Chicken Little was wrong. It was just an acorn, and so we ridicule those who appear to strike an hysterical tone about the end of times. The sky isn’t falling. The sky could never fall. How ridiculous to run around yelling “the sky is falling.” Yet every once in a while, very rarely but every once in a while, something happens that very well bring the sky down. Now may be such a time.
Unlike the more curious marketing names attached to legislation designed to convince the public that a law does the opposite of what its text says, or a law honors some bizarrely unusual yet horrible death of a child by criminalizing quasi-related routine conduct, this bill carries a pedestrian title, the National Defense Authorization Act for Fiscal Year 2012 (S.1867). Nothing scary at all. Just housekeeping stuff.
Some senators think that indefinite detention without due process of Americans arrested in America was allowed before the passage of the NDAA (and that’s just their interpretation of the law that they allow us to know about).
Do you trust the government with such power? You shouldn’t.
Under Subtitle D, which hardly sounds threatening, you will find:
The powers given by Congress to the Executive Branch are both shocking and completely understandable at the same time. As terrorism replaced communism as our national nemesis, we’ve embraced our government’s measures of protection. We are Americans, and it is fundamental to our belief system that our government was conceived so that it would serve the People in perpetuity. From our earliest days in school, platitudes are drilled into our heads that make us secure in our belief that we are Exceptional. We, alone amongst regimes, systems and economies, are Free, and nothing can ever change that.
You might think, it could never happen here. Why? Once the legislative branch has given the executive branch the power, what’s to stop the executive from using it?
We like to pretend that we’re better than that, that our form of government makes us free, but our elected representatives have, by and large, done fuck all to preserve the very freedoms that made America.
Over time, the word “terrorism” grew an appendage, the word “homegrown.” In the past decade, a few men have been accused of being terrorists, of desiring to do what terrorists desire to do. We’ve been told how fortunate we are that the government found them, infiltrated their world, provided them with the wherewithal to go from irrational oddball to manifest killer but for the lack of a bomb, and then sprung the trap. We are saved.
Senator Carl Levin, a liberal Democrat from Michigan, chairs the Senate Armed Services Committee. He sponsored this bill. There’s neither basis nor need to attribute any malevolent intent to Sen. Levin. It’s acceptable to believe that he means well, intends only to protect us from the threat of terrorism. It’s safe to assume that Sen. Levin wants to do whatever he can to make sure that no one is ever harmed by a terrorist attack. He believes that our government would never use its power improperly. He believes in America.
The bill authorizes the President to declare someone a terrorist. It authorizes the military to take custody of the terrorist, even if he’s on American soil. That’s because the terrorists have “brought the battlefield to us.” This is a fine rhetorical flourish of the sort that stirs American souls. How dare they bring the battlefield to our shores, to threaten our homes and families. We are Americans, and we won’t let that happen without a fight.
The Posse Comitatus Act of 1878 prohibited the government from using the military to enforce law on our soil. The military was to fight wars abroad. American law enforcement was to deal with wrongs committed at home. But that was during Reconstruction, many enemies ago. You will no doubt remember that 9/11 changed everything, as we’ve been told with regularity.
Once seized, terrorists can be held indefinitely without trial. They are not mere violators of our laws, but terrorists. They are our enemy in a war. Had 9/11 not occurred, we might have been hard-pressed to believe that the word “war” could be used to describe these actions, not be a sovereign or uniformed cadre of warriors, but fanatics prepared to blow themselves up, to blow their children up, in order to blow us up. They shattered our sense of invincibility by taking down the Twin Towers, making us feel less Exceptional. But we are Americans, and we could not let that happen.
In the ten years that followed, many taboos have been broken, with the grudging approval of those upon whose judgment we trust. Step by step, we hear of their falling, but understand that it’s just a small step, made necessary by our enemy’s insidious genius and heartless tenacity. We bow our heads, but realize that we must give a little bit more to be safe. Freedom isnt free, and we surrender a bit of our convenience to the greater good of winning the war and protecting our fellow Americans.
This step, giving our President the power to declare a person a terrorist, and thereby remove him from all the protections and freedoms that we hold sacred, is a small one. It’s really just a variation on a theme that has been happening over the past ten years, as we’ve come to accept that a person who wants to blow up a plane is entirely different than a sad, sick person who takes a gun and shoots many students, or a workplace filled with people. That’s because he’s a terrorist, and we know this because the government says so.
