You don’t remember Hawley? He was the head of the Transportation Security Administration way back in 2005.  And now he’s talking.  From the Wall Street Journal :

Airport security in America is broken. I should know. For 3½ years—from my confirmation in July 2005 to President Barack Obama’s inauguration in January 2009—I served as the head of the Transportation Security Administration.

You know the TSA. We’re the ones who make you take off your shoes before padding through a metal detector in your socks (hopefully without holes in them). We’re the ones who make you throw out your water bottles. We’re the ones who end up on the evening news when someone’s grandma gets patted down or a child’s toy gets confiscated as a security risk. If you’re a frequent traveler, you probably hate us.

Or if you’re a child, or disabled or a parent. Or if you’re elderly or prefer not to have strangers’ fingers touching your breasts or your vagina. Or if you breath.

Hawley goes on to explain why, as pretty much everyone not receiving a government paycheck already knows, airport security is a game played for the benefit of grocery clerks and blue-shirts, with the very best of bureaucratic intentions, all at the expense of the flying public.

More than a decade after 9/11, it is a national embarrassment that our airport security system remains so hopelessly bureaucratic and disconnected from the people whom it is meant to protect. Preventing terrorist attacks on air travel demands flexibility and the constant reassessment of threats. It also demands strong public support, which the current system has plainly failed to achieve.

The crux of the problem, as I learned in my years at the helm, is our wrongheaded approach to risk. In attempting to eliminate all risk from flying, we have made air travel an unending nightmare for U.S. passengers and visitors from overseas, while at the same time creating a security system that is brittle where it needs to be supple.

In 2012, Hawley offers insights. In 2012, of course, Hawley has no control over much of anything.  Two questions emerge:  Why is Hawley so much smarter now than he was from 2005 to 2009, when he was in charge of the TSA?  Why did it take Hawley so long to grow a pair and show the guts to speak up?

Hawley goes on to explain how we arrived at such a sorry state of affairs, a crisis bred fear. Fear bred a knee-jerk demand for safety, but there was nothing in place to accomplish the security sought. So the government largely made it up, doing what seemed like a good idea at the moment.  Today, we attribute the birth and growth of TSA screening methods to venal motives.  According to Hawley, it was just plain, old stupidity. They had a problem and no real clue how to solve it. So they just made stuff up that seemed, to a bunch of people who had no real clue, like it ought to work.

The procedures then became part of the bureaucratic myth, the internal inertia that once done cannot be undone.  It became what they do, and they did it, and we suffered for it.

Most fascinating is that the concern wasn’t to seek the input and methodology of security experts, but rather management consultants to speed up the lines.  Rather than ask the question, why are we doing this, the primary focus was how can we make people hate us less.

The airport checkpoint as we know it today sprang into existence in spring 2002, over a month and a half at Baltimore/Washington International airport. New demands on the system after 9/11, like an exhaustive manual check of all carry-on bags, had left checkpoints overwhelmed by long lines and backlogs. A team of management consultants from Accenture delved into the minutiae of checkpoint activity at BWI: How long did it take to pass from one point to another? How did the behavior of travelers affect line speed? How were people interacting with the equipment?

After all, if they could move people quickly, the initial complaints about long lines and delays would make the larger issues disappear.

Clearly, things needed to change. By the time of my arrival, the agency was focused almost entirely on finding prohibited items. Constant positive reinforcement on finding items like lighters had turned our checkpoint operations into an Easter-egg hunt. When we ran a test, putting dummy bomb components near lighters in bags at checkpoints, officers caught the lighters, not the bomb parts.

I wanted to reduce the amount of time that officers spent searching for low-risk objects, but politics intervened at every turn. Lighters were untouchable, having been banned by an act of Congress. And despite the radically reduced risk that knives and box cutters presented in the post-9/11 world, allowing them back on board was considered too emotionally charged for the American public.

Missing from Hawley’s epiphany is that he was made the head of the TSA, a position where he could have come forward to announce to the world, as he does here, that we’ve created a system that serves little purpose while simultaneously making the lives of millions miserable.  He whines about the bureaucracy, the politics, the hard work of being a TSA screener, but he does it now, three years after he’s left office.

