape, experts take to the stand and opine in such a way as to reach conclusions that jurors are incapable of reaching on their own.  The idea was that jurors lacked the education and experience, when it may mean nothing more than jurors never put their $495 on the table.

Over the last two decades, ACFEI has emerged as one of the largest forensic credentialing organizations in the country.

That’s right, it’s take seriously.  Deadly seriously. It doesn’t mean that some people who are putatively competent to serve as “experts” aren’t worthy of credentals, but rather than ACFEI is a mill, and anybody, competent or otherwise, can be an expert if they have a spare hour and a half of their life.

Anybody?  Yes, anybody:

But ACFEI also has given its stamp of approval to far less celebrated characters. It welcomed Seymour Schlager, whose credentials were mailed to the prison where he was incarcerated for attempted murder. Zoe D. Katz [5] – the name of a house cat enrolled by her owner in 2002 to show how easy it was to become certified by ACFEI — was issued credentials, too. More recently, Dr. Steven Hayne [6], a Mississippi pathologist whose testimony helped to convict two innocent men of murder, has used his ACFEI credential to bolster his status as an expert witness.

Not only is the credentialling available from ACFEI nonsense, but the very efficacy of soft forensic sciences is a product of wholesale fabrication, which used enough in court creates a veneer of reality that eventually is believed by judges, juries and the publc.  Want to become a duct tape expert? Just create the American Society of Duct Tape Examiners, and put out the Duct Tape Science Review every quarter.  In no time, it will be real and you will be the foremost duct tape expert in the country.

When somebody is found with duct tape on their nasty dead body, you will be the first person GMA calls for comment. Make sure you have a clean suit available.  And this really cool certificate.

The word “sorry,” in all its varied permutations, raises all sorts of problems when there’s  war going on.  If the words are said, it blunts the anger. It makes the speaker appear kinder, and forces the hearer to temper anger with grace or look lose the moral high ground.

Of course, it’s also an admission, if not handled gingerly.

Mark O’Mara handled it with skill. He put Zimmerman on the stand in a bail hearing to speak the word. From the New York Times :

“I wanted to say I am sorry for the loss of your son,” Mr. Zimmerman, 28, said in a soft voice from the stand, dressed in a dark suit, with his hands locked in cuffs, and shackles at his feet and waist. “I did not know how old he was. I thought he was a little bit younger than I am. And I did not know if he was armed or not.”

The lawyers for the Martin family immediately attacked Zimmerman’s apology,

Describing Mr. Zimmerman’s apology from the stand as “self-serving,” Mr. Crump said he considered it a ploy to help win his release from jail and curry favor with the court and the public through the news media.

This may well be true, but it was a damn fine ploy.  And a ploy that the Martins handed Zimmerman, and O’Mara, on a platter.

Mark M. O’Mara, Mr. Zimmerman’s lawyer, said he had asked that Mr. Zimmerman be allowed to apologize privately to the parents, but the request was rebuffed. He said Mr. Zimmerman wanted to answer the three questions that he had heard Mr. Martin’s mother raise during a television interview.

“He answered very specifically the three questions posed by the mother: Why haven’t you apologized? Did you know he was a teenager? And did you know he was unarmed?” Mr. O’Mara said.

The Martins teed up the ball, and Zimmerman hit it out of the park, whether you buy the apology or not.  After news broke of the hearing, my old pal Dan Abrams was on TV non-stop talking about how shocking this was, that Zimmerman said he was sorry.  Danny said that in his experience, such a thing had never happened before.  This was curious, given that his experience was limited to sitting in a TV studio with a camera aimed at his head.

It seems too obvious for words that this is not your garden variety criminal case.  While no case is garden variety, but just treated that way by lawyers and judge, this one really stands apart for the curious facts and overkill attention.  As much as this type of attention will wreak havoc with the system, it similarly offers certain opportunities for an adept lawyer to use it to his advantage. O’Mara did so deftly. 

Unlike Dan Abrams, O’Mara saw beyond the routine and came up with a way to seize the opportunity to make one of the most hated men in America a kinder, gentler guy.  It was a brilliant move.

