Lee Pacchia of  Bloomberg Law interviews New York Times reporter David Segal, the guy whose feature articles caused more lawprofs to put fingers to keyboard than any other, not to mention spittle to screen.

There are things he says (and he’s written) that strike me as accurate, and things that strike me as just plain wrong, as interpreted from the outside without much of a grasp of the inner workings. 

One argument Segal makes, where he applies basic economics of supply and demand to the availability of reasonably priced legal services, seems particularly misguided, ignoring the costs (whether too high or not), both out of pocket as well as opportunity, that somehow have to be repaid.  As much as lawyers might want to put their services to use for the poor and downtrodden, they still have mouths to feed and debts to pay.
 
On the other hand, his point about “gold-standard” legal services being unnecessary for some of the services lawyers now provide is similar to the arguments I’ve made here.

The aspect of Segal’s argument that seems most significant is that the ABA, responsible for accrediting law schools, accepts no responsibility for any of this.  And, since Segal apparently doesn’t realize this, the ABA doesn’t speak for all lawyers.  Just saying.

Interesting stuff.

H/T Volokh Conspiracy

The crime charged is bank robbery, not ordinarily considered an impulse crime of the sort that can be easily understood as an aberrational act resulting from either momentary psycho-emotional overload or an altered state of reality.  People plan bank robberies. After thinking, they execute the plan.  It’s a very thoughtful crime.

After Feliz Vega, Jr., was arrested for bank robbery in Georgia, however, his lawyer announced a curious defense.  Vega was taking Paxil, and it was the drug that prevented Vega from distinguishing right from wrong.  Paxil, an SSRI antidepressant, is a very strong drug with a very long list of significant side effects, but it’s been prescribed since 1993 to millions of people, without any suggestion that it’s caused a rash of bank robberies.

Naturally, the defense was immediately ridiculed for laying blame on Paxil.

But Assistant District Attorney Hank Syms waved away any claims of “involuntary intoxication,” telling Superior Court Sheryl Jolly he would object to any witness testimony that did not directly reflect on Vega’s state of mind when he entered the Bank of America at 1740 Gordon Highway on July 30, 2010.

Syms said that about a third of clients that make guilty pleas in court say they are on some form of medication. But Syms said this is the first time he’s heard this medication defense because most attorneys know better than to try it.

“What we have with this charade about ‘Paxil made him do it’ is the opposite of taking responsibility,” Syms said.

The defense plans to call an expert at trial to show that the defendant lacked the capacity to form criminal intent.  Obviously, ADA Hank Syms thinks defense counsel Peter Johnson is a damn fool.

Without regard to the merit of the defense’s position that Paxil, a mind-altering drug, altered the defendant’s mind, or the legal significance of his taking Paxil (presumably with a prescription) on his mens rea, what’s striking about the prosecution’s reaction, not to mention the reaction of commenters to the story, is that this defense is just, well, stupid.

The defense’s theory is immediately reminiscent of the dreaded “twinkie defense,” offered on behalf of Dan White in the killing of San Francisco city supervisor Harvey Milk.  While it’s been largely misunderstood, as the defense was not that twinkies caused White to commit the crime, but rather was evidence of his changed behavior reflecting his depression, it’s managed to sour, in public perception, the idea that a person’s mental state can be altered by an external cause to impair the ability to distinguish right and wrong.  Syms’ characterization reflects how most people think.

The problem is that the knee-jerk dismissal of the defense is based on some ignorant “common sense” notion, which Syms is playing to the hilt.  To the extent we seek only those individuals who possess the mental state needed for guilt to be convicted, playing to ignorance undermines the validity of the system.  It does, however, help to get a conviction.

Maybe the Paxil defense is total nonsense, a facile attempt at excusing a deliberate act for which the defendant should be properly convicted.  Maybe Paxil altered the defendant’s state of consciousness such that he was disinhibited, incapable of the thought processes that would lead a person to recognize the wrongfulness of robbing a bank.  Not being anywhere near competent to draw a conclusion, I wouldn’t venture a guess.  But I similarly wouldn’t dismiss it out of hand.

The problem is that this isn’t the sort of thing that a group of nice folks, sitting in a bar, around a coffee table, or in a jury room, can figure out on their own.  They aren’t near competent to assess the impact of Paxil on this defendant either.  Yet that’s the basis of the prosecution’s dismissal of the defense, as well as the general attitude of those commenting on the story.

For example:

Since first approved in 1993, over 70 million prescriptions for Paxil have been filled.
Do we now need to worry that all 70 million users will drink booze, attempt to rob banks, elude police officers and crash into neighborhood fences? Kinda grasping at straws, aren’t you Peter Johnson??

And:

To paraphrase Geraldine…”The devil made him do it.”
And if you know who Geraldine is, you’re showing your age

Or:

Using that lame defense will probably get Mr. Johnson’s client the max based on his wasting the Judge’s time.

And of course:

And let the new excuses begin for committing crimes. Even three sheets in the wind, an honest person doesn’t commit armed robbery or any other crime while intoxicated with some exceptions made for dui’s/conduct issues. I certainly hope this man is convicted of his crime. Poor, poor, Paxil victims.

On the flip side, some commenters noted that there have been numerous cases in which drugs taken by the defendant was successful in showing diminished capacity, including the cases of  Christopher DeAngelo and former all-star pitcher Jeff Reardon.