Airport security has to change. The relationship between the public and the TSA has become too poisonous to be sustained. And the way that we use TSA officers—as little more than human versions of our scanners—is a tremendous waste of well-trained, engaged brains that could be evaluating risk rather than looking for violations of the Standard Operating Procedure.

So Hawley concedes that he presided over a bureaucracy that institutionalized failure at the expense of Americans, yet never uttered a negative word.  Of course, in 2012, he’s got plenty to say.  It’s just that he’s got neither power nor authority to do a damn thing. 

For those of you who were subjected to the humiliation, degradation, and perhaps even prosecution for not showing the TSA the respect and admiration the blue-shirts demanded, no doubt you feel vindicated by Hawley’s revelations.  And you can feel that way until your sentence is completed or the psychological trauma subsides.  Meet Kip Hawley, another American hero who comes clean just a bit too late.

H/T Amy Alkon, The Advice Goddess

The maxim says it all, you can beat the rap but you can’t beat the ride. (Source? I think it was a line from the TV show Baretta, but I can’t find any authoritative source for a line that’s become fundamental to criminal law.)

In a fascinating article at HuffPost, Radley Balko raises some tough questions. Despite the trendy hook relying on the Z-word to capture your interest, it goes on to raise more serious questions about the interrelationship between the moment you find yourself on the wrong side of a cop and the life-altering reality of becoming embroiled in the criminal justice system.

The power prosecutors have to charge people with crimes is often overlooked. While probable cause is the minimum standard police officers need to make an arrest and the minimum standard to convict is beyond a reasonable doubt, the question is where the power to charge should be between those two extremes.

*  *  *

Currently, the accepted standard to bring a charge against anyone is probable cause, the same minimal standard needed to make an arrest. That standard remains the same from the time the charge is brought until the time the judge turns the case over to the jury to reach a verdict.

This reflects a somewhat skewed understanding of how the system is meant to work.  While the standard required of a police officer for an arrest is probable cause, the fact that a cop has arrested someone isn’t (or more accurately, shouldn’t be taken as) a conclusive demonstration that PC exists.  Between the moment of arrest and the initiation of the prosecution, there are three independent steps.

First, the cop decides for himself that he has probable cause to believe a person has committed a crime.

Second, the cop brings his belief to a prosecutor, who then drafts the accusatory instrument. The prosecutor, whose duty is to “do justice” rather than acquiesce to the cop’s determination, then vets the cop’s allegations to decide whether, and to what extent, a crime has been committed.

Third, the prosecutor presents the accusatory instrument to a neutral magistrate at arraignment, The neutral magistrate, as part of the process of arraignment, must determine whether the accusatory instrument is facially sufficient to proceed with the prosecution.

If the system worked as conceived, probable cause would be considered three times before the initiation of a prosecution.  Of course, the system rarely works as conceived.  Initially, there is a problem with the very words, probable cause. Like  most language used to express an idea, we think we know what it means because we say the words often enough, but we’ve merely become desensitized to them.

Despite the somewhat obvious meaning of the word “probable,” meaning more likely than not, probable cause was mucked up by the Supreme Court in Texas v. Brown, as  Jeff Gamso likes to remind me.

Except, of course, that the Supremes have said (Texas v. Brown, plurality opinion that everyone quotes favorably) that probable cause, whatever it actually means, means something less than “probably.”

“As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ Carroll v. United States, 267 U. S. 132, 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U. S. 160, 176 (1949).”

This raises some hugely disturbing problems, in that the standard is so utterly fuzzy, so worthlessly subjective, as to cover all but the most flagrantly baseless accusations.  It need not be “probable,” as the word is normally defines, nor even likely true.  As is typically the case, the language used, “a flexible, common-sense standard,” provides essentially no guidance. 

That the cop has decided he has probable cause to arrest is a given, since the decision not to arrest would be the end of the discussion as there would be no prosecution.  While we don’t hear about non-events, it happens that a police officer decides to exercise his discretionary authority to not pursue an arrest.  How often is impossible to say, but it happens.

