So the child super-predator myth hasn’t held up to scrutiny very well.  Big deal. What about the 66-year-old knife-wielding, aggressive-walking, triple-bypass, demented predator?  Huh?

Of course, it’s not like Melbourne, Florida, Police Officer Derek Middendorf got away with it entirely.  Absolutely not. He was issued a written reprimand for turning off his dash cam and audio.  Cops have rules, you know, and they are taken very seriously.

What remains a curiosity is that vicious old man Albert Flowers continues to be prosecuted for his assault on Middendorf.  If you watch the video closely, you can see it quite clearly as some part of Flowers’ midsection violently attacked Middendorf’s foot.  There’s no word on the condition of the officer’s foot, but we can only be thankful it was covered in heavy cop shoes. 

Notably, Flowers’ lawyer is demanding a speedy trial, likely as a concession to the speedy walking of his client.  Flowers is pretty darned speedy for a guy who underwent a triple bypass. Ah, the miracle of modern medicine.

What is remarkable is that the Melbourne police were apparently capable of “extracting” this video from Middendorf’s turned-off dash cam.  How exactly that works isn’t clear, but it belies the frequent excuse that no video exists when police cruisers are equipped with cameras.  Without the video, there’s little doubt that Middendorf’s description of Flowers’ vicious attack would have been impossible to dispute.  After all, who is to be believed, the police officer just doing his duty or the vicious old man?

What  is truly remarkable about this, and similar videos, is that there is no facial reason for the officer to have engaged in any violence against Flowers.  As is invariably the case, the rhetorical ploy, “why would the police officer have attacked the defendant as claims,” would be used and likely been overwhelmingly persuasive.  And yet, the officer did precisely that, attack a person against whom he had no discernable animus for no discernable reason.  It happens.  It happens regularly.  And it can’t be explained, especially not by the person attacked by the cop.

In the absence of audio, one might speculate that Flowers said something to the officer to place him in fear, or that the officer commanded that Flowers halt and yet he continued to approach.  Yet neither of these allegations were made, suggesting that while they might make sense, they simply didn’t happen.  The problem is that everyone, from viewer of the video to judge, tries to make some sense of Middendorf’s otherwise outrageous attack and beating of Flowers because we find it too disturbing to believe that it was just a pointless, unprovoked attack on an old man.  Our minds refuse to accept such pointless violence.

But then, the coup de grace, the tasing, reminds us that this is the real world, where the first rule of policing applies at all times.  We can’t find a rational explanation for what was done to Albert Flowers, and yet at the end of this brutal confrontation, the cops went home and Flowers went to the hospital for a month.  But at least Middendorf got a written reprimand, which shows how deeply the police administration cares about the new professionalism.  Beat them all you want, as long as the video remains on.

H/T Turley

Getting frisked in New York City is all about nuance, according to John Jay College of Criminal Justice professor Eugene J. O’Donnell.  From the New York Times :

To Eugene J. O’Donnell, a professor of police studies at John Jay College of Criminal Justice, the case underscores how officers sometimes struggle to articulate nuances in the laws they must apply.

Law enforcement, Professor O’Donnell said, “demands that you know the law, instruct subordinates what the law is and engage in an ongoing commitment to tailor your practices to comply with statutory and case law, which constantly evolves. This has seemed to concern the department less than it should.”

Apparently, nuance, like beauty, is in the eye of the beholder, when it comes to stopping livery cabs, pulling the passengers out on the street, detaining and frisking them under the Taxi/Livery Robbery Inspection Program, with the apt acronym, TRIP. 

Two men, Terrence Battle and Munir Pujara, represented by the ACLU, have sued the New York City Police Department for routinely detaining and searching livery cab riders.  As the cabs work the outer boroughs, where medallion cabs fear to tread, the riders tend to be more “colorful” than the Manhattanites, meaning that 80% of the people frisked are black and Hispanic.  Again.

The suit has managed to overcome its first hurdle by surviving a motion to dismiss.

In his ruling, Judge Richard M. Berman of Federal District Court on Friday rejected the city’s argument that the stops of Mr. Battle and Mr. Pujara were isolated incidents. Rather, he said, their complaint alleges a routine practice, one they would probably face again in the future.