This law will enable the government to place the label of terrorist on any person of its choosing and, by doing so, authorize the person’s effective disappearance from our world. As long as we trust the President, whether this one or another one who may someday take office, to never be wrong, to never act for a purpose other than our protection from terrorist threat, to never abuse the authority or be guided by an excess of caution or accept the bad advice of another, then no law can undermine our American freedoms.
We are exceptional. Our government is the best ever created. It can never break through the wall created by the founding fathers to assure our freedoms in perpetuity. Not unless we, the People, allow it.
It’s overwhelming. One story after another, interesting and informative. Well, interesting. But the stream of stories under the generic heading of criminal justice has been a raging torrent of late, making the head of a poor blawger like me spin.
My staff of crack journalists and investigators is somewhat smaller than the Times’, as is my advertising and subscription revenues. Still, I’ve received a steady flow of emails telling me of great articles about which I should write. Hey, I get the Times. This nice little boy Timmy leaves it for me at the end of the driveway every morning. Okay, his name isn’t really Timmy, and he’s not a little boy. And he misses at least one day a week, but still, I subscribe.
The problem is that I can’t keep up. She may be gray, but she’s clearly more spritely than me. And even if I could, would anybody really want me posting ten times a day? I used to do that on occasion, and I remember the hate mail. But this isn’t to say I don’t appreciate your heads up, or that the Times’ stuff isn’t fascinating and worth some thought.
So instead of trying to keep up with the old gal, here’s a quick stroll through some of the leading stories from last week’s paper, after which I can use it to wrap fish.
Dog Stink
Megan Winfrey smelled good to a dog, as did her father and brother. Unfortunately, her father and brother also smelled good to judges, who tossed out their convictions for murder, Megan, not so much.
Ms. Winfrey; her brother, Richard Winfrey Jr.; and their father were charged with conspiring to murder and rob Murray Burr, a longtime custodial worker at the high school the Winfreys attended.
Both the father and the son are free after courts decided the state’s key evidence — obtained in scent lineups — was not enough to establish their guilt. Ms. Winfrey remains in a Gatesville prison despite the fact that her conviction hinged largely on the same dog-sniffing evidence.
Despite the fact that people who think have long ridiculed dog scent evidence as being shockingly unreliable, and subject to handler influence, it remains a viable part of our criminal justice mythology. Whether it’s because dogs are cute and friendly, or judges are dumber than dirt when it comes to assessing the scientific value of things used to convict people, doesn’t matter to Megan as she still sits in her cell.
“We conclude that scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction,” Justice Barbara Hervey wrote in the court’s opinion granting the acquittal. Mr. Winfrey Sr. left prison in October 2010.
And yet Megan sits, in the third year of her life sentence, awaiting for the Texas Court of Criminal Appeals to make a photocopy of her Dad’s opinion.
The War on Crime Needs an Army
On the one hand, it could be that the American public really likes the style of cargo pants and Hummers. Maybe, deep in our hearts, we all want to be G.I Joe. Or maybe the police like it even more than the rest of us.
Police forces undeniably share a soldier’s ethos, no matter the size of the city, town or jurisdiction: officers carry deadly weapons and wear uniforms with patches denoting rank. They salute one another and pay homage to a “Yes, sir,” “No, sir,” hierarchical culture.
But beyond such symbolic and formal similarities, American law and tradition have tried to draw a clear line between police and military forces. To cast the roles of the two too closely, those in and out of law enforcement say, is to mistake the mission of each. Soldiers, after all, go to war to destroy, and kill the enemy. The police, who are supposed to maintain the peace, “are the citizens, and the citizens are the police,” according to Chief Walter A. McNeil of Quincy, Fla., the president of the International Association of Chiefs of Police, citing the words of Sir Robert Peel, the father of modern-day policing.
Does this mean they can’t ride around in tanks with “special weapons?” Come on, how cool is that, especially when you can let your friends drive the tank for kicks. Or maybe they do it for our sakes, to protect us from the terrorists?