When the cop brings the case to the assistant, usually a new attorney who is cutting their teeth at arraignments and is often somewhat awed by the veteran cop who “knows stuff” that the prosecutor doesn’t, it’s left to this rookie to write up the charges.  Often, the charge for which the arrest was made isn’t the same as the charge(s) that appear in the accusatory instrument.  The prosecutor converts the cop’s factual allegations into legal ones, noting what elements of crimes are met and then charging accordingly.

The prosecutor has the authority to toss a case, to decide that the cop’s claims fail to make out a crime, or that the evidence is so bad that the case is going nowhere.  This happens sometimes, and the putative defendant is told, usually without explanation, that he’s free to go. 

During this phase of vetting, the prosecutor’s job isn’t so much to second-guess the cop, but rather to consider the facts in light of the elements of a crime and substantial evidentiary rules.  Of course, if he has reason to believe the cop is lying, that too would be a pretty good reason to toss a case. At this stage, the prosecutor is a theoretical neutral in the process, deciding whether to use the awesome power of his office if it serves the greater interest of justice.

Finally, the accusatory instrument is presented to the court, where a judge is supposed to serve as the ultimate gatekeeper of the courthouse.  The judge is expected to be a true neutral, with no allegiance to either side and no interest in seeing a prosecution proceed or not, other than as the law requires.  Upon reading the accusatory instrument and considering whether the allegations of fact are sufficient to give rise to probable cause to believe that each element of the offense, the judge can stop a prosecution dead in its tracks at that moment. Indeed, the judge is the stop-gap, the fail-safe, for the person who is about the enter one of the worst times of his life. 

The problem with this very nice, very sanitary discussion is that the process doesn’t necessarily happen this way.  Radley attributes this to a need for a higher burden before subjecting a person to the rest of the ride (since courts have refused to do much of anything to eliminate the first 24 hours or so of hell, from arrest to arraignment).  I have little faith in amorphous legal standards to begin with, and am firmly of the view that all the players in the system can ignore a higher standard just as easily as they ignore a lower one.

Not that I have anything against a higher burden before subjecting a person to the nightmare of prosecution, but the fundamental problem with the system as it currently works is that it relies on each of the players faithfully performing the duties of their office.  Until that happens, and happens in every case, the system fails. No standard, no matter how clear or vague, high or low, is going to make a system work when those charged with protecting people from baseless prosecution close their eyes and pass their responsibility down the line.

For a while, the big question was whether it was appropriate for someone to write a comment when they were too frightened to put their name to it.  Ah, the good old days.  Then it was a question of the government gaining access to whatever it is you said, whether for its own account or on behalf of the person whose tush was hurting a bit.  Good times.

Quietly, however, we are doing to ourselves what no person, no government, could do to us.  Because of my lack of computer savvy, it took me a while to realize what was happening.  For those who know less about how this works than I, blogs (including blawgs) exist on a platform, a program created by someone else that makes the stuff we write show up looking cool (or not) on the internet. 

These programs include the part that allows a reader to comment, with whatever requirements the programmer decides ought to be included in there. Some programs allow the blogger to control the requirements, adding or deleting the information and/or verification needed of a commenter, or adding in some outside gizmo in place of whatever the program uses as its default.

As a reader of a few blawgs, I occasionally feel inclined to add a comment or two to what someone else has written.  In the old days, I could use my commenter name of choice, which has been my initials “shg” since pretty much the beginning, plus email and this URL. Sometimes there was a “captcha” requirement to keep bots away and limit spam, a problem far more troubling than most readers know.  You didn’t have to hear me curse as I deleted thousands of spam comments every morning.

Recently, this has started changing, with blogs refusing to allow me to comment unless I signed in through a service, such as a Facebook, Twitter or WordPress account.  The happy idea was that I could then broadcast the fact that I commented (Hey, everybody, look at me and my comment!!! How cool am I!!! Add me to your social network and follow me!!!  K+ me and I’ll K+ you back!!!) across my “social network.” 

This meant a few things, that my “name” as a commenter would be whatever name I used on the social platform on which I signed in, that my comments were aggregated via the social platform and that there was no easy way to be anonymous, if that was my intent.  But at least I realized that something stunk when I had to “sign in” to comment.  Signing in is a dead giveaway.