Was Zimmerman’s apology sincere? Who knows. There’s no way to know what he feels.  Some of you will be so ridiculously arrogant as to argue one way or the other. You don’t know. I don’t know.  He may well have gained a benefit from sitting on the stand and saying sorry, but that doesn’t mean it wasn’t real.  Don’t try to guess, It only makes you look foolish.

What you should appreciate is how Zimmerman’s lawyer seized the opportunity to use the “sorry” card to his advantage, regardless of whether it was sincere.  When a defendant doesn’t say sorry, it’s the first thing thrown in his face by the family of the victim. They hold the natural high ground, having suffered grievous loss without any possibility of fault.  They almost can’t say the wrong thing.  Almost.

A huge problem that arises when they complain about the lack of apology, then refuse to let the defendant apologize. It’s the one thing a victim/family can’t do, be disingenuous.  The Martins’ lawyer, Benjamin Crump, is busy screaming about Zimmerman putting on a show for the media and the judge, which may indeed be true, but he made the show not only possible, but a sure-fire hit.

As cases receiving exorbitant media attention are frequently a great place to learn what not to do, this one stands in stark contrast at the moment.  As much as the media can be a nightmare, it can also offer opportunity for the lawyer who keeps his eyes open and sees the chance to exploit a weakness in the news cycle.  If you look at it like Dan Abrams, devoid of thought, understanding or originality, you will never see these opportunities.

Mark O’Mara saw it and seized it.  No one can ever take Zimmerman’s apology away from him. It’s been said, and it’s now a permanent part of the narrative. Well done.

Three days ago, Julian Heicklen advised SDNY Judge Kimba Wood  Judge Wood agreed.

Not so much with Heicklen’s letter, which wasn’t worded in such a way as to ingratiate him with the court, but that the charge must be dismissed.

But the judge, Kimba M. Wood of Federal District Court, wrote that a person violated the jury tampering statute only when he or she knowingly tried to influence a juror’s decision through a written communication “made in relation to a specific case pending before that juror.”

Judge Wood added that she would not “stretch the interpretation” of the statute to cover speech that was “not meant to influence” a juror’s actions in a specific case.

This was a difficult case.  Not necessarily because it raised such difficult issues of law, which makes one wonder what the heck U.S. Attorney Preet Bharara was thinking when he authorized this insanely foolish prosecution that couldn’t possibly end well for him.  That didn’t necessarily mean it would end well for Julian either.

Julian Heicklen did every thing in his power to lose this case.  He did things others wouldn’t even dream of to antagonize everyone involved, from the judge to the lawyers who served his interests, despite his refusal to cooperate and seizing every opportunity to make their job impossible. Talk about a difficult client.

Given the circus-like atmosphere of this case, and Julian’s conduct throughout, it either tested Judge Wood’s patience or gave her chambers some great laughs.  I suspect the latter.  It’s hard to stay angry at a fellow who opens his letters, “Dishonorable Judge Wood ” and closes them, “Yours in disgust and hatred.”  Come on, this is good stuff.

Despite all the shenanigans, the legal team never stopped doing its job, and Judge Wood made the right and reasonable decision.  Julian Heicklen will be in front of 500 Pearl Street come next Monday handing out jury nullification leaflets.

A bit after mid-day, he will break for a victory luncheon in honor of the lawyers he discharged three days ago, He’s inviting restaurant suggestions and his fellow “tyranny fighters” to join him.  Bring money to pay for lunch.

As for the significance of this decision, Julian Heicklen said it best in his email to his tyranny-fighting friends:

One small step for a shabby old man, but a giant leap for justice and our country.

Whether this is true has yet to be seen, but you gotta admire Julian’s sense of humor. I wonder if everyone else involved in this case will agree.

Kids are cute. So are puppies. Stories about kids and puppies warm our hearts. Except when the stories are about  kids arrested or puppies killed.

There is a constant struggle in writing about the never-ending stream of seemingly inexplicable things that happen in the law. Should the story be funny or absurd? Should it be outrageous and angry? Many in the blawgosphere have chosen to write short blurbs rather than analysis, both because it’s a lot easier than the unnecessary effort of thinking and people enjoy reading short blurbs more than lengthier posts.  Bites of information are enough. Small bites are even better.