What seems clear is that the terrorist attacks of Sept. 11, and the federal Homeland Security dollars that flowed to police forces in response to them, have further encouraged police forces to embrace paramilitary tactics like those that first emerged in the decades-long “war on drugs.”
Both wars — first on drugs, then terror — have lent police forces across the country justification to acquire the latest technology, equipment and tactical training for newly created specialized units.
Somehow, none of this seemed to register on the public’s radar. Not that it wasn’t happening, but that it didn’t matter. As Matt Brown noted, jurors don’t seem to distinguish the difference between cops and soldiers, lumping both in the same boat. Since everybody loves soldiers, who are nice farm boys from the midwest, do us no harm and risk their lives to protect us, their innocence and bravery washes over cops who use their tanks to run down chickens.
Why does this all suddenly matter to the Gray Lady, not to mention the rest of us? Dan Filler offers an answer :
But here’s the rub.
As police culture has shifted, the police seem to have forgotten — or perhaps never realized — that these aggressive policies are really only politically sustainable when they’re employed against disempowered communities.
Airport profiling is OK for Muslims. Random street searches are OK for African-Americans. And seat-of-the-pants immigration detentions are fine for Mexicans. But you can’t engage in invasive stops, searches and unsubstantiated detentions of, and attacks on, white folks without other white people getting agitated. What’s good for the goose has never been good for the gander.
Dan argues that it took the Occupy Davis images to make a dent in the consciousness of us fine, law-abiding folks, watching our children getting pepper sprayed by paramilitary Lt. Pike. In case you’re not getting the point, you can have your cool cop armor, from body to vehicle, as long as you don’t use it on white college kids.
Just Switch the Heads
For those of us who remember the good old crack days, when stealing drug money from a dealer was considered an unwise business move, and there was no shortage of seriously drug-addled minds willing to do whatever it took for another fix, this story will bring back memories.
The man’s head had been cut off.
It was just after 8 a.m. on Dec. 10, 1987, on a Bedford-Stuyvesant block of Madison Street that was a teeming drug market, with dealers selling heroin on the other side of the schoolyard fence. Addicts shuffled into so-called shooting galleries in nearby basements. The police arrived that morning and found a blood trail from the decapitated body to just that sort of basement across the street.
Back then, this wasn’t considered a high priority murder. The cops saw it as street justice, one less bad guy to worry about. Ah, good times. You see, the headless body belonged to a fellow who stole from a drug dealer, and that was considered poor drug etiquette. Something had to be done.
On Madison Street, the story of what had happened was taking shape. Mr. Emmanuel was a drug dealer selling large amounts of cocaine for his supplier. He had sent a girlfriend to pick up a kilogram from the supplier, and she was robbed of the drugs before she could bring them to Mr. Emmanuel. The supplier then held the woman as ransom. You can have her back, the dealer told Mr. Emmanuel, if you pay for the missing drugs or bring the head of whoever stole them.
Mr. Emmanuel had no idea who stole the drugs. So he drove to the Bronx and found a homeless man and grabbed him or lured him into the car, then brought him to that basement.
It was money or a head, and since Emmanuel had neither to offer, any head would do. Now a cold case, the cops finally decided that Emmanuel, “now gray and 53,” should pay. He copped a plea.
He was sentenced on Thursday in Brooklyn State Supreme Court. For sawing off a stranger’s head, he will serve two to six years behind bars.
While everybody is busy patting themselves on the back for a job well done, only the victim’s brother, Michael Ross, wonders why this is sufficient for his brother’s head being cut off with a chainsaw for having the misfortune of having a head when a drug dealer needed one, and any one would do.
Thinking Wrong Thoughts
It’s not just a job, but a duty. A duty to adopt the mindless “esprit de corps” of hating who and what you’re told to hate, and that includes illegal immigrants and anybody who smokes some weed. So Bryan Gonzalez learned, as did Joe Miller.
Stationed in Deming, N.M., Mr. Gonzalez was in his green-and-white Border Patrol vehicle just a few feet from the international boundary when he pulled up next to a fellow agent to chat about the frustrations of the job. If marijuana were legalized, Mr. Gonzalez acknowledges saying, the drug-related violence across the border in Mexico would cease. He then brought up an organization called Law Enforcement Against Prohibition that favors ending the war on drugs.