There was a more nefarious scheme afoot, however.   Kevin O’Keefe exalts its virtues.

Disqus is a commenting service for blogs, news sites, and online communities. Founded in 2007 by Daniel Ha (@danielha) and Jason Yan (@jasonyan), the platform includes various features, such as social integration, social networking, user profiles, spam and moderation tools, analytics, email notifications, and mobile commenting.

We’re using Disqus on all LexBlog blogs which have upgraded to WordPress, mine included. One, because it works pretty well (with some WordPress integration bugs) and two, because of our building an online network of lawyers from around the world (LXBN), which could be done in part through tracking comments and profiles through Disqus.

What he’s saying is that for those of you trying to create a unified marketing presence on the internet, where your every happy word and smiling face is available at a click for anyone to find, Disqus magically makes it happen.  After all, why comment in the blawgosphere, or really anywhere on the internet, if not for the purpose of adding to your carefully crafted internet persona so that other people can find you and love you?

Here’s my profile on Disqus. You’ll reach the profile when you click on my mug next to any comment I’ve left on LexBlog blogs which have been upgraded to WordPress as well on other blogs and news sites around the net.

So you can not only see what Kevin had to say on his own blog (RLHB), but all the other blogs that use Disqus as well.  One stop shopping for every comment you’ve written, regardless of whether you used your real name to comment or called yourself something else, like, say, Publius, Anon or Guest.

Not only are you unable to hide your identity on a comment, but you have provided carte blanche to every other blog at which you’ve commented and every word you’ve ever typed into the square comment block.  And you’ve given it away to everyone on the interwebz.

For some, with varied interests that bring them to different websites or blogs that have nothing to do with one another, and whose participants really have no reason to know about your various distinct interests, you now have no secrets.  Say you comment on legal blogs and happen to be a fan of My Little Pony (a/k/a a brony).  Perhaps you would prefer other lawyers and judges not being aware of your brony side, or any other peccadilloes that don’t involve them.  Tough.

For others, the idea that comments taken out of context (since clicking on our smiling face shows only our comments, not the post to which they’re directed or the other comments to provide context) could produce some unpleasant assumptions about us by those who may disagree with our comments or hate our guts.  Worse still, should we become the object of a nutjob, they could be copied and plastered across the internet with images of naked people. Never underestimate the damage a true nutjob can cause.

Whether you like it or not, you are now social, part of the grand and happy social network that promoters of the internet for purpose of marketing and selling believe will launch a billion businesses. In their eyes, this should make you happy, and happy people whose existence in the social sphere makes them want everyone to know and appreciate their internet existence and their every happy utterance, will love the new reality that anyone can find out anything they want about you because you have chosen to let a program like Disqus put it all in one place and make it all accessible to the world.

No government could compel you to give it up so readily, and yet we do so willingly because it’s the only way to get our little sliver of brilliance into the comment section of a blog.  If I don’t comment at your blog anymore, it may not be because your post wasn’t thoughtful and interesting. I just don’t plan to leave tracks everywhere I go.

For those who use words like “justice” and “righteousness” without contemplating their relativity, anticipate the non-stop flogging of the prosecution of George Zimmerman as if it’s this generation’s O.J.  As  Charles Blow (who I just learned is a fencing parent) writes:

Americans saw the anguish of the boy’s father and the tears of his mother. America saw a child who was its own. America saw its concept of basic fairness sinking in to the marsh of miscarried justice.

So America rose up. Thousands marched in the streets. Millions signed petitions online. Hearts poured out for justice to rain down.

This is a moment when America should be proud. The wheels of justice are finally turning. The State of Florida has taken up the cause of the dead boy. His life is no more, but his legacy will live forever.

The second degree murder charge of George Zimmerman has received widespread approval. I am in Fort Worth to speak to the Fort Worth Lecture Foundation this afternoon. However, I am receiving a lot of calls on the basis for the charge. I must confess that I am not optimistic on the chances of a conviction unless the special prosecutor has undisclosed evidence to meet the high standard under the state law.  As I discussed on BBC last night, there are substantial challenges to make such a charge stick in this case.

I’m in a rush, but I can’t avoid commenting on the affidavit of probable cause submitted in the matter of George Zimmerman’s shooting of Trayvon Martin.