There are times when the posts here leave me feeling rather morose.  That a kid was arrested or a puppy killed almost always carries a message or lesson, and the failure to discuss it reduces a writing to an amusement.  I’m not here for your amusement.  There are plenty of others who can entertain you, appeal to your bias, feed your insanity or provide easily digestible bits of information without requiring you to expend any effort in thinking. Not me. Not here.

But then, humor and brevity are virtues as well.  Many points are best made using humor, and the point, well, is to make the point.  If humor is the most effective delivery method, why not?

And what purpose is served by boring a reader with labored rhetoric when ten words will do?  If the point can be made in fewer words, then only a crappy writer would use more.

These are issues I’ve been struggling with lately. A lot of blogs have strayed from thoughtfulness into the easy realm of aggregator, listing a string of stories of interest with no value added.  Others relate stories that are funny or ironic, though the subject isn’t always well-suited to humor.  Some have become soapboxes of self-indulgence, intellectually dishonest in their analysis and serving only to promote the writer’s point of view to those stupid enough to blindly accept it.  And others are just crap.

When  Kevin Underhill wrote about a 6 year old Georgia girl who was taken from school in handcuffs, he found the humor in the fact that this was how the cops dealt with a little girl. 

• Police in Milledgeville, Georgia, said they don’t discriminate when it comes to detainees, all of whom get handcuffed and taken to the station in the back of a squad car. That includes “age discrimination,” the chief said, explaining why his officers  cuffed a six-year-old girl who was throwing a tantrum in her kindergarten class. The girl was charged with assault and damage to property, “but will not have to go to court because of her age.” That’s because SHE IS SIX.

Does it really require any more analysis? Apparently it does, as Kevin felt compelled to update his post:

• Update: Some think cuffing the six-year-old might have been a reasonable response under the circumstances, and I guess I should defer to those who have children or have been attacked by some. It isn’t the cuffing that really bothers me, to be honest — personally, I think children should be kept in a pit until they turn 18 — but rather what seems (at least at first glance) like an overreaction by police and administrators. But maybe in this case there was truly no other choice. Well, there’s always the pit, or a quick tranquilizer dart and then the pit, but maybe no other reasonable choice.

It kinda sucks some of the fun out of the post, and as soon as that happens, the message sent via humor is not merely lost, but subsumed by the mirthless.

In his ongoing series on Puppycide, Radley Balko does the dirty deed of not letting the needless shooting of a puppy go unnotice.  At first, there was some discussion of how and why this happens.  Now, that it happens is enough, with barely a dozen words needed to amplify the message.

In audio captured on Officer Griffin’s dashboard camera, you can hear the officer give Paxton commands to put his hands up and to control his dog. Austin police removed a few seconds of the tape where Griffin fatally shoots the dog.

“Why didn’t you get your dog when I told you to get your dog?” questioned Officer Griffin.

Is it really necessary to parse the details so that readers understand that the guy can either put up his hands or control his dog, but not both?  The dog was doomed, and Paxton couldn’t be sure he wasn’t next.

On the bright side, the issue of how to present stories that need airing, issues that people ought to think about, can at least be considered because guys like Kevin and Radley do the cooking so you can easily digest their feast. 

So many others are feeding you spam, hoping you’re too stupid to realize that it tastes awful. The blawgosphere is becoming a fast food strip mall, and that seems to be good enough for most people.  If so, what’s the point of serving up anything that takes some effort to digest?

The saga of Queens Supreme Court Justice Joel Blumenfeld’s attempt to do his job in the face of District Attorney Richard Brown’s attempt to stop him has taken some  odd twists and turns along the way, but finally resulted in a decision. 

Brown’s writ of prohibition was denied last October, in a curiously cautious decision, freeing Justice Blumenfeld to rule on the propriety of the scam used to get defendants to give up their constitutional right to remain silent. Via  Dan Wise at the New York Law Journal, the decision is in :

Acting Supreme Court Justice Joel Blumenfeld (See Profile) ruled on April 16 that the Queens district attorney’s program of interviewing suspects while they are awaiting arraignment is “misleading and deceptive,” and violates New York State’s Rules of Professional Conduct.