“The pleadings suggest a widespread custom or failure to train,” wrote Judge Berman, who added that he was not yet ruling on the truth of the plaintiffs’ allegations.

The old “isolated incident” defense rears its ugly head.  While Radley Balko has done yeoman’s work cataloguing the “isolated incidents” of raids and warrants executed on the wrong houses, with the ensuing destruction, harm and humiliation a necessary but unfortunate consequence, the numbers involved in New York City are so monumentally huge that it dwarfs anyone’s ability to keep count, including the NYPD.

Under the Bloomberg administration, the number of question-and-frisk encounters mushroomed to 601,055 in 2010 from 97,296 in 2002.

While the city has created numerous programs designed to allow one person to give away the rights of others, including the one authorizing police to detain anyone entering a building without a key, or entering a targeted block, this program was created to protect livery cab drivers from robbery.

At its heart, the TRIP program is meant to help protect livery cab drivers, who have become targets for robberies and murder. By displaying a simple window decal bearing the words, “This vehicle may be stopped and visually inspected by the police at any time to ensure driver’s safety,” a driver consents to being pulled over by any officers seeking to check on his well-being. The plaintiffs in the suit seek to address the narrower issue of passenger treatment after the stop, not the legality of the stop itself.

Assuming (and this remains problematic) the drivers’ consent to a stop without cause, the most it would give rise to is a question of the driver as to whether there’s any problem.  If the driver says no, then the police officer should tip his hat and let them go on their merry way.  Instead, the confrontation turns to the passengers, who have done nothing to justify a question, no less detention or search, and the cops get a free search of people for whom no reason exists beyond their having taken a ride in a livery cab.

So where’s the “nuance” that O’Donnell finds so difficult to convey? Even assuming the sticker on the cab window is sufficient to waive the 4th Amendment (or in New York, Article I, Section 12) of the Constitution, in order to stop the cab to inquire, the leap from a question to a full blown search hardly demands a detailed explanation as to why it’s unlawful.  To suggest, as O’Donnell does, that this isn’t about cops so cavalier in their power to search anyone at any time, but merely some bit of confusion as to the limits of their authority, is downright ridiculous.

Between the various programs, including the  street stop-and-frisk program that’s been the source of constant tension, the fact is that New York City has become a constitution-free zone when it comes to detaining and frisking people.  And the statistics make it overwhelmingly clear that the people being frisked are not only people of color, but innocent of any wrongdoing.  Despite being roundly criticized, it continues and the City continues to defend the practice of ignoring the rights of its residents to walk, ride or breath without being molested for no reason under the sun.

This time, the City argued against the action by claiming that the defendants’ frisks were isolated incidents. Judge Berman rejected the argument, not because he concluded otherwise but because the plaintiffs alleged the incidents to be routine, making their claim sufficient to overcome the rhetoric.  Yet, given the numbers involved, and the fact that its been so well documented that there can be no reasonable question that the police use any excuse, or none, to stop and frisk at will, and that more than 90% of those frisked come up clean and just walk away, it would be awfully nice if someone finally concluded that this is happening.

But when the isolated incident excuse runs dry, the next one, prefaced by O’Donnell who dismisses it as a difficult training nuance rather than a wholesale, deliberate violation of the constitutional rights of black and Latino New Yorkers, will kick in.  Expect another decade of the same stop and frisk, with maybe a few new programs thrown in for our safety, to allow the police an opportunity to better prepare officers for the incredibly difficult nuance of not detaining and searching people for absolutely no reason. It will no doubt be a difficult lesson.

And by the time that excuse dries up, the apologists will have had ample opportunity to develop the next gen excuse for stops and frisks.  And no one of color walks down, or drives down, a New York street with his right to be left alone intact.

The  ABA Blawg 100 crowned a new Best Blawg in criminal law, and the honor goes to Jamison Koehler and his modestly named Koehler Law Blog.  While the competition may not be my cup of tea, that doesn’t mean that winning isn’t a significant achievement, and reflects the respect and dedication of readers.  Jamison has attained that respect and earned the prize.

Jamison, a former Philadelphia public defender, struck out on his own in Washington, D.C. a couple years back.  Like every lawyer trying to establish his own practice, it’s hard to shine without clients to provide the opportunity.  He started the blog as an opportunity to establish his knowledge in the eyes of potential clients, and has written some excellent posts, particularly in the area of drunk driving, where his knowledge of the intricacies of testing and procedure really shines through.