It’s not an easy defense to prove, or an easy defense for a jury to accept.  There is a strong tendency to reject that which doesn’t fall within the common sphere of experience, much like the refusal of jurors to accept the notion that anyone would falsely confess.  But this isn’t about common experience, and the limits of a juror’s don’t define the parameters of other people’s lives. 

This is particularly true when the issue revolves around something like a serious drug such as Paxil, where those of lacking in the expertise necessary to appreciate what it can do to a person’s mental state have no business making off-the-cuff, simplistic assessments. 

More importantly, the prosecution’s effort to feed into this ignorance, to use prejudice under the guise of some “common sense” type argument to ridicule a defense that could very well be true, is outrageous.  Not that Hank Syms suggests he’s got the competence to assess the medical validity of the defense, but that in his ignorance, he’s amply qualified to encourage others to be as ignorant as him.  Fostering prejudice and ignorance may help to win convictions, but doesn’t do much to foster confidence in the legal system.

The defendant has a right to present a defense.  Hopefully the judge will be sufficiently enlightened, or at least immune from falling into the hole of ignorance that Syms is busy digging, and allow him to do so. Even if it flies in the face of ol’ Hank’s ridicule. 

When a defendant completes his sentence, he’s said to have paid his debt to society.  Well, that was what we used to say, anyway, before the days of registries and the perpetual underclass we’ve created to make sure that no one who has ever done anything wrong will get a chance.  For the children, you understand.

In the blawgosphere, however, criminal defense lawyers are occasionally given the opportunity to put their principles to the test.  Society at large may be unforgiving, but we argue otherwise.  And we have an opportunity to put our beliefs into action.

An email came in the other day requesting that I remove an old post about a case that named names.  It wasn’t a demand.  There was no claim of inaccuracy.  It was a simple request, couched in terms seeking understanding.  You see, the case against the person named in the post has long since been completed, and he’s moved on with his life.  Yet, his name on the interwebz brought up this unpleasant episode. He wanted to put it behind him, to not spend eternity perpetually haunted by it.

This was hardly the first time somebody wanted me to take down a post.  I’ve gotten many demands, often couched in threatening terms, by people claiming that what appeared here did terrible things to their reputation.  The most well-known of these is Rakofsky v. Internet.  A more playful demand came from faux internet cop, Jim Donahue, who was subsequently pinched for playing a cop in Broward County.  And then there was Mimi Coffey’s “do it for my children” demand. My response to all was “bite me.”  I don’t take kindly to threats.

The purpose of writing, aside from my internal interests, is to be informative while making a point.  There comes a time, however, when my point (not to mention my internal interests) are less important than the damage of being forever associated with the worst experience of one’s life on the internet.  The internet is forever, unless some intervening force makes it go away.  While a judge may impose a sentence of years, after which a defendant can emerge from the darkness of prison and breathe free air, the internet never forgets.

It took me mere seconds after reading the email to make a decision.  My post about the fellow was a good one, accurate and pointed.  It was extremely relevant to what we do, discussing the risks we take in the zealous performance of our duty, and the inherent conflicts between our role as attorney and the limits of the law on how far we could go in the protection of our clients.  It was a good post.

It was also a post that would certainly hurt the person named by reminding everyone who read it what had happened, and impair his ability to move forward in his life.  Who was I to sentence this person to perpetual infamy on the internet?  Who was I to deny him the ability to move on after he paid his dues?

The post was immediately removed.

While I had no hesitation in doing something that I believed was right, there is a nagging aspect to removing a post, that I am engaged in revisionist history.  What happened, happened.  What was there one day was disappeared with the press of a button, and no one who would come to see it will ever find it again.  If someone read it and, for whatever reason, wanted to read it again, there will be no explanation for why it no longer exists.

Journalists don’t take down their articles after a sufficient length of time elapses, so that the people named can go back to their lives without the story hanging over their heads.  We can go into archives from a century ago and still read about what some guy long dead did to some other guy similarly long dead.  While it’s hard to harm a dead person, what of their legacy?  Is it limited to the bad thing they did that got their name into the newspaper?  There likely won’t be much written about how they were nice to dogs and children.

Before the internet, one had to do some serious legwork to find old stories about people. Memories fade and yesterday’s news was replaced by today’s.  With search engines, everything is today’s news for most of us, lacking sufficient prominence to be replaced by media fascination with our every movement and utterance.  We tend to be characterized by our worst moment rather than our best, or even our most mundane.  It’s the unusual that gets reported, and the unusual that will live on Google in infamy.

Having written a great many posts, over a lengthy period of time, this issue has come to the forefront, testing my resolve that people who have paid their dues to society deserve to put their worst moments behind them and move forward.  Maybe I’m wrong to make posts that I once thought worthy of writing disappear because of this belief, but I made a decision and pressed the button.

As the blawgosphere, and the internet, matures, new questions arise about how we should handle the impact of what we do on others.  I’ve made my choice, at least this time.

According to the Feds, the East Haven police force is a “cancerous cadre,” proving yet again the limits of alliteration as a weapon against police misconduct.  The indictment filed, however, may prove more effective.  From the New York Times :

Following on the heels of a scathing Justice Department report in December that found the East Haven police had engaged in widespread “biased policing, unconstitutional searches and seizures, and the use of excessive force,” the indictment portrayed a harrowing picture of arbitrary justice for Hispanic residents.

“There is no place for excessive force in a police station or on the streets,” David B. Fein, the United States attorney for Connecticut, said in a news conference on Tuesday. “There is no place for false statements in police reports.”