Clearly he can’t be trusted, with his misguided views and divided loyalties.
In Arizona, Joe Miller, a probation officer in Mohave County, near the California border, filed suit last month in Federal District Court after he was dismissed for adding his name to a letter by Law Enforcement Against Prohibition, which is based in Medford, Mass., and known as LEAP, expressing support for the decriminalization of marijuana.
Supporting LEAP is tantamount to giving aid and comfort to the enemy. For their efforts, they got the ax. Not, according to their respective agencies, because they expressed dissent. No, that would be wrong.
The Justice Department, which is defending the Border Patrol, has sought to have the case thrown out. Mr. Gonzalez lost a discrimination complaint filed with the Equal Employment Opportunity Commission, which sided with his supervisors’ view that they had lost trust that he would uphold the law.
After all, how can we trust a guy with a gun and shield who doesn’t share the proper values?
After an investigation, a termination letter arrived that said Mr. Gonzalez held “personal views that were contrary to core characteristics of Border Patrol Agents, which are patriotism, dedication and esprit de corps.”
On the other hand, who better to know that the War on Drugs is perhaps the worst law enforcement failure of the past century? Maybe Bryan Gonzalez’s views reflect exactly those core characteristics of patriotism, dedication and esprit de corps. Just not the way the Department of Justice had in mind.
And yes, I know there were other articles in the New York Times that some of you think I should write about, but don’t you think this post is long enough already?
While not quite TSA level abusers, the Recording Industry Association of America stands tall among private trade associations for having been handed tin shields by Congress to play music police, beating up on nasty boys and girls across the nation. Not impressed? Has Congress given you vast powers to play private cop lately?
Lately, we haven’t heard of any egregious sucking the tears of crying children, while copyright schemer Righthaven, trolling the interwebz in search of people using indefinite pronouns to which it claimed ownership, has turned the RIAA’s righteous witch hunt into a travesty.
Righthaven, you may recall, got slammed with legal fees owed to Marc Randazza, and when it failed to pony up for a bond to stay execution, the cavalry was called in to seize its assets. If you happen to notice the excessive use of adjectives at The Legal Satyricon, now you know why.
Who was this upstart, this troll without so much as a tin badge from Congress, making a mockery of fair use litigation, the RIAA demanded to know? Aarrgghh. They’re going to screw it all up, and now they’re so broke they can’t afford a mocha frappucino. This will never do, so into the breach rides the Saviors of the Song to defend the right to suck blood from babies on the internet, as Congress meant them to do.
A demure request was sent off to Randazza from an unassuming young lawyer out of the Washington, Matthew Williams, who honed his skills editing the 2006 American University gender journal, where nary a stray masculine word appeared. In dulcet tones, he politely inquired whether Randazza would have any problem if his client, the RIAA, just happened to slide some papers under the appellate court’s door as a friend of the court.
Not a partisan amicus, mind you. No, no. Nothing so aggressive. Just a neutral amicus. You know, friend to all, just the voice of fairness, of justice.
You see, the RIAA couldn’t care less whether Randazza bankrupted Righthaven and sucked the marrow from its bones. Good riddance, interloper. But the crushing decision, where the court not only held Righthaven to have no standing, but held the use of its false-claimed copyright to be fair. “Fair use,” two words that sound like fingernails on a chalkboard to the RIAA, like curses of the harshest tone. Oh no, something so important cannot be left to a troll like Righthaven to screw up. And so the neutral RIAA has come to clean up the mess, let Randazza get his money but undo the damage left in Righthaven’s wake.
Via Carolyn Elefant, who didn’t appear ready to jump, the subtly-named Shit Law Jobs posted an interesting offer:
Law Firm with multiple websites needs an articulate person with strong writing skills to help with high volume blog entries for each of the Firm’s websites. Goal is to reach 700 – 1000 blog entries by the end of December working part time Tuesdays and Thursdays 9am – 5pm. If this goal is reached or exceeded work hours will be increased based on accomplishment. Pay scale is $8.50 per hour. Writing samples will be necessary to interview for this job. If you do not have your own writing samples, please be prapared to bring sample blog entry to interview for one of the following topics: (1) Help With Warrants in Dallas (2) How Can a Traffic Ticket Attorney Help You (3) Caught Speeding in Dallas? Know Your Rights.