But more than his skill in drunk driving defense, Jamison’s writing style is perhaps the most enjoyable in the blawgosphere.  The ABA Blawg 100 description of his blawg called him “(refreshingly) humble,” a characterization few of us could ever claim.  And indeed, he is, with a self-effacing style that is impossible not to appreciate.  Frankly, I can only aspire to be as good a writer as Jamison.

My wild guess is that he gets it from his father, a poet of both renown and great talent.  Jamison’s occasional homage to his father, who lives on his writing, is both heartwarming and moving.  They say the apple never falls far from the tree, and if that’s true, then Jamison’s fabulous writing style comes to him as honestly as can be.

This likely explains why Jamison’s readers think so highly of him and are both devoted and supportive, which isn’t always the case in the blawgosphere.  It’s all too easy to let controversy cloud the person behind the blawg, and yet Jamison’s tone manages to come through in very post. 

So I congratulate Jamison for his well-deserved win for Best Blawg in Criminal Law.  As every blawger knows, it’s not easy to produce thoughtful posts that not only reflect well on the author, but help to improve the law and add to the scope of knowledge generated by the blawgosphere, and I look forward to Jamison’s continued contribution to helping illuminate worthy ideas and reflect the highest ideals of the profession.  Now that’s he’s the best criminal law blawger, expectations run high, and I expect Jamison to be just the man to meet them.

At MoneyLaw, Louisville Law Dean Jim Chen wrote what few lawprofs wanted to read, that the denials and protestations within the legal academy aren’t winning any converts:

Let me begin with the angry deniers. For my part, I do not believe that law professors and law schools do themselves any favors, in an age of indebted students, unemployed law school graduates, and laid-off lawyers, to trash these criticisms as a “hatchet job” or (better yet) a “bile pile.” It takes a deep measure of cynicism, perhaps even petty selfishness, to characterize the Times as being motivated by their writers and editors failing to get relatives into law school or past the bar exam. A second, less angry cohort of law professors fervently wants to believe that tough times in the legal profession are merely cyclical. Wait a year or two or five, so the wishing goes, and things will be back to the way they always were.

Count me in the third camp. The criticisms are real. They sting. All of us, from law schools and law students to lawyers and law firms, have to do something. Things could, things should be better.

The hard truth is that law schools could stand to act more like law firms, paying closer heed to what lawyers actually do for a living. Law firms could stand to to act more like law schools, absorbing the cost and the responsibility of training their new recruits instead of expecting law professors to know skills best perfected far from the classroom. Law students would be well served to take a hard, financially sophisticated look at the out-of-pocket and opportunity costs of legal education, to say nothing of the strictly pecuniary returns on their investments in personal capital. The Socratic method and the parsing of written appellate opinions have a firm place in law school. But law schools and bar examiners and hiring partners should all work together to reconsider why and how we teach certain things. Sheer age and force of habit are terrible excuses for doing anything, much less forcing aspiring members of our profession to endure a three-year ordeal.

Law schools do need to change —so  does the profession, if nothing else by ending the billable hour—- and so do the courts, if nothing else by throwing out the present rules of procedure and coming up with an entirely new paradigm.

I don’t think any of these changes will happen.  What I think will happen is that legal education and the law as we know it will vanish as they become increasingly irrelevant. The Age of Administration is already here.

The universities have been ruined by the shift to administrators; the courts and lawyers continue to price themselves out of the market.

—-But then, I’m an optimist.  Imagine the whole system as a replication of the airline industry.

The Age of Administration strikes me as Judge Kane’s way of saying that our world is being run by grocery clerks with a check list, refusing to budge off their rules and requirements lest they be subject to criticism for failure.  But the judge recognizes that the courts have become “increasingly irrelevant” in society, and that “courts and lawyers continue to price themselves out of the market.”  Notably, he includes courts in that statement, not just over-priced lawyers.

That such a view would be expressed by a disaffected litigant would be no surprise at all. That it comes from a federal judge is very different.  The same is true when it comes from a law school dean.  The people who are most vested in the system, maintaining it the way it is and perpetuating it long enough for them to retire so they bear no responsibility when it collapses, is pretty bold.