“No person is above the law, and nobody — even a person arrested for a crime — is beneath its protection,” he added, saying there could be more arrests.

Strong words.  If the allegations are true, well-deserved words.  The government says that the graveyard shift of East Haven cops, called “Miller’s Boys” because the feds have long since learned that giving a name to any group of defendants makes it easier for the media to describe their wrongs and for the jury to think of them in gang-like terms, terrorized Latino immigrants. 

Can you imagine that this happened in Connecticut, forcing the feds to pull out every platitude in the book?

I apologize if I appear flip about what these cops are accused of doing to Latinos in East Haven, Connecticut. It’s not funny. Not in the least.  And if they’ve done what they’re accused of doing, and given the dynamics of federal indictments, it’s likely they did it, my hope is that they get nailed, and that they clean up their mess with extreme prejudice.

But the rhetoric of the United States Attorney made me think of sunnier climes. Like Maricopa County, Arizona, where a guy called Crazy Joe Arpaio remains in complete, unfettered power.  The  Arizona Republic has an editorial today entitled “Arpaio must end vengeful ‘sweeps’.”

The correspondence duel between Maricopa County Sheriff Joe Arpaio and U.S. Assistant Attorney General Thomas E. Perez of the Civil Rights Division is becoming a classic of the genre.

The latest entry, sent by Perez to Arpaio’s attorney on Jan. 17, appears to be the first communication that suggests a resolution regarding Arpaio’s legally dubious “sweeps” for illegal immigrants may be under way.

The original complaint, filed by Perez on Dec. 15, can be viewed as a 22-page artillery barrage of federal fury.

In East Haven, the feds indict police.  In Maricopa County, they send Crazy Joe a “22-page artillery barrage of federal fury.”  Ew, scary.  But Crazy Joe still sits in his office, directing his badged minions to do his bidding, and thinking of ways to tweak his enemies.

The sheriff’s Jan. 4 response was a tour de force of classic Arpaio defiance, chock-full of accusations of “political gamesmanship” and assurances the sheriff “will not cower at the threat of litigation.” Of course not. With the public paying the bills as always, why should he?

Why should he indeed? For all the great might of the United States government, sufficient to make the world cower, it can’t manage to do squat about one old man in Arizona.  The impotence is deafening.

Curiously, the most serious racial-profiling evidence against the sheriff isn’t anything produced by the Justice Department. Indeed, the feds have yet to release evidence backing up their sensational claims of Latino drivers being stopped “four to nine times” more often than others.

Don’t they know how to call a press conference in Arizona? Did they forget the way to the grand jury room?

For years, the nation has known about Crazy Joe Arpaio’s refusal to adhere to the rules constraining what wacky sheriffs are allowed to do, particularly to Latinos and anyone else whose skin is a shade darker than others, or name ends in a vowel (like his, ironically), or whose English isn’t up to snuff.  He does it with tanks and pink underwear. He crushes judges who question him and politicians who even think of being disagreeable. 

And yet, he still sits in his chair without the slightest concern of a knock on the door in the early morning hours.

Arpaio was the focus of a blawgosphere for a while, after his deputy, Adam Stoddard, decided it was his right to rifle through a defense lawyer’s file while she was speaking to the judge, and it was caught on video.  it was seen as a showdown, I went so far as to call Arpaio the lord of the flies, after the locals explained that we didn’t get it, the extent of control Arpaio wielded in Maricopa and the inability of anybody to stop him.  They had a point.

That was November, 2009 when all the Crazy Joe Arpaio hoopla happened.  As predicted, the blawgosphere lost interest and moved on to new horribles.  Nobody wants to write, or read, about Crazy Joe all the time. For years.  It’s the old SNL joke, that Generalissimo Francisco Franco is still dead.  Yet more than two years later, Crazy Joe is still in power and the federal government writes him nasty letters telling him he better change or else.  Or else what? They’ll send him another nasty letter?

It’s good and right that the federal government has stepped in and indicted cops gone wrong in East Haven, where their treatment of Latinos violates our Constitution, their civil rights, and every precept of what we demand of police officers. 

But that’s Connecticut, not Arizona.  We’re one nation, or so the pledge says.  We’re a nation of laws, not men, or so that platitude goes.  The feds have this huge hammer, big enough that it can crush pretty much anyone who tells them to go screw themselves.

So why is the federal government completely incapable, disgracefully impotent, to stop Crazy Joe? 

Despite the  heated  arguments surrounding the case of  Sebastien  Boucher and the government’s efforts to obtain his password to collect evidence of his possession of kiddie porn, we suffered Boucher-interruptus when Vermont Magistrate Judge Jerome J. Niedermeier’s decision never made it up to the Circuit. 

The good news is we have bad news to report.  Colorado District Court Judge Robert Blackburn has issued a decision in United States v. Fricosu, raising many of the same issues presented by Boucher.  The defendant’s home was searched pursuant to a warrant, and a computer seized which held encrypted files.  She decided to chat about it with her husband, who was in jail on a state charge, on a recorded line, giving the government a pretty clear conversation so show that this was her computer, that she knew it was encrypted and that it contained stuff she would prefer the government not know.

So, the government subpoenaed the defendant to produce an unencrypted version of the content of the computer. For good measure, they offered her immunity for doing so.