Carolyn thought this advertisement reflected a lack of appreciation of the value of blogging. She can be so negative at times. Not only does this Dallas law firm put its money where its SEO is, but it’s contributing to the economic well-being of both the nation and unemployed lawyers, who can now earn more than minimum wage without ever getting off the couch in the basement. How cool is that?
Of course, the firm seems to have some concrete notions of the type of fodder it wants.
(1) Help With Warrants in Dallas (2) How Can a Traffic Ticket Attorney Help You (3) Caught Speeding in Dallas? Know Your Rights.
I get the sense this might be a firm working the criminal defense side of the street. Could it be possible that they really are trying to gain a cynical advantage over others by paying bottom-dollar for minimally acceptable content that would give it some SEO advantage on Google, create the appearance of being “caring yet aggressive” and hop on the technology train rather than die?
Rather than show that this firm doesn’t sufficiently value blogging, it’s just the opposite: They fully appreciate that creating a blog, as the social media gurus constantly remind us, can be a great way of manufacturing the appearance of competence on the interwebz. They just lack the time or interest to actually gain competence, or create the content to fake it. And so, in their public-spirited fashion, they’ve thrown open the doors sufficiently to fund a full case of Cheetos.
What’s the problem? There could be a few, ranging from publishing crap that appears to come from lawyers in the blawgosphere that will make readers stupider for having stopped by. They could get business because they’ve successfully deceived people into thinking that these posts reflect the thoughtfulness and caring of someone at this law firm. They could further sully the already remarkably overburdened yet unappealing blawgosphere with garbage content that drives away people who seek information and knowledge, and instead find only self-promotional nonsense and crap.
But this isn’t blogging. It’s no more blogging that the self-aggrandizing pap Horace Hunter spread, while trying to share an umbrella with real blawgers. And look where that got him (and us).
This reflects the dilemma, what with so many voices screaming that you can manufacture yourself into an overnight expert on the internet if only you have no shame, the stink of desperation and can afford $8.50 an hour. Not too expensive to become a “thought leader,” right? Certainly a whole lot easier than actually knowing what you’re doing, honing your skills and writing something thoughtful on occasion. That can take work, and whose got the time for such frivolities when there’s money to be made?
Rather than dwell on the negative, it seems to me that it would be much more profitable to appreciate the positive of this Dallas criminal defense firm’s gracious offer: If you get the gig, there’s nothing to stop you from writing deep, interesting and thoughtful posts, provided you can crank out a thousand in a part-time month.
More importantly, as someone who has written a few posts myself, the return on investment for blogging isn’t exactly quantifiable for those of us who try to write something worth a few minutes of your time. Having a few thousand, plus, under my belt, I can say with absolute certainty that Max Kennerly is right :
Blogging is a pie eating contest in which the prize is: more pie.
If you’re looking for that hard marginal return, this isn’t the place to find it. Sure, you may get that warm, fuzzy feeling of a job well done, or the intangible reward of being asked by reporters to opine on matter they’re getting paid to write about, or the chance to speak for free to people who are forced to take CLEs even though they know more about the subject than you do, but the dirty little secret is that none of this necessarily translates into dollars. If it does, it’s maybe one in a thousand that will be worthwhile, and the net is a huge sink hole filled with pie.
I like pie, so it doesn’t bother me. But then, I’m not inclined to live in a make-believe world that if I keep plugging away, scribbling night and day in the hope that someone offers me the chance to buy my own plane ticket and show a cute powerpoint to sleeping lawyers, I’m gonna get rich, rich, rich!!!
As a public service, I’ve crunched the numbers. I’ve done the math. I’ve given deep thought to every benefit, every email, every voicemail, every twit. And I’ve determined that at $8.50 an hour for a thousand blog posts, this Dallas law firm is getting the raw end of the deal.
So if you’re sitting on the couch in your parents’ basement, praying that mom got more Cheetos when she went to the market and enjoying Zelda’s Skyward Sword, grab this great deal before someone else does. This is about as much money as anyone is going to make off the blawgosphere. Certainly more than I get.
In a remarkably strongly-worded decision, Judge A. Howard Matz of the Central District of California tosses FCPA convictions for misconduct.