It’s a piece of crap…

This is not the worst affidavit I’ve ever seen — but it’s damn close, and the decision to proceed based on it in such a high-profile case is stunning.

On Thursday, Zimmerman appeared in a Florida courtroom, and Corey released a simple but chilling affidavit for probable cause that painted a disturbing portrait of Zimmerman as a man who “profiled,” “followed” and “confronted” the boy.

At a time when some prosecutors not only fight to the death for their right to conceal exculpatory evidence, but deny it for as long as humanly possible despite the fact that a man sits in prison who, but for impropriety, shouldn’t be there, Oklahoma County District Attorney David Prater demonstrates the meaning of honor and integrity.

From his press release :

On March 15, 2012, an Oklahoma County jury convicted Billy Thompson of 1st Degree Murder at the conclusion of a trial held before the Honorable Donald Deason. The next day, I discovered that a potentially exculpatory statement made to Assistant District Attorneys Pam Kimbrough and Stephanie Miller by a witness to the original crime was not disclosed to defense counsel.

Within minutes of learning of the nondisclosure, I contacted Chief Public Defender, Robert Ravitz to notify him of the allegations. To ensure the integrity of our investigation into the alleged ethical violations of the ADAs, I invited Mr. Ravitz to jointly investigate the allegations. He accepted.

This may be the most remarkable initiative to come from the office of a prosecutor I’ve ever seen. Not only does Prater, without anyone outside his office having the slightest clue that Brady was withheld, come forward “within minutes,” but he names the individual prosecutors involved and includes the Chief Public Defender to participate in the investigation. 

In his press release, Prater includes the sort of language typically used to describe the distinct nature of the prosecutorial function:

Prosecutors must be different than any other type of attorney. We are not simply advocates, but are charged with a ministerial duty within the criminal justice system. We are duty-bound to seek justice, period. That duty includes protecting the constitutional and substantive rights of criminal suspects and criminal defendants. We must never abrogate that duty to the justice system we are privileged to serve.

The difference here, and it’s a difference with a huge distinction, is that this isn’t used in the typical prophylactic manner, making the right noises before heading off in the other direction as quickly as possible. Rather, David Prater means what he says.

To protect the integrity of this office, its dedicated employees and most importantly, our justice system, I have taken swift and definitive action. Pam Kimbrough and Stephanie Miller were terminated last Thursday. Though I am heart-broken over their loss to this office, my decision to terminate them was an easy decision to make. The gravity of their alleged ethical violation is so great that only one punishment equals their transgression. Additionally, I am forwarding our investigation to the Oklahoma Bar Association and the Oklahoma Attorney General’s office to assign a special prosecutor to evaluate the investigation for possible criminal violations.

Perhaps it would have been better had there been a culture in place that would have caused the assistants proactively to disclose Brady, despite the potential loss at trial.  But compare this to the reaction in New Orleans, where the argument coming from Harry Connick’s office, and affirmed by the Supreme Court in Connick v. Thompson, was that they were sufficiently brilliant to get convictions but so utterly ignorant as to have no clue that they were obliged under Brady to disclose exculpatory information.

Pam Kimbrough was no rookie, no throwaway who was easily jettisoned in order to create the appearance of integrity.  Via NewsOK :

Kimbrough was a veteran prosecutor who was team leader of the county’s domestic violence division. She was hired by Prater when he was elected to office.

There’s little doubt that it was indeed painful for Prater to fire her, but he did, and he did without hesitation.  It’s easy to say that unethical behavior won’t be tolerated. It’s a lot harder to do what needs to be done to make it real.

As reactions to impropriety go, District Attorney David Prater’s reflects a dedication to integrity that has never, to my knowledge, been seen before.  I will not diminish his actions by further commentary, but rather thank him for taking immediate and unambiguous steps to vindicate the violation of the defendant’s constitutional rights.

This is what it means to be an honest prosecutor.

H/T William Spielder

On the one hand, New York City Criminal Court Judge Matthew Sciarinno did what all judges do, and what all lawyers do as well.  He took the fuzzy rhetoric of precedent and held that the charges against Ronnie Nunez, arrested in Zuccotti Park as part of the Occupy Wall Street movement, were facially sufficient. 