Fricosu moved to quash, arguing that the subpoena violated her Fifth Amendment privilege against self-incrimination, demanding a testimonial act of production by compelling her to acknowledge her control over the computer and its contents.  Mind you, the contents themselves are not protected, as evidence of a crime already searchable by virtue of the warrant for her home, but the contents, already in the prosecution’s hands, can’t be “interpreted” without the encryption key.  This is a geeky point, and of little legal significance, but I would hate for the geeks out there to castigate me for failure to acknowledge this detail.

Judge Blackburn found, under the preponderance of evidence standard, that there was no privilege left to protect.

There is little question here but that the government knows of the existence and location of the computer’s files. The fact that it does not know the specific content of any specific documents is not a barrier to production. (Citations omitted.)

Additionally, I find and conclude that the government has met its burden to show by a preponderance of the evidence that the Toshiba Satellite M305 laptop computer belongs to Ms. Fricosu, or, in the alternative, that she was its sole or primary user, who, in any event, can access the encrypted contents of that laptop computer. The uncontroverted evidence demonstrates that Ms. Fricosu acknowledged to Whatcott during their recorded phone conversation that she owned or had such a laptop computer, the contents of which were only accessible by entry of a password.

Moreover, the government has offered Ms. Fricosu immunity, precluding it from using her act of producing the unencrypted contents of the laptop computer against her.

The court held that it was a “foregone conclusion” that the computer was hers and she had the ability to access its contents, unencrypted, thereby dissipating her 5th Amendment privilege against compelling her to engage in the testimonial act of production.

As much as I hate the outcome, under the general principle that the prosecution should not be able to make the defendant do anything to contribute to her own conviction, the decision comports with existing precedent.  To prove my pain in this regard, I note that Orin Kerr at Volokh reached the same conclusion, and you know how much I hate to agree with Orin.

Though the decision is sound under existing law, it gnaws at me for two reasons.  First, the general sense that the prosecution should do its dirty work on its own, and no person should be compelled to contribute to their own demise.  It’s just unAmerican.

The second reason is that computers (and for that matter, iPads and iPhones and everything shiny object beginning with “i”) are analogized to common physical evidence, as has historically been the fodder of prosecutions.  They aren’t the same.  The contents of a computer may well hold the digitalized version of evidence, but it also holds essentially our entire thought process, a revelation into the workings of our mind as manifested in binary code.  The prosecution may be entitled to the evidence, but they aren’t entitled to our every thought.

It has long struck me that, if we’re constrained to understand technology by analogy, a computer is more like a diary than anything else, a sanctum for the ideas that reveal our lives.  No court would order a person to undergo a brain scan so that the prosecution could access their thoughts, assuming it could be done (and, if the growth of technology continues, may well be possible some day).  Yet they can achieve much of the same access via our computers. 

Much of the discussion to Orin’s post on Fricosu relates to whether the defendant can simply say “I forgot” when ordered to unencrypt the files. There are plenty of variations on this theme, discussion of the sanction imposable for her refusal to comply with the court’s order, and the aforementioned geeky argument that the government already has the evidence, just not the key needed to make it usable.  While these side issues may interest some, they fail to address the core problem, that most of us feel that our computers should be sacred, beyond the reach of the government.

A continuing theme here is that the law has failed miserably to address the fundamental changes that  technology has on society, behavior and privacy, and that reliance on precedent and analogy is leading us down a path where privacy will be little more than an arcane notion and a fond memory.  That Judge Blackburn’s decision is sound based on existing law does little to address the question of whether existing law is sufficiently sound to maintain our rights in light of changes in technology.

Unless the law comes to grips with this, we’re in trouble, and it’s rather difficult to imagine that there are many judges (Sotomayor possibly excepted) who has a sufficient grasp of technology or the will to break free of ancient precedent upon the realization that it just doesn’t apply well anymore.  In the meantime, Fricosu’s lawyer say they will appeal, and we may end up with a Circuit decision that won’t bode well for the contents of computers.  So much for Pretty Good Protection.

The first time the words appeared, it was in an amicus brief filed in Williams v. Illinois.  Criminal defense lawyers were, to be mild, giddy about it, and could barely contain their delight that New York County District Attorney Cyrus Vance put in writing that the foundations of so many convictions, eyewitness identifications and confessions, were unreliable.

The expectation was that we would never see these words again. Maybe it was a mistake.  Maybe it was an inartful argument.  But we held the words close to our breast because the notion that this would happen again was, well, more than any lawyer could expect.  We were wrong.

In an Op-ed in the New York Times, Cy Vance did it again.

No law enforcement tool is perfect, and, as with a fingerprint, a DNA match at a crime scene is an investigative tool, not proof positive of guilt. But DNA is by far the most reliable evidence we have today — more than eyewitness accounts, testimony and even confessions. And importantly, as we try to make our justice system more fair, DNA is truly color blind.

This paragraph concluded his argument in favor of collecting DNA from “every person convicted of a crime,” meaning from those convicted of misdemeanors now exempt from collection. He argues that in the case of Curtis Tucker, it would have prevented a crime from occurring by solving an open case years earlier.  One anecdote, of course, makes for a low rent argument, but people find concrete examples easier to grasp than theoretical explanations.

His proposal is relatively modest, given that others argue for the collection of DNA from every person arrested, rather than convicted.  Still, issues abound.

Crucially, DNA evidence does more than put criminals away; it also exonerates the innocent. One of my top goals as district attorney has been to avoid wrongful convictions. Having a tool like an all-crimes DNA databank at our disposal would go a long way toward helping us achieve that all-important goal of avoiding wrongful convictions.