Blumenfeld found the interview process deceptive because it “misleads the defendant into believing that the prosecutor is there to help him out” by suggesting that the prosecution will investigate “his side of the story.”

But, the Queens judge said, “none of that occurred here.”

Of course “none of that occurred here.” It was a lie. A scam. A ruse to get the defendant to make a statement by deceiving him into believing that the prosecutors were just a bunch of nice guys trying to help the defendant out by, you know, being fair and all. Because, well, that’s just the type of guys they are. Sweet.

Rather than suppress the statements obtained by deceiving the defendant, Justice Blumenfeld imposed the remedy of “preclusion,” meaning that the statements couldn’t be used by the prosecution in their case in chief.  And this is exactly what Brown feared.  With good reason.

In a statement issued after the ruling, Brown laced into Blumenfeld for inventing “a remedy of his own creation to ‘preclude’ the introduction of the statement that he could not legally ‘suppress’—a distinction without a difference but one that was selected in an apparent attempt to thwart any further appellate review.”

Brown continued, “His ruling is exactly as we had predicted in our prior Article 78 proceeding.” He called the decision “an attack on our office’s ethics done in a manner designed to prevent us from defending ourselves.”

Brown’s ire at this “attack” on his office’s ethics would resonate better but for the fact that the deception was outrageously unethical.  If there was any doubt, consider the statement by John Ryan, his chief assistant:

Chief Assistant District Attorney John Ryan vowed in an interview after the brief court session to pursue an appellate remedy and said the office had no intention of dismantling the interview program, which started in 2007. Since then, 9,744 suspects as of April 6 have been interviewed, of whom 63 percent either confessed or made a statement about the crime, according to statistics provided by the district attorney’s office.

The problem isn’t that the program has any ethical justification whatsoever, as it’s artfully designed to subvert the 5th Amendment rights of defendants and circumvent Miranda.  No, the problem is that the program is really effective, and they get a lot of confessions from it.  Of course, it would be really effective too if the cops could just break into houses at will to search for bad stuff inside.

Despite the length of time it’s taken for a judge to rule on the impropriety of this scheme (of which variations are still being employed elsewhere to get defendants to talk rather than exercise their right to remain silent), it’s still not over. What the Appellate Division, Second Department will do with it remains to be seen.

In the meantime, it’s important to note that this deceptive conduct, this scheme to screw with defendants by deceiving them into thinking that their statements could set them free, was ignored when challenged until Justice Blumenfeld showed the courage to do his job. 

This particular case has been going on since 2009. How many defendants have been deceived since then to get them to talk?  How many more will do so while this issue makes its way through the system?  And “Get Down” Brown is worried about his office looking bad? 

According to Raymond Wiss, the attorney for the Bogota, New Jersey Police Department, the only reason for seeking the discharge of Officer Regina Tasca was her “bizarre and outlandish” conduct.  While it’s not clear why he chose the word “outlandish,” her conduct most certainly was bizarre.

Plenty of cop “beat downs” can be found online, but how often does the officer who stops others from handing out the beating get fired for it? That’s exactly what’s happening to Officer Regina Tasca in the Bogota Police Department.

Tasca’s dashboard camera captured her as she attempted to stop two officers from beating an emotionally disturbed young man. Just days after the incident, she was told she was being suspended with pay. A year later, her trial is about to begin as the Bogota PD seeks to fire her.

Tasca described what we see on the videotape: “The Ridgefield Park officer automatically charges and takes him down to the ground. I was quite shocked. As he’s doing that, another Ridgefield Park officer flies to the scene in his car, jumps out and starts punching him in the head.”

On the tape you can hear Tara, the mother, and Kyle, her son, screaming, “Why are you punching him?” and “Stop punching me!”

The two Ridgefield Park Sergeants are never heard refuting the claims that they punched the 22 year-old man as he was waiting for an ambulance.