The big constitutional issues, for example, were disposed of easily:

The defendant claims that he and others were exercising their first amendment right by setting up the tents and tarps. This argument is without merit. “The First Amendment does not offer absolute protection to all speech under all circumstances and in all places.” (Clark v. Community for Creative Non-Violence, 468 US 288, 293 [1984]). Even in public forums, reasonable restrictions on the time, place or manner of protected speech may be imposed, provided that the restrictions are content neutral, are narrowly tailored to serve a significant government interest, and leave open sufficient alternative channels for communication of that information. (Id. at 294; Thomas v.Chicago Park Dist. , 534 US 316, 323 n.3 [2002]). In Waller v. City of New York , the court found that Brookfield Properties has “the right to adopt reasonable rules that permit it to maintain a clean, safe, publicly accessible space consonant with the responsibility it assumed to provide public access according to law.” (Supra at 375). The court held that the petitioners had failed to demonstrate that the rules of conduct were not reasonable time, place and manner restrictions permitted under the First Amendment. On the contrary, the court reasoned that the rules appeared to be “reasonable to permit the owner to maintain its space in a hygienic, safe and lawful condition,” to forestall liability for torts or violations of law, and to permit public access to the park by those who live and work in the area. Id. This court agrees.

Persuasive? Eh. What it is not is clearly wrong (aside from his failure to use paragraph breaks), so that Judge Sciarinno is open to a smack down. It’s a safe, vague decision, hitting all the key words that keep it in the vast middle ground that prevent exposure to harsh criticism or reversal.

But Matthew Sciarinno, having ruled that the case against Nunez can proceed, added a tidbit on the back end that demands further attention.  He may have played it safe in the body of the decision, but the “rebel” within wouldn’t let him stop there.

While, this court recognizes that the intentions of numerous members of the OWS Movement are laudable, that does not arguably excuse one’s obligations to work within the lawful process allowed in our democratic society. The “99%” is clearly a majority and can make its voices heard in a legal, organized manner if that is its wish. No matter the alleged influence of the “1%” on the political process, at the end of the day it is the majority that determines those that have the privilege of governing this city, state and nation.

A very curious admonishment, utterly unnecessary to reach the decision that the show must go on, indeed.  A slight tip of the hat to the “intentions” of the movement, though one that he inherently qualifies by limiting it to “numerous members of the OWS Movement” rather than all involved or the movement itself.  A rather typical judge-like point about the “obligation to work within the lawful process,” which is always amusing given that our nation’s existence derived from revolution.

But the strongest piece of the lecture, and the one best grounded in reason, is that “99% is clearly a majority and cam make it’s voices heard . . . if that is its wish.”  It’s a damn good point.

While the disaffected usually assume the mantle of speaking for the downtrodden masses, the masses don’t always agree.  The disaffected explain this cognitive dissonance as ignorance or fear, and that if only the masses understood how they were speaking for them, doing what’s best for them, they would lock arms as well.  Yet it doesn’t seem to either work out that way, or that easily.

We’ve had some efforts to create grassroots movements, ranging from the Tea Party to OWS.  They each gain followers and momentum, but still they struggle to have a coherent message beyond the same platitudes that are chiseled into the lintels over government doorways.  “Justice is Good” type maxims.

Whether the problem is that a pluralistic society is no longer capable of reaching a consensus, given that it’s comprised of too many narrow interest groups whose belief, though occasionally overlapping, never seem to be coterminous, or that we just have different priorities, and are unwilling to give up what matters to us in order to form a more perfect union, isn’t clear.

What is clear is that OWS, like the Tea Party, had a chance to let the nation know what it stood for and to rally support to buck the existing power structure.  Both made a splash. Neither won the day. And as we run headlong into our next presidential election season, little has changed.

Even though I found the message of OWS lacking (which always compels someone to “explain” it to me, while pointing out that I’m thick as a brick for neither getting it nor embracing it with every ounce of my being), I respect, no, admire, the political fervor of its proponents.  It’s good that people care. It’s great that people are willing to sacrifice their comfort and convenience to take a stand.