Cy has a point, as we’ve learned from the excellent work of the Innocence Project.  It is most definitely a two-way street, with  prosecutors like John Bradley fighting to prevent the DNA testing that exonerated Michael Morton. 

Despite the truly remarkable benefits of DNA testing, some skeptics have questioned whether it is sufficiently regulated and reliable. This concern is understandable but unfounded. The collection of DNA is highly regulated in the eight state-of-the-art, accredited state labs that conduct criminal forensic analysis. Strict safeguards control the handling of DNA testing and results, including the storage of information by barcode and not name, with criminal penalties for those who violate these rules. When testing leads to a match in the databank, samples are retested at least once and often twice. To date in New York, we have never had a “false positive,” or the misidentification of DNA from one person as the DNA of another.

Just down the road apiece from Manhattan is Nassau County, where the  crime lab was shut down for rampant impropriety.  The local DA, Kathleen Rice was shocked (shocked!), having no clue that anything was amiss.  So it hasn’t happened to Cy yet? That doesn’t mean it can’t. Or won’t. All the official words designed to make us feel secure in the handling of DNA, up to and including “barcode,” will mean little should a scandal happen.  Scandals do happen.  Even in New York City.

Today, DNA is the magic bullet of forensic science, the evidence that changes everything.  Fingerprints once held that status, but we’ve since learned that this “investigative tool” was another bit of evidence that was converted into infallibility by junk science.  And we’ve learned that eyewitness identifications, which “everybody knows” is incontrovertible, are remarkably unreliable.  And confessions, which “nobody would ever give if they didn’t do the crime,” are barely worth the paper they’re written on.

Cy Vance is right about much of what he writes.  He’s right that people have been convicted for centuries on evidence that was universally embraced and yet unreliable.  He’s right that the myth of “common sense,” that jurors, witnesses and his assistants, will cling to the traditional, albeit unreliable, evidence as if it’s sacred. 

But he’s not right that nothing can go wrong. DNA proved Amanda Knox guilty, and was subsequently shown to be wrong.  Whenever people are involved, and people are always involved in the prosecution of crime, something will go wrong. That it hasn’t gone wrong yet in New York County doesn’t mean it won’t. And when it does, if it does, someone will blame pilot error.

The op-ed, however, makes one thing clear for now.  It was no accident, no fluke, that Cy Vance’s amicus brief acknowledged that the best traditional evidence ever, the stuff used to convict more defendants than anything else, is unreliable.  This time, it comes directly from Cy’s hand. This time, following on earlier commentary noting the significance of his statements, it was as deliberate as it gets. Cy Vance confirmed that eyewitness identifications and confessions are not reliable.  Cy Vance knew what he was saying, and he said it. Again.

And for that, I thank him.

In fairness, New York City has no shortage of nuts.  But then, that includes the NYPD, whose officers aren’t necessarily inclined to spend a great deal of time pondering whether someone stopped really is what he says he is or just left his tin foil hat behind that day.  That’s what Bellevue is there to do.

Via that bastion of journalistic accuracy and the occasional multi-sentence paragraph, the New York Post :

Shaun Day, 29, was on a two-week leave when cops harpooned him for running a red light at 12:30 a.m. at Second Avenue and East 26th Street.

When cops searched his pickup truck, they discovered a 9mm semiautomatic and three ammunition clips.

During the arrest, Day was rambling incoherently and harped that he was a SEAL — but had no proof for cops.

He claimed he was an elite commando with “top- secret clearance,” cops said.

What’s a cop to do? Bellevue, baby.  As it turns out, Shaun Day was a Navy Seal.  As it turns out, there is  no “proof for cops” that someone is a Navy Seal for good reason :

Many SEAL impostors offer tattoos as evidence that they are actually members of the US Navy’s SEAL Teams…It is perhaps appropriate to point out that the requirements of Operational Security (OPSEC) and Personal Security (PERSEC) are not well served if members of an elite military force like the SEALs are wearing the identifying emblem of their unit tattooed on their bodies. These are not the freewheeling days of wooden ships, canvas sails, and sailors wearing exotic tattoos from unheard-of ports in the primitive South Sea Islands. This is the 21st Century, and the modern Navy is a completely different entity. The popularity of tattoos is increasing, including the SEAL Trident emblem or variations on that theme, and more SEALs do have tattoos today than 30-40 years ago. Still, those tattoos are never offered as proof of SEAL training or SEAL duty. There is no tattoo which is either currently recognized or accepted as a means of identifying certain SEAL members.

Without any means of identifying oneself as a Seal, what would you expect of the NYPD?  I venture to guess that most of the people stopped by the NYPD have some story to tell, often that the person stopped is a lawyer and “do they know how important they are?”  It makes Bellevue seem a pretty reasonable choice.

But now that we’re past the cute part of the story, two issues remain untouched. First, what difference does it make that Shaun Day is a Navy Seal if he’s driving around Manhattan with a 9mm handgun in his pickup?  Unless he was on Navy Seal business, he’s subject to the same laws as anyone else in Manhattan, and those laws (whether properly or not) prohibit the unlicensed possession of a weapon.  There are plenty of guys in prison who can tell you that, many of whom only possessed it in self-defense.

More curiously, given that Day was stopped for running a red light, how exactly did the cops come to search his pickup and find the gun?  There is no suggestion that any reason to search existed, even under the amorphous “automobile exception,” for running a red light.  Give him a ticket and wish him well. 