Even worse, Kyle was never charged, nor arrested, for any offense. Tasca says it’s because he never threatened, did not have a weapon, and indeed never resisted and was not violent. Eventually Tasca was able to pry the punching Ridgefield Park officer off Kyle…

It isn’t just that cops don’t rat out other cops, it’s that those who do obviously have psychological problems. It’s a chilling thought. It also sends a pretty clear message to other well-meaning cops. Cross the blue line, and you may not only lose your job, we’ll also publicly question your sanity.

If the New York City police department is a festering cesspool of racism, why is it that African American police officers (of which there are many) don’t stand up and say something?  Well, this time they are.  From the Daily News :

There was outrage across twittersphere the other day, when news broke that @Sir_Olly_C was convicted in the Motherland for using a nasty word.

I’ll repeat that shall I … if only to try and convince myself that I’m not dreaming … calling someone the C word is a terrible crime that will see you in court, prosecuted, found guilty and facing a custodial sentence. That’s official because the blogger and tweeter, Olly Cromwell, has today been found guilty under Section 127 of the Telecommunications Act 2003 of making a grossly offensive and menacing comment on Twitter.

Apparently, Olly called a Bexleyheath councillor a cunt, on Twitter, and a District Judge has now referred Olly To Bromley Court for sentencing. The prosecution are asking for a custodial sentence equal to 45 days for each letter.

This, of course, didn’t happen in the land of the free, but where Anglo-Saxon reigns. Aside from thinking ill of George Washington, the Brits have no cherished First Amendment, their freedom of expression stemming from noblesse oblige rather than than any inalienable right.

And yet, as nasty language on the internet crosses borders, some of which may include the use of words for which more delicate souls feel compelled to substitute asterisks for letters lest eyes pop out and heads explode, what happened to Olly Cromwell under whatever passes for law in England is a matter of concern to all.

The word at issue is a particularly unpleasant one. I don’t care for it, personally. I wouldn’t use it in my writing under most circumstances. But because it’s at issue here, it needs to be done: cunt. No asterisks, as if that somehow permits sensitive teacups to pretend their eyes haven’t truly happened upon this word.  It’s a collection of four letters. It’s a word like all the others we use. For whatever reason, it sounds foul to most of us. But it’s still just a word.  Have we learned nothing from Lenny Bruce?

As it turns out, this story, like most, is somewhat more (and less) involved than first appears.  At Beneath the Wig, Brit blogger Wiggy (who goes by the twitter handle @_MillyMoo. I suspect she has a real name, but I can’t find any indication of it at her blog and it says only “Milly B” on twitter) offers the substance of the charge.

 Has there been an assault on freedom of speech? Is a man about to go to jail for swearing on Twitter? Should indeed the Bexley one, John Graham Kerlen*, who tweets under the name @Sir_Olly_C, be freed, although he has not yet been sentenced? Is this a ‘bad law’ story demonstrating that the law is, as it sometimes can be, an ass, or is the story more complicated than may at first appear?

John Graham Kerlan was found guilty on Friday 13th April of an offence contrary to s127 Communications Act 2003…

Notably, Milly has outed the foul-mouthed perpetrator, though his name plays no particular role in what happened.  This wouldn’t be worth noting, except that Milly B, or Millymoo, or Wiggy, or whoever, writes under a pseudonym.  If names are going to be named, start with yourself.

So what heinous conduct was committed by Kerlan in violation of British law?

The conviction relates apparently to two tweets, posted by Mr Kerlan. The first was a picture of a house belonging to a Bexley councilor, saying:

Which c*** lives in a house like this. Answers on a postcard to #bexleycouncil.

The second said:

‘It’s silly posting a picture of a house on Twitter without an address, that will come later. Please feel free to post actual shit.’

Also worthy of note is that Wiggy/Milly replaced three letters in the first twit with asterisks, though it’s unclear whether this was in deference to the delicate sensibilities of her readers or a reflection of her own hatred of letters.