It’s one thing to criticize law school and face the shrieks of lawprofs who demand their right to play scholar on the backs of kids who only want to become lawyers and get a job.  But the discussion has largely occurred outside of the confines of a failed system of practice.  Our courts satisfy no one. It takes forever to litigate and reach a result.  Most disputes are priced out of the market for practical reasons. 

Rarely does anyone “win” anything from litigation; they do in full of righteous indignation and come out the other side hoping their adversary suffered more than they did.  No one really wins.  Nothing is really resolved.  And judges seem just as oblivious to the failure of the legal system to serve people’s needs as lawprofs are toward their students.

We’re not just hearing it from the dissatisfied and disaffected, but from the players within the system.  We, all of us, have mucked it up pretty badly.  We can explain how and why it got this way, but that doesn’t make it any better, or serve to provide guidance for how to take this system and make it work for people again.

So while we can worry about law schools failing to produce lawyer-ready students, we are foolish to do so without simultaneously rethinking how the system needs to change.  Without the latter, we have no real clue what to demand of the academy in preparation of future lawyers.  We’re a mess, and it’s time to face the strain and change.

With turmoil aplenty in the blawgosphere over the past week, stemming from the discovery of settling  Rakofsky v. Internet defendants  Lori Palmieri and Martha Sperry, and from there flowing downhill at a  remarkable and disturbing pace.  No need to discuss the harm done to integrity and intellect, as it’s already been made abundantly clear if you’re so inclined to see it.

And that’s the point. Whether a writing is too harsh or too lenient, too deep or too insipid, it reflects the sense of the writer.  Readers may, and often do, disagree. That’s how thought works.  Contrary to the expectations of some lawyers who participate in the blawgosphere, you don’t get to publicly opine, display whatever you believe to be brilliant, and demand the applause of the crowds.

My pal, Kevin O’Keefe, who is in the business of selling blogs, pitches his wares as a means for lawyers to demonstrate their expertise.  What he doesn’t say is that it’s also a way to demonstrate their cluelessness or venality.  Write something great and others may think well of you. Write something awful and they won’t, and chances are pretty good that a lawyer can ruin a reputation by publicly revealing their intellectual or moral bankruptcy.  Of course, if Kevin were to talk about the downside, it wouldn’t help to sell blogs.

In her attempt to defend herself, Martha Sperry, who is a lawyer but whose internet focus is on shiny toys rather the shiny thought, wrote that she felt more “muzzled” by the criticism of her decision to settle, which required her to write about how the blawgosphere was unfair to Rakofsky, than by his defamation lawsuit.  Putting aside the disingenuous nature of her epiphany, which committed the sin of omission by desperately trying to sidestep that it came about as a means of settling the case, Sperry’s arguments created their own response.

No doubt Sperry’s muzzling claim was an accurate reflection of how she felt, likely the most honest thing she had to say in her own defense.  But it reflects a misapprehension of how speech works. Say something publicly and expect someone to disagree.  When they do, they aren’t muzzling you, but responding. That they disagree, and disagree vehemently, isn’t muzzling. It’s a reflection of the nature of public speech.  When you choose to speak publicly, you have no right to complain about disagreement. 

Similarly, there’s no right to complain about the quantity and courtesy of disagreement.  Just as a blawger’s writings reflect her sensibilities, the reaction reflects the sensibilities of others.  In my post on Lori Palmieri, one  commenter told me my post was “mean-spirited and, frankly, valueless.”  Not only do I accept his assessment, but I invite it. While I disagree, I don’t deny that my writing failed to meet with his approval, and, by his sensibilities, was exactly as he said.  That’s the risk I take when writing, inviting an disapproving reaction.

Another told me my post was “senseless and gutter bullying,”  He subsequently wanted me to debate him about it.  There’s nothing to debate. He’s completely right, based on his sensibilities, but that’s of no consequence to me.  I fully expect some to find me too harsh, too extreme, on occasion, but I take the risk when I write.  Universal approval is not my goal, so the fact that some readers think my writing horrible isn’t at all disturbing.  It’s expected. That I disagree with them doesn’t make them wrong, but merely demonstrates that we do not share the same sensibilities. Even if they can’t live with that, I can.