While Shaun Day may be everything he claimed to be, the question remains why the NYPD conducted a search and, now that they know Day is a Seal, seems prepared to give him a free pass. Crazy.

Since the opinions were released yesterday morning, the blawgosphere has cranked out a ton of posts about what the  Jones v. United States decision means. The majority decision was written by Scalia, with concurrences by Alito and Sotomayor. While it was 9-0 on outcome, it was anything but on rationale.

The shorthand reaction broke it down this way:

The Scalia opinion had the support of Chief Justice John G. Roberts, Jr., and Justices Anthony M. Kennedy and Clarence Thomas, in addition to Sotomayor’s notation that she joined it.  It thus did represent a majority declaration.  No other Justice joined the Sotomayor concurrence.  The Alito concurrence was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Elena Kagan.

Orin Kerr, whose article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004), was cited by both the majority and the concurrence, wrote a bevy of posts about it, trying to make sense of it.  Others, who didn’t want to think so hard, wrote simply that the Supreme Court held that the use of GPS tracking device requires a warrant, a view that shows why internet pundits can’t necessarily be trusted.

The best analysis of the varying positions on the court was written by Tom Goldstein at SCOTUSBlog :

Here is the upshot.  Five Justices join the holding of the “majority” opinion (per Scalia) that by attaching and monitoring a GPS device the police conduct a “search”; four Justices (those in the Alito concurrence) reject that view.  Five Justices join or express their agreement with the portion of the “Alito” opinion concluding that the long-term monitoring of a GPS device violates a reasonable expectation of privacy; four Justices (those in the majority, minus Sotomayor) leave that question open.

Goldstein correctly notes that this raises some significant questions:

First, does the “search” caused by installing a GPS device require a warrant?  The answer may be no, given that no member of the Court squarely concludes it does and four members of the Court (those who join the Alito concurrence) do not believe it constitutes a search at all.

Second, assuming no warrant is required for installation, is a warrant required for short-term monitoring of the GPS device?  Again, the answer may be no, as the majority conspicuously avoids addressing this issue and four members of the Court (again, those who join the Alito concurrence) squarely say that the answer is “no” (Alito op. at 13).  Justice Sotomayor alone says that this scenario “will require particular attention.”

Neither the Scalia majority nor the Alito concurrence provides much of vision of the future.  This clash between the two sums up the problem :

The Scalia and Alito opinions clashed, almost comically, over whether there was a 1791 equivalent of the kind of privacy invasion that GPS devices might threaten under a theory that they involved a “trespass” on private property.   Back then, Scalia suggested, “a constable” might conceal himself “in the target’s coach in order to track its movements.”   Alito countered that “this would have required either a gigantic coach, a very tiny constable, or both — not to mention a constable with incredible fortitude and patience” — a reference to the fact that, in the case before the Court, the monitoring went on 24 hours a day for 28 days.

It might be comical, except that these are our Supreme Court justices squabbling over the future of our privacy and personal sanctity while making jokes about tiny constables.  I was beginning to think that Orin Kerr was right  when he came up with his Equilibrium-Adjustment Theory, that legal doctrine is mere nonsense set out for public consumption to make us think there’s some actual rule of law involved, when this is all really about the justices playing “rough justice” with our rights and using any excuse they think they can get away with.

But if that was the case, nobody invited Sonia Sotomayor to the party.  In her separate concurrence, Justice Sotomayor  seems to recognize that neither drawing analogies to 1791 nor leaving the scope of our rights to the legislative process cuts it. 

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.

But she’s one of nine, and this quote barely scratches the surface of the problems raised by technology, the third-party doctrine, Katz’s reasonable expectation of privacy test and precedent.

In my  earlier post about  Jones, I saw this case as being a litmus test for the Court’s recognition of the problems technology presented to the future of Fourth Amendment jurisprudence.

The question of whether the Supreme Court has both the depth of understanding of the nightmare potential technology brings to the Fourth Amendment, as well as the long-sightedness to realize that it’s decision will be extrapolated to all manner of technology that we have yet to conceive of, is about as scary as it comes.

That one justice of nine seems to have some appreciation of the danger ahead, how poorly law developed to deal with normal-sized coaches and full-height constables applies in the digital age, is better than nothing.  But given how the Court broke down here, it’s clearly not good enough. 

Does the plant of a GPS device on a car require a warrant? Under the particular facts of Jones, yes. (Addendum: this is the net result, not the holding of the case, which skirted the issue entirely.) Under other facts, who knows. And how does that translate to the next shiny device? Only lone Justice Sotomayor even cares, while the rest seem determined to ignore the digital age at all costs. 

To the extent this case presented an opportunity for the Supreme Court to move into the digital age, to acknowledge that technology has changed the fundamental equations and demands attention, the Jones decision shows a Court mired in the past and ignorant of the future.  Or maybe a Court making up doctrinal excuses and divvying up rights as they, in their nine-headed “wisdom,” think we deserve them. 

What this is not is a decision that offers any comfort that the Supreme Court is coming to grips with the impact of technological change and our personal freedoms.  One out of nine isn’t good enough.

Kim Schmitz, at 37, who changed his name to Kim Dotcom, was enjoying life. He had a ton of toys and lived large.  Why shouldn’t he? He had the money to pay for this life, and it’s no crime. Unless the source of the money came from crime, in which case it’s a different story altogether.