In this Court’s experience, almost all of the prosecutors in the Office of the United States Attorney for this district consistently display admirable professionalism, integrity and fairness.
So it is with deep regret that this Court is compelled to find that the Government team allowed a key FBI agent to testify untruthfully before the grand jury, inserted material falsehoods into affidavits submitted to magistrate judges in support of applications for search warrants and seizure warrants, improperly reviewed e-mail communications between one Defendant and her lawyer, recklessly failed to comply with its discovery obligations, posed questions to certain witnesses in violation of the Court’s rulings, engaged in questionable behavior during closing argument and even made misrepresentations to the Court.”
While I’ve only managed to scratch the surface as yet due to time constraints, Judge Matz’s decision is fascinating, including a broad swathe of “inside baseball”-type stuff that rarely sees the light of day. This is the sort of stuff we all know, but nobody official will ever admit. Judge Matz does. For example,
Second, when a trial judge managing a large docket is required to devote a great deal of time and effort to a fast-moving case that requires numerous rulings, often the judge will miss the proverbial forest for the trees. That is what occurred here. This Court was confronted with so many motions challenging the Government’s conduct that it was difficult to step back and look into whether what was going on reflected not isolated acts but a pattern of invidious conduct. Although the Court did issue orders granting various of Defendants’ motions to suppress, motions to exclude evidence, motions to compel further discovery, motions for curative instructions, etc., it did not fully comprehend how the various pieces fit together. And fit together they do. The Government has acknowledged making many “mistakes,” as it characterizes them. “Many” indeed. So many in fact, and so varied, and occurring over so lengthy a period (between 2008 and 2011) that they add up to an unusual and extreme picture of a prosecution gone badly awry. To paraphrase what former Senator Everett Dirksen supposedly said, “a few mistakes here and a few mistakes there and pretty soon you’re talking misconduct.”
Oh baby. And this:
When faced with motions that allege governmental misconduct, most district judges are reluctant to find that the prosecutors’ actions were flagrant, willful or in bad faith.1 In this case, for example, the Court denied several previous motions to dismiss and permitted the prosecution to proceed over the heated objections of defense counsel because it was willing to accept the prosecutors’ assurances that their conduct was inadvertent and would not be repeated. The Court even said it was “not anxious to attribute a deliberate, intentional, and devious motive” to the Government.
1 For an example of a court’s reluctance to make those findings, see United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008). There, the apparently ambivalent district judge stated that “the government did not act intentionally” but also said that the government “did not . . . act [ ] . . . unintentionally.” The appellate court characterized this ruling as “somewhat confusing.” Id. at 1080 n.2.
When is the last time a federal judge conceded that prosecutors have to murder babies before any judge will hold them accountable for misconduct?
While I expect to return to this decision, and the underlying conduct, as soon as I can read through the papers, I would be remiss not to share this. Get out the popcorn, kick back and enjoy.
An age old question in the State of New York is who is really the most powerful guy around. For a long time, it was tacitly conceded that Bob Morgenthau had the juice. But Morgy’s gone now, and Cy Vance sits in his chair. Does that mean the Cy is now the most powerful guy? Does Cy Vance think he’s got the juice to extort the Supreme Court?
Apparently, Cy thinks so. From Jeffrey Fisher’s op-ed in the New York Times :
A friend-of-the-court brief by the Manhattan district attorney’s office pushes the state’s argument one step further, warning that a ruling in the defendant’s favor would prove so costly that it would “force prosecutors to forgo forensic DNA analysis” in future cases. Consequently, the brief continues, defendants in rape and murder cases “might well be prosecuted solely on the basis of eyewitness testimony,” which is notoriously unreliable and could lead to convictions of many “innocent individuals.”
You read that right. The District Attorney of New York County, Cyrus Vance, Jr., has conceded that every conviction ever obtained by that office on the basis of eyewitness testimony is notoriously unreliable. Now this is what I call a friend of the court.
The amicus brief was filed in Williams v. Illinois, on for argument before the Supremes next Tuesday. again challenging the Crawford rule that the prosecution has to produce the actual lab tech who produced the damning lab report rather than mailing it in. So what if there is a laundry list of things that go very, very wrong in forensic labs, from contamination to bias to outright lies. It costs money to produce witnesses, and the constitutional exception for things that cost money weighs heavy on the court.