The flip side is similarly problematic, and gives rise to the mistaken perception of “mobbing” and “bullying,” language used by people who seek to impugn the integrity of the blawgosphere without grasping its nature or addressing the speech involved.  The blawgosphere is made up of individuals, some of whom have very different sensibilities, and some of whom share a very similar sense of integrity and relevance. 

There is no weekly meeting of blawgers, where it’s decided that a bunch will write about a particular issue or problem.  There is no mob, nor ability to create a mob. Rather, an individual will make a personal choice to write, and what to write, based on his sensibilities.  That someone else has written on the same subject, or expressed a similar view, isn’t a reflection of mobbing, but shared sensibilities.  We can’t help it that we’re not the only person in the blawgosphere to think something.

There are certainly times when it seems, in retrospect, that the totality of the blawgosphere has overdone a particular story, a particular issue, or in the case of someone like Rakofsky, a particular person.  But who isn’t allowed to write?  There’s no editorial board here to tell a blawger that a subject has been beaten to death and he’s not allowed to speak his mind. Each blawger decides for himself whether to jump in or not. We don’t censor each other, and if we tried, we would likely get our heads ripped off for it.

For blawgers who write anything remotely controversial, we can never anticipate whether the reaction will be positive, negative or snoring.  We take our chances every time we hit the publish button, and afterward we take our punches if that’s how it comes out.  We don’t cry about it, complain about it, or debate it. It is what we think, and if other disapprove, we shrug it off or get out of the game.

What we have neither right nor call to do is be disingenuous about our writing, “shuck and jive” our way around our deceptions and expect the blawgosphere to cut us a break.  Sometimes we feel muzzled because we deserve to feel that way, because what we’ve written is dishonest and we’ve been called out.  But we weren’t muzzled at all. We wrote what we wrote, and we had our way.  That more people, maybe everyone, thought poorly of the speech isn’t a flaw of the system, but a feature.  That’s how bad ideas are killed.  That’s how integrity is promoted and deception is thwarted.

And if you can’t stand the challenge, the scrutiny, the disapproval, then you have no business going on the internet and telling the world what you think.  We all have a right to speak. We all have our personal sensibility.  But we have no right to demand that everyone else enjoy our speech or share our sensibility.  If you can’t accept this, you do not belong in the blawgosphere.

It’s not that the Eric Holder had an epiphany, discovering that he’s a Democratic Attorney General and that the people who elected his boss had an interest in the Department of Justice supporting adherence to the Bill of Rights.  Then again, the cause may not be entirely lost.

Via the Baltimore Sun :

The U.S. Department of Justice’s Civil Rights Division has urged a federal court to side with a Howard County man in a lawsuit over his cellphone being seized by Baltimore police at the Preakness Stakes after he filmed officers making an arrest.

The federal attorneys say the lawsuit “presents constitutional questions of great moment in this digital age.” They asked U.S. District Judge Benson Everett Legg to rule that citizens have a right to record police officers and that officers who seize and destroy recordings without a warrant or due process are violating the Fourth and 14th amendments.

There isn’t enough money.  There are plenty of people who require a free lawyer, as they just keep arresting people without asking their net worth, but then they have to be given that free lawyer.  And that takes money. And there isn’t enough

In Orleans Parish, Chief Public Defender Derwyn Bunton came up about $2 million short, out of budget of $9,500,000.  He just didn’t get the money he needed because somebody decided not to waste it on defendants spend it on a constitutional mandate.  So poof, it’s gone.

Some might think whoever decided not to hand over the money to be in the wrong.  Some might blame Bunton.  Via NOLO.com :

A new austerity plan at the Orleans Parish public defender’s office has started to make waves, including one that lapped into a courtroom Tuesday on the eve of a death penalty trial. The plan, to cut off all payments to private lawyers hired by the office, drew a biting response from Criminal District Judge Lynda Van Davis, who upbraided Derwyn Bunton, the chief public defender.

Bunton had taken the witness stand to explain his move to halt payments for private lawyers who work death penalty cases and represent clients who have a conflict with the office.

After grilling Bunton, Davis accused him of misappropriating funds budgeted for capital cases.

“It sounds to me like you spent the money for [capital defense] on something else,” the judge said. “That’s the first (cut) you start with, is the people who face the toughest punishment in the state of Louisiana?”

Who, Judge?  Who deserves to get screwed?  Which defendant is unworthy of representation. Somebody has to get left behind, so which one do you choose?