The indictment, a tedious document replete with the typical surplusage that makes his every utterance sound ominously nefarious, may be half (or more) fluff, but if only a tiny fraction is accurate, will be sufficient to lock him away forever. 

Still, it sends the message. No matter where you are, or how big you get, the United States of America will get you, because it owns the internet.

He held German and Finnish passports, but lived in a mansion in Auckland, New Zealand.  Sure, there were 525 servers used by MegaUpload in Virginia, but then there were 630 servers in the Netherlands. The corporation was based on Hong Kong.  No matter. We have laws and the clout to make them apply to anyone, anywhere.  Even to Kim Dotcom, who  had the audacity to own cool cars with naughty license plates.

The indictment goes after six individuals, who between them owned 14 Mercedes-Benz automobiles with license plates such as “POLICE,” “MAFIA,” “V,” “STONED,” “CEO,” “HACKER, ” GOOD,” “EVIL,” and—perhaps presciently—”GUILTY.” The group also had a 2010 Maserati, a 2008 Rolls-Royce, and a 1989 Lamborghini. They had not one but three Samsung 83″ TVs, and two Sharp 108″ TVs. Someone owned a “Predator statue.” Motor bikes, jet skis, artwork, and even 60 Dell servers could all be forfeit to the government if it can prove its case against the members of the “Mega Conspiracy.”

It’s not the number of Mercedes owned is a significant criteria under the sentencing guidelines per se, but anybody who has more toys than the rest of us must have done something criminal.  And we just hate them anyway for living a funner life than us.

As Ken at  Popehat noted, the indictment and takedown came on the heels of the SOPA blackout, but couldn’t possibly have been related given the time and effort required for the investigation.  Heck, they couldn’t have typed the indictment fast enough to make the timing work.  Coincidence aside, it’s still part of the same problem, in that the government’s efforts to make its mark, to tell the world that it’s subject to the might of the United States even when it exists only in the cloud, was clear.  The laws being considered by Congress, and for which Congress got smacked by an unforgiving internet, was a tentacle of the government’s effort to rule the world we know as the internet.  So was this indictment.

There is a lesson in this indictment, fortuitously coming immediately after the blackout, that anyone who thinks the internet is the wild west, where there is no law other than survival of the fittest, is wrong.  No matter where you are, no matter how much money you make, no matter what, the United States of America has taken jurisdiction over you and, well, will bring you down if it so chooses.

One of the underpinnings of the need for SOPA/PIPA, for law to address the devil of the web, was the inability of copyright holders to reach beyond the jurisdictional limits that comprised the foundation of our legal system.  We could sue, and perhaps even get a judgment assuming we could meet the procedural requisites to appear to obtain jurisdiction under the old way of thinking about things, but it seemed like a pointless effort.  All that time and money spent trying to grab hold of a world that existed in binary code. Why spend good money on a worthless judgment? The internet laughed at our legal system.

Thus comes the Mega Indictment, a very deliberate decision to use scarce prosecutorial resources to make a critical point in the maturation of the internet.  Having already established through the peculiar jurisprudence of terrorism that everywhere is America for the purposes of jurisdiction, requiring little more than some facile rhetoric and a decent understanding of Chaos Theory to connect the dots and present a cogent argument about how everything that happens affects us, no matter where or when, jurisdiction over the Mega defendants was a no-brainer.

For the powers that favor an orderly and controlled internet, this indictment was absolutely critical, a means of telling every would-be internet pirate/entrepreneur that the rules apply or they will be crushed.  That the internet is everywhere, and anywhere, would present no obstacle to the most powerful nation on Earth.

In a way, this was necessary.  The internet defies arcane concepts of jurisdiction.  Sure, a guy in his basement in Des Moines was easy enough to nail, but what of Dotcom in Auckland? Or Germany, or the Netherlands?  What about Fujian or Bangalore?  It no longer matters where you are. Physical presence has been rendered meaningless, and if the government of China or India isn’t interested in squelching piracy by someone on its soil, does that leave the rest of the world powerless to do anything? 

We may not be particularly sympathetic to the MPAA or the RIAA because of their outrageously heavy-handed tactics, there are aggrieved parties who still need a means of redress short of putting together armed forces to invade foreign nations.  On the other hand, the United States has taken it upon itself to declare sovereignty over the internet, to proclaim that no matter where it happens, it’s subject to our laws.

Thus far, it appears that law enforcement in New Zealand is on board with the United States ownership of the internet, and their cooperation in executing warrants and seizing cool cars with funky license plates smooths what might otherwise be a sticky situation.  Whether the New Zealand courts will be as cooperative has yet to be seen.

While us little people were spending out time bemoaning SOPA/PIPA, the might of the United States was being applied to far bigger, far more important issues.  But it’s all part of the same message.  There will be law on the internet, and that law will be dictated by the United States of America.  If we can take down MegaUpload, we can take down you. And me. And anyone.  Now you know. 

Mentoring has become one of those buzz words in social media that is used to make stupid people stupider.  Wrap up interaction in the mentoring box, tie a pretty ribbon on it, and pretend that the desperate search for validation on the internet is a substitute.

A while back, Venkat Balasubramani noted the “Cult of Positivity” on twitter, where being nice to people you don’t know was repaid by their being nice in return.