Part of what the “members” of the movement sacrifice is the right to be free of the constraints of the legal system and those who enforce it.  In the ’60s, protestors were arrested. Some were shot. Some were killed. They gave their life for a cause in which they believed, no matter how silly it all seems more than 40 years later.

If the OWS movement represented the 99%, they wouldn’t have to take to sleeping bags in Zuccotti Park. They would rule this country.  That they don’t reflects the problem with having a great slogan without the backing to make it happen.  And so some will be prosecuted for what they believe in. That’s how protest works, fighting the powers that control the ground and suffering for your beliefs, even when the 99% doesn’t agree.

H/T Eugene Volokh

When  Radley Balko mentioned the video of Collinsville  Police Officer Michael Reichert conducting a manipulative baseless search of nerd Terrance Huff, it fit into a sort of funny, sadly mundane sort of paradigm. Another cop stopping a guy for nothing, playing the game, coming up empty other than to find his name smeared on the internet for reducing constitutional rights to a joke doing his job.

But the Collinsville Chief of Police, Scott Williams, was feeling a bit butthurt from the Radley’s HuffPo commentary, and did the one thing no top cop ought to do. He responded.

Seemingly out of the blue, two lawyers held a press conference in Sanford, Florida.  Their names are Craig Sonner and Hal Uhrig, but that’s not important. Anyone who didn’t care who they were a month ago won’t care who they are a month from now. 

By fortuitous connection, people with microphones and cameras came when they called yesterday. Soon, they will go back to living whatever lives they led before, except they will have a story to tell of their brief, shining moment when somebody cared what they said.

From the New York Times :

That narrative took a bizarre turn on Tuesday when two lawyers for Mr. Zimmerman held a news conference in Sanford, Fla., to say they had withdrawn from the case and had not heard from him since the weekend. The lawyers, Craig Sonner and Hal Uhrig, said that against their advice, their client had reached out to Ms. Corey for a meeting. The special prosecutor had declined to speak with Mr. Zimmerman without his lawyers present. They said Mr. Zimmerman had also contacted the Fox News host Sean Hannity, but would not reveal the substance of the call.

What gave rise to this compelling need to put on a clean shirt and smile for the camera isn’t clear. Announcing that they no longer represent Zimmerman is a non-event. They could have similarly announced they were not made attorney general.  The suggestion that it was to stop all the reporters from seeking comment could have been better accomplished by telling the inquiring reporters that they were no longer Zimmerman’s lawyers.

But then, apparently they hadn’t told Zimmerman, who had apparently gone off the reservation and decided to take matters into his own hands. Again.

Mr. Zimmerman has also started a Web site, therealgeorgezimmerman.com, asking for funds to deal with the “life altering event” that, he wrote, forced him “to leave my home, my school, my employer, my family and ultimately, my entire life.” His lawyers said they had been unaware of Mr. Zimmerman’s plans to create the site.

It’s not that these moves have ended any possibility of representation, as Craig Sonner announced that

he was ready to resume his representation if Mr. Zimmerman explained his actions since the weekend and said, “I was wrong.”

Or maybe Zimmerman isn’t interested in Sonner’s representation? Or maybe Zimmerman doesn’t think he was wrong, though the “wrong” referred to here appears to be not appreciating the importance of his lawyer’s advice and presence.

When a situation, such as the one in which Zimmerman and Sonner, and to a lesser extent Uhrig who was apparently brought in because someone had to know something about the law, goes viral, it’s takes on a life of its own, a life with which none of the participants are prepared to deal.  The day before, no reporter in the world would have returned Sonner’s or Zimmerman’s telephone call. The next day, every reporter drools at the prospect of a few words, no matter how pointless or inappropriate. Hot news, baby.

It screws with people’s heads.  Sonner didn’t hold a press conference because he had an announcement that he, as a lawyer who has kinda withdrawn unless and until his client comes back to his fold, in his professional capacity believed needed to be made in the interest of his client. There was nothing about the press conference that was in his client’s, or former client’s as the case may be, interest.