The fact that the courts would be hard pressed to try a defendant, convict him and impose death if he’s not represented seems to suggest that Bunton’s choice was perfect.  If there’s no money for capital defense, there can’t be any capital punishment. 

And if you want to put people to death, because it would just break your heart not to execute somebody, then put up the money. 

Regardless of whether your choice would have been the same as Bunton’s, it doesn’t resolve the question of why Bunton should have been forced to decide where to allocate funds at all.  Why is it his problem of who gets paid, who gets a lawyer, who gets burned?  If the cops want to arrest, the District Attorney wants to prosecute and the judges want to sentence to death, they create the need for financing.  Hey, death cases are expensive.  You don’t want to pay the money? Don’t seek the death penalty. Problem solved.

But Judge Davis accused Bunton of misappropriating funds for capital cases.  Did he put the money in his pocket?  Did he rent out the bowling alley for a party?  No such allegation as far as I can see.  He used his funding to defendant people accused of crimes.  There is no rationale that justifies calling that misappropriation.  It’s allocation, and when somebody short changes you on a scarce resource such as funding, you’ve got no choice but to allocate.

Judge Davis’ concern is certainly understandable.  So too is the concern of lawyers who were working the death cases, thinking they would get paid whatever crumbs are given to those who do some of the most difficult work in the courthouse.  They should get paid, Well paid.

But to suggest that it’s Bunton who is stiffing the lawyers, holding up the death trials, is to focus on the low-hanging fruit.  What of the $2 million missing from his budget?  What of the people who are required to fund the defense of the people they want to put to death?  These are the fingers that clasp the purse strings so tightly that nothing can get done. 

Every defendant charged with a crime is entitled to indigent defense if he cannot afford a lawyer.  Sure, this drains the taxpayer.  Sure, taxes are down and people aren’t inclined to pony up any more. But this is a societal problem, not misappropriation by the public defender.  Scream and yell about it all you want, but put the real butts into the witness chair and find out where the money went. 

Leave Derwyn Bunton out of it. He’s trying to make use of what he’s got. If it’s not enough to satisfy the demands of the Constitution, go to the people who can fix the problem. Don’t blame Bunton.

H/T Aussie Tim Farhill

When Associate Justice Antonin Scalia  asked the question at oral argument, hearts filled with hope. Well, mine anyway.

Why is unreliable eyewitness identification any different from unreliable anything else?

                — Associate Justice Antonin Scalia, at oral argument in Perry v. New Hampshire,

Yet again, Justice Scalia says what needs to be said, clearly and decisively.  Why indeed?  Of the many burdens placed on judges in their role as gatekeeper of evidence at trial, one of the most critical is the preclusion of unreliable testimony.  And of all unreliable evidence, none is more dangerous than eyewitness testimony.

This Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury,and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial.

Our cases thus establish a clear rule: The admission at trial of out-of-court eyewitness identifications derived from impermissibly suggestive circumstances that pose a very substantial likelihood of misidentification violates due process.

The Court today announces that that rule does not even “com[e] into play” unless the suggestive circumstances are improperly “police-arranged.” It’s different. 

In the early days of my career as a lawyer, I spent a lot of time in the 34 Precinct.  The cops had a curious relationship with the residents, where everyone was a perp. Eventually.  Things have quieted down quite a bit since then, after the crack days of cold bodies appearing in the park every morning, but it apparently hasn’t done much to change the attitude.

Via  Jim Dwyer at the Times, a Christmas tourist, Aaron Vansintjan, from Belgium by way of McGill University in Montreal, wanted only to meet his friends at the Cloisters, a museum of medieval art in Fort Tryon Park, at 190th Street.  Silly tourists.

The day being fine, he decided to scramble up. He carried a Macy’s shopping bag with two white shirts he had just bought, and two books from his school’s library. He was also listening to music. Near the street, he reached a terraced area, and paused.

“I was catching my breath for about 15 seconds,” he said. “Someone ran at me with a gun drawn, screamed at me to get down to the ground, pushed me onto my knees, and then put my face in the ground.”

He was led up the stairs in handcuffs by a plainclothes police officer and others in uniform. “I was under the impression that it was very illegal to walk up the hill,” Mr. Vansintjan said.