Positivity certainly reigns supreme in the corner of the Twittersphere that I frequent, and my impression is that there are other pockets of it that are overwhelmingly positive as well. Twitter is all about highlighting positive things and people.  The virtual high five or pat on the back is currency on Twitter.  Indeed, research is passed around which shows that “negative remarks lead to fewer followers.”  In my (admittedly anecdotal experience), while there are a few people who call it like they see it, most legal birds are effusive in their praise and quick to withhold criticism.  And this extends to points of view taken, articles passed around, etc.  It’s almost as if it’s socially unacceptable to say that something sucks. 

This led Venkat to wonder whether all the positivity led to a negative impact, with people so concerned about positivity that no one wanted to be critical where criticism was warranted.  Where never was heard, a discouraging word…

Not only is the cult of positivity rewarded, but it’s not necessarily honest.  Seth Godin notes how those seeking validation are easily taken in by those who applaud with an ulterior purpose.

Humans have a natural openness to reciprocity. It’s a time-honored survival technique, one that allowed us to live together in villages for millenia. Someone who doesn’t reciprocate is less likely to be protected by his peers, right? Not only have we been taught reciprocation since birth, but it feels right. It’s baked in.

The problem occurs when the trading of favors become mercenary, when alert individuals start manipulating the system for personal gain. Suddenly, every favor is suspect, measured and not at all generous. Suddenly all the likes and links and blurbs become nothing but currency, not the honest appraisals of people we can trust. It means that bystanders have trouble telling the difference between honest approval and the mere mutual shilling of traded favors.

You think your twitter buddies are being supportive, while they play you so that you will be there when they need the favor repaid.  Yet, you’re sufficiently appreciative of their warm embrace that you are an easy mark, and are only too happy to return the favor of positivity and support to your sweet mentors.

Except mentoring requires not only the support of the good, but the criticism of the bad. Mirriam Seddiq made this point in an homage to her mentor, Terry Kindlon:

Mentorship is not about telling you you’re a superstar.  It’s about helping you get it right, or at least getting you closer to right than you were before you asked for help.  It’s also not about being nice. I published a letter from Terry to me wherein he basically tells me to go fuck myself and my hurt feewings.  I know at the time I probably cried when I read it.  It’s not nice.  It’s the opposite of nice.  But in that same letter he tells me to suck it up because I’ve got what it takes.  That, my friends, is high praise from the likes of him.  Good lawyers are made, not born.  But like any other creation, it’s not a simple process.  It is painstaking and methodical and requires a great deal of effort.  It also requires an incredibly thick skin. 

While empty validation is readily available online, and particularly on twitter, it bears no resemblance to mentoring.  Words of empty support, at 140 characters a shot, don’t make you any better. They just make you feel better.

For this reason, Kevin O’Keefe’s post, asserting “Twitter enables lawyers to improve their craft,” at  Real Lawyers Have Blogs, demanded attention.

The Washington Post’s Emma Brown (@emmersbrown), reports this morning that Twitter enables teachers to improve their craft. Twitter’s become a community of mentors offering inspiration, commiseration and classroom-tested lesson plans.

I’ve been on Twitter long enough to see the same camaraderie, collaboration, and learning taking place among attorneys using Twitter.

Classifying Twitter as solely a social media tool for marketing is shortsighted. Twitter immediately connects you to relevant information and people. That’s a coup for lawyers looking to become better lawyers.

Twitter is awash in “camaraderie,”  It stinks of it.  Insipid twits aplenty, offering virtual belly rubs for the asking.  There are the occasional witty twits, but they’re rare. There are even more rare informative twits, but there isn’t much of any worth that fits in 140 characters.  If that’s as deep as someone is capable of thinking, then perhaps it seems informative.  More likely, it’s just the positivity, since the need for validation seems to drive people to engage in blind twitting with people about whom they nothing filled to warm words and the appearance of empathy. 

Does it make you happy?  That’s nice.  Enjoy it, if that’s what you’re looking for on the internet.  But this has absolutely nothing to do with mentoring.  No one “improves their craft” via twitter. 

There’s harm being done here, and that’s why it’s necessary to point this out.  The lawyer who has tried ten cases is being “mentored” by the twitter lawyer who has never tried a case.  The lawyer who has tried 100 cases, but poorly, is a twitter rock star.  The twitter lawyer isn’t a lawyer at all, but someone “passionate” about something he knows nothing about.  You have no clue who you’re twitting with, and your twitter support group becomes the ultimate measure of the virtual “risky shift” phenomenon.  With support, the worst ideas begin to sound reasonable. 

Mentoring is crucial for lawyers, particularly the young and new ones who tend to look to the internet for comfort.  It’s not about camaraderie, or support, or high-fives or even getting your tummy rubbed.  It’s about being told when you’re wrong, before you do something foolish and damaging. It’s about a deeper understanding of what we do than appears in 140 characters. It’s about real people talking about real things with other real people, who we know and trust.  It’s about having a better reason to seek the advice of someone than the expectation that they will tell you how wonderful you are and give you a balloon.

Social media can be a fun way to kill some time, and twitter can be a wonderful substitute for real friends for those who feel isolated and alone.  It’s not without its virtues.  But mentoring is not one of them, and blind validation is the antithesis of mentoring.  If you’re seeking a pat on the back, knock yourself out on twitter. If you want to “improve your craft,” don’t delude yourself by thinking that your twitter pals are the answer.

Get real.  Find a real mentor. Engage in real discussion.  And leave the cult of positivity on twitter, where you can kill some time after you’ve done something meaningful.