What business does a lawyer have in uttering a word unless it’s in his client’s, or former client’s, interest? The lawyer isn’t a celebrity. He can’t sing. He can’t dance. He never made a sex tape that catapulted him onto a reality TV show. He’s just a lawyer.  The closest he comes to mattering to the media is that the words he utters can be printed or broadcast as if they came from the client.

The client is a “person of interest,” not in the cop sense but the salacious media sense.  Reporters would give their left nut to get their mitts on him, if only for the 15 minutes he matters before they turn their backs and run toward the next person of interest.  The client doesn’t have to sing or dance. He killed someone and that’s good enough.

There is no class in law school that teaches lawyers how to behave when the klieg lights go on.  There isn’t much discussion about how to answer questions, where the answers can be devastating to a client’s interest.  In an age where every school boy’s dream is to be a star, there is no preparation for the moment of transitory celebrity.  And when it happens, many find out very quickly that it’s not as cool as they thought, and that it’s fraught with dangers that can turn them from hero of the moment to the world’s biggest jerk.

The good news is that tomorrow, the lawyers will go back to living their lives of ordinary desperation, having nothing more than a story to tell of the day when they could call a press conference about nothing and reporters came running.  Some young lawyers will listen and wistfully dream of the day when they will become famous for a moment.  Maybe one or two will realize that these lawyers took a trip through the looking glass.

Many will be harsh in criticizing what Sonner and Uhrig for calling their press conference to announce that they no longer matter.  Don’t be too harsh.  When so many bright lights are pointing at you, it’s hard to know how to handle it.  The best answer, to remember that you’re just a lawyer, that this isn’t about you or your moment to be a shining star, and that your responsibility as a lawyer doesn’t change at all from when you represent the client who interests no reporter, is elusive.

Getting your face on TV or your name in the newspaper (and in the New York Times story, Doug Berman is quoted about the case, a curiosity since his focus is sentencing which has nothing to do with the scenario at this stage but didn’t stop Doug from enjoying an interview or serving as their credible academic of the moment) is supposed to be the primary goal of every lawyer who wants to become important.  How did that work out for Craig Sonner?  Finding oneself on the other side of the looking glass isn’t nearly as cool as they say. 

David Packman writes that his work precludes him from continuing his efforts at documenting police misconduct and abuse at Injustice Everywhere.  His project, The National Police Misconduct Statistics and Reporting Project, helped all of us track what was happening, filling the void left behind by a government that only tracked the misdeeds of others.

My perspective on David’s announcement will likely be a bit different from many others. I remember David when no one knew his real name. He was Packratt back then, nursing the bruises he received at the hands of police and lawyers, filled with despair and rage.  With some support, he eventually put his anger to better use than howling at the moon, and created the NPMSRP.  It was useful for us. It was cathartic for him.

The project was big and time-consuming. David was just a guy. He had a family who wanted to eat every day, and he needed to work to feed them. It wasn’t always easy. Some of you may remember that we’ve been through some tough times recently, and David wasn’t immune. 

The first time  David quit was back in 2009.  He somehow pulled it together and, at the urging of many readers who grew to rely on his reporting, kept the project alive.  We’ve tried to get funding for the project itself (and by we, I mean David and I, as I sponsored him as a Soros Fellow).  Unfortunately, the money didn’t come.

I hit on some of the wild and crazy think tank folks, who were floating in bucks in furtherance of agendas that murdered millions of words, and it seemed that David’s project would fit right in.

There are a few people who write blogs who earn a living that way.  Balko is one.  I’m not, but then I’m a lawyer and throw this together in my spare time.  Packratt wasn’t getting paid for what he did online, and he wasn’t a lawyer.  He was just a guy who wrote about police misconduct for the benefit of the rest of us.

Maybe Radley Balko, who I know follows Packratt’s twitter feed, will read about this and tell his people at Reason Magazine that this guy should be on the payroll.  I won’t press the issue as I have no idea whether the idea has any feasibility at all, but I can’t help but wonder whether Balko’s work will be the worse for Packratt’s absence.  I suspect it will.  I don’t suspect that Reason will put Packratt on the payroll.

David Drumm, guest-posting at Turley’s Blog, made me think about this Janis Ian song (which she wrote at age 13)  today, which made me wonder how many of the younger readers here have ever heard it.



The song came out in 1967.