That’s the funny thing about not having the slightest clue why a guy is pointing a gun at you. The cops start with the assumption that you’re guilty, and therefore know exactly why they nabbed you. This bit of confusion can, and often does, lead to a problematic reaction.  Would the New York City police actually shoot to kill a Belgian tourist for climbing on rocks if he’s not compliant?  You never know.

As he was being held on the street, he said, “they told me someone had reported the theft of a Macy’s bag.” He protested that he had been shopping and that he was on his way to the Cloisters. Moreover, he said, his hands were turning purple from the tight squeeze of the handcuffs. They were loosened slightly. The officers suggested that Mr. Vansintjan, who is 5 feet 10 and weighs 130 pounds, had resisted arrest, he said.

The friends waiting for him were astonished to see Mr. Vansintjan surrounded by eight police officers. “They came over and the police told them to get back,” he said. “I said, ‘Those are my friends.’ An officer asked me, ‘Oh, are they your accomplices?’ I said, ‘No, we were going to the museum.’ 

Just another day in the 34, where friends become accomplices and shopping at Macy’s carries risks.

The man who reported the break-in was driven past Mr. Vansintjan and identified him as a burglar. At the station house, Mr. Vansintjan was unshackled and taken to an interrogation room. “A detective asked me to tell my side of things, and said, ‘If you are honest, we will be easier on you’,” Mr. Vansintjan said. He said he was not told of his right to a lawyer, or to remain silent.

The criminal apprehended and the case almost solved. The only left to do was get the confession. Of course, at the Huntley hearing, the detective would pull out his Miranda card and explain calmly how he read the tourist his rights, one at a time, after which the tourist acknowledged he understood them and confessed voluntarily. Because that’s what they do in the 34.

“After I told him what had happened, the detective said, ‘You know, what the other guy is saying doesn’t match up with your story,’ ” Mr. Vansintjan said, an old ruse used to trick people into admissions. “I said, ‘I don’t know what you’re talking about.’ ”

The poor tourist, however, couldn’t confess because he didn’t have the slightest clue what they were talking about. He didn’t know of the alleged break-in, or the show-up identification. He didn’t know of any crime aside from climbing rocks.  The old ruse doesn’t work when the perp has no clue what it’s all about.

While this was going on, the man who reported the burglary told the police that there had been no break-in, and that people were out to get him, according to [police spokesman, Paul J.] Browne. He was taken to a psychiatric hospital, Mr. Browne said.

Oops. There was no crime. Just another psycho in the 34.

Just before he was released the evening of Dec. 22, Mr. Vansintjan said, a sergeant told him that an antique pocketknife he had been carrying “was a problem.”

“I knew it was legal,” the student said.

“He said they were going to give me a break, so it wouldn’t go on my record, and let me go.”

And that’s life in the 34.  They seized a tourist who did nothing wrong (provided you forgive him climbing on rocks) for a crime that never happened.  And being good guys, the cops gave him a break and let him go.  No harm, no foul. No record.

And there’s a cop walking around the 34 carrying a cool antique pocketknife he took off a perp.

It’s been almost 30 years since the first time I walked around the 34 Precinct, and it’s comforting to know that nothing has changed.  Not even for the tourists.

It was discovered purely by chance.  There was a note in the Rakofsky court file  rejecting his attempt to get an Order to Show Cause signed, with the lone remark, “papers are incomprehensible.”  Not exactly a good thing for a person fighting allegations of incompetence.

And then, quietly nestled in the file, was another paper, entitled stipulation, between Joseph Rakofsky and a defendant named Lori Palmieri from Tampa, Florida.  It had been in the file since last July, but no one noticed. No one knew who Lori Palmieri was, and her presence or absence didn’t make anyone’s radar.  But  there was the stip alerting all that she the action against her was discontinued pursuant to a “confidential agreement.”  She settled. 

What Lori Palmieri wrote about Joseph Rakofsky is lost to the ages.  No one seems to remember anything about it, or her, except Rakofsky, and now it’s gone. In its place is new post, clearly part of her settlement, in which she humiliates herself.  Worse still, as she exposed her shame to the public, no one noticed.  The post is dated July 1, 2011, and not until the stip was accidentally found in the file did anyone bother to look.  It’s like Lori Palmieri never existed.