The test of whether these twits break the law is, per Wiggy/Milly, the “reasonable man” test, apparently because they have no reasonable persons in Britain.  Attributing reasonableness to herself (particularly troubling when the self-ascribed reasonable man is pseudonymous), Milly/Wiggy concludes:

The test for ‘grossly offensive’ is whether the message would cause gross offence to those to whom it relates, regardless of whether they were the recipient.  Would the reasonable man, looking at that, be able to say that the person to whom those tweets relate, would find them grossly offensive? I’d say so.

Are they menacing? Would the reasonable man, looking at those tweets, consider that the person to whom then related would find them menacing? Again, I’d say so – I certainly would.

Guilty!  Not, as the Philistines on twitter cry, because Kerlan uttered the c-word, but because the word “cunt” struck Milly/Wiggy as “grossly offensive.”  While she posits that the test is the reasonable man, what she argues is that the test is “whatever I personally find grossly offensive.”  And as the use of asterisks suggests, Wiggy/Milly’s threshold is fairly low.

But what of freedom of speech, you ask? 

Finally, turning to the cries of assaults upon freedom of expression, it has to be remembered freedom of expression is a qualified right. The higher courts have already considered the balancing of freedom of expression with section 127, and came to this conclusion:

‘Section 127(1)(a) does of course interfere with a person’s right to freedom of expression. But it is a restriction clearly prescribed by statute. It is directed to a legitimate objective, preventing the use of a public electronic communications network for attacking the reputations and rights of others. It goes no further than is necessary in a democratic society to achieve that end.’

Lord Bingham, DPP v Collins ( here ).

This is where we come to an appreciation, however small, of our founder’s inclusion of freedom of speech in the Bill of Rights, a fundamental distinction that we may not sufficiently appreciate in the absence of such a stark contrast as that quoted by Milly/Wiggy.

The Brits adore free speech, until it rankles someone, at which point it’s a crime. The restraint is “directed to a legitimate objective” of not attacking the reputations and rights of others. And if your purpose is to attack the reputation of others because they deserve to have their reputations attacked?  Crime.  And what rights of others are at stake, the right not to be called a nasty name?  Is any of this sounding familiar?

In summary, swearing on Twitter is not a crime. Frankly, only a silly c*nt would think so. But being menacing, or being grossly offensive? That is.

Before you laugh at this gaping intellectual void, consider that this is precisely what  legislature after legislature is trying to do across the country.  And just like Wiggy/Milly, they attribute reasonableness to themselves as well, at the expense of a firm grasp of what constitutes free speech.

*  It’s unclear whether the name is Kerlen and Kerlan, as Milly/Wiggy uses both spellings.

Update: Ask and you get answers.  It appears that Wiggy/Milly is Amanda Bancroft, who writes on this subject at The Guardian.  Her bio there says:

Amanda Bancroft is a former practising barrister who has a keen interest in legal issues. She blogs at Beneath the Wig and is putting together the 58% Campaign, aiming to educate on the whole picture of rape.

Perhaps this has a little something to do with her finding a word “grossly offensive?”

Update 2:  On twitter, Amanda asserted that this post was “a somewhat unfair representation” of her argument, so I  invited her to correct me:



I include an image lest I be accused of further misrepresentation. I hate to misrepresent. It speaks poorly of me.

Sadly, after announcing that I had misrepresented her and that she would correct me, there was nothing forthcoming.  I expressed my disappointment to my pal Antonin Pribetic, the Trial Warrior.



And why bother, you wonder, to update this post to include this exercise in passive-aggressive denial? Amanda, the former practicing barrister, has chosen to play legal pundit on the internet, a fine endeavor in itself but one that subjects her views (and particularly her self-described reasonableness in contrast to all who disagree, who are by definition unreasonable) to scrutiny.

We are awash in the blawgosphere and the media with punditry, much bordering on horribly bad and some the absurdly, dangerously ignorant.  If someone thinks their opinion worthy of publication, so valuable that others should read it and heed it, then they can’t whine about it being subject to criticism.  And it’s fine to disagree with the criticism, but then you have to actually say something.

The blawgosphere is getting increasingly inundated with bad advice, flawed reasoning, and in some instances, utter lies and deceptions.  It makes people stupider. Amanda didn’t help, either herself or anyone else.