The first inclination is to castigate Palmieri for her cowardice and ignorance.  She could have done nothing and won, since Rakofsky couldn’t get jurisdiction over her no matter what. But more importantly, there was no cause of action, no valid claim. She’s a lawyer, and there’s no excuse for her not knowing. And still she collapsed in a demonstration of spectacular cowardice and ignorance.

Last month, I posted about New Jersey lawyer, Joseph Rakofsky regarding his representation of a criminal client named Dontrell Deaner in a murder trial in Washington, DC after The Washington Post’s article. Mr. Rakofsky is unhappy about the content of the post and believed it defamed him. Thus, I am included in the Supreme Court of the State of New York civil action of Rakofsky v. The Washington Post Company, et al. As a fellow criminal defense practitioner, I regret this misfortune that has befallen Mr. Rakofsky. To the extent that I have in some way perpetuated others’ comments on his professionalism, I wish that had not occurred.

Palmieri “perpetuated” nothing, as no one knew she existed except Rakofsky. Until now, when the only thing known about her is that she is pathetic.

But after looking at Palmieri’s website, her disgrace begins to make sense.  It stinks of desperation, using every gimmick the marketers promote.  From the creepy video to the badges near her head.  She has a flawg attached to it, which includes insipid blurbs. She was no blawger. She couldn’t have cared less about free speech or, for that matter, what Joseph Rakofsky did to poor Dontrell Deaner.  She was the caboose, jumping on what she thought was a train that might gain her a fee after thinking people had done their work.  She tagged along, hoping someone would notice.  The only person who did was Rakofsky.

Standing up to Rakofsky wouldn’t get her a client or make her a dime, so why bother?  Cut your losses and run, get out of this. So the price was to humiliate herself publicly by writing such utter stupidity?  Who cares?  Not Lori Palmieri, who had no real horse in the race.

It is easy to pick up these articles and run with them because it makes for interesting posts. Nevertheless, we should all endeavor to look beyond the content that newspapers print to the people behind them. There is a great deal more to know about Mr. Rakofsky than what was written in my blog. No doubt, his course of conduct going forward will give better insight into the kind of man and lawyer he is. I, and perhaps many of the other bloggers who cited to the Washington Post’s article, did not have the benefit of the entire story. We should have done better.

Palmieri speaks for no one but herself.  Others knew exactly what they were writing and why.  Others were disinclined to disgrace themselves by saying whatever it took to beg out of the case.  Others did better. Palmieri did not.

There are a few messages here, but the one that stands out after the amazement at Palmieri’s cowardice and ignorance is the abject failure of the all the marketing gimmicks, scams and schemes, to make anyone notice Palmieri existed.  Here she was, humiliated in all her glory, and no one noticed. No one cared. She did everything the marketers said a lawyer should do to become a thought leader, a game changer, a player on the internet. And she was still a nobody.  The only thing her shamelessness brought her was a lawsuit, and subsequent humiliation.  It doesn’t get more pathetic.

When this first became known, announced by  Eric Turkewitz after he obtained the judge’s terse reaction to Rakofsky’s latest papers, rejected as “incomprehensible,” it was astounding that someone who claimed to be a criminal defense lawyer would be so weak, so ignorant, such a coward.  But after reflection, the anger and amazement wore off.  Lori Palmieri may be all those things, but what she mostly reflects is a sad, pathetic lawyer who was so desperate for a case that public humiliation meant nothing to her.

And if Turk hadn’t accidentally stumbled across the stipulation, the monument to Palmieri’s disgrace, no one would have ever known she existed.  No string of marketers’ adjectives can cover the stench of this massive failure.  It’s not just the odor of cowardice and ignorance, but the stink of pathetic humiliation.

Update:  After writing this post, I happened upon a comment left by “Lori D. Palmieri, Tampa Criminal Attorney,” dated May 25th, left at a post by  Jeff Gamso on Rakofsky.

It just goes to show you how important it is to do your research when hiring a criminal defense attorney! In light of being sued by Rakofsky for an earlier blog post on this same topic, I decided to follow up with another addressing the lessons learned – mainly focusing on asking questions about experience, certifications, reputation etc. Rakofsky shouldn’t have accepted this case, but to eliminate this from ever happening to you – we should all do our homework!

The funny thing about irony is how often it bites one in the butt.