It is far more efficient, these justices contend, to let analysts simply mail their reports to court. Having to appear at trials pulls them away from their labs, and only occasionally proves more revealing than their written testimony. Hence, these justices maintain, “scarce state resources” are better committed elsewhere.
But Cy isn’t just relying on the high-brow “waste of money” argument that has captured four of nine votes. Rather, he’s prepared to take the fight to its nadir.
But the assertion in the Manhattan district attorney’s brief reflects — in a particularly dramatic way — some prosecutors’ belief that they can bully the court into refusing to enforce a constitutional guarantee simply by arguing that such enforcement would be an administrative and financial burden.
You want us to test the DNA to get actual, viable evidence? Ha! Then you’re gonna have to give up live testimony. Take it or leave it, baby. From page 10 of the brief, here’s the actual language:
In the absence of DNA testing, defendants might well be prosecuted solely on the basis of eyewitness testimony, the reliability of which is often questioned. See United States v. Wade, 388 U.S. 218, 229 (1967)(“the infl uence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than another other single factor” (internal quotation and citation omitted))… No one concerned for innocent individuals suspected of serious crimes should prefer a world in which DNA testing is needlessly curtailed.
The financial piece of prosecution is always a concern for any governmental entity. They’ve got a budget and if they squander it on bells and whistles, like producing witnesses at trial, how will they ever afford new carts to wheel in the piles of files for quickie pleas?
As Fisher notes, Justice Scalia has called this argument a “bogeyman,” and has been the strongest voice on the Court when it comes to confrontation. I know, it pains you to have Nino as the voice of reason, but haters gonna hate. The fact remains that he’s been steadfast in his position that the constitutional mandate of confrontation isn’t trumped by cash and carry jurisprudence.
There’s nothing new here. In the 1963 case of Gideon v. Wainwright, Alabama and several other states filed a brief urging the court to refrain from interpreting the Sixth Amendment’s guarantee of the “assistance of counsel” to require states to provide lawyers to poor defendants accused of felonies. The brief said such a rule would impose on states “an unbearably onerous financial burden to pay the fees of attorneys.”
The court, of course, was not moved. States have adapted. And the Gideon case has become a cornerstone of American jurisprudence. It’s almost impossible now to imagine how a trial could be considered fair without that basic procedural guarantee.
Without question, it can be expensive to maintain a legal system that comports with some, if not most, of the Constitution’s commands. It would be far cheaper to rush the bums to prison so long as the cops say he’s guilty, or put on a trial without witnesses, cutting down significantly on all that lost forensic time and getting rid of all those annoying cross-examination questions. With a few tweaks here and there, we could make this system work without a hitch, provided no one gets too caught up with the old “convicting the innocent” saw.
But now that Cy’s put his cards on the table, it would be impolite not to play them. If it happens that the case against you consists of an eyewitness who takes the stand to identify the defendant as the perpetrator of a crime, no summation should fail to recall the District Attorney’s very thoughtful concession. At the very least, say it as an homage to the most powerful man in New York.
What happened to 17-year-old Vanessa Gibbs gives new meaning to fashionably late. Via Radley Balko :
Gibbs said she had no problem going through security at Jacksonville International Airport, but rather, when she headed home from Virginia.
“It’s my style, it’s camouflage, it has an old western gun on it,” Gibbs said.
Frankly, it’s not quite my style, but then again, there are very few 17-year-olds who seek my fashion advice.
Once again, in either a mindless excess of caution, or a sly fashion commentary, our dedicated and vigilant TSA found a reason to exist.
Gibbs said she was headed back home to Jacksonville from a holiday trip when an agent flagged her purse as a security risk.
“She was like, ‘This is a federal offense because it’s in the shape of a gun,'” Gibbs said. “I’m like, ‘But it’s a design on a purse. How is it a federal offense?'”
After agents figured out the gun was a fake, Gibbs said, TSA told her to check the bag or turn it over.
One can’t help but wonder how many agents were needed to figure out that the “gun was a fake.” What gave it away? How could they be sure? So many crucial questions.
The problem, according to the TSA, is that they believed it to be a “replica gun,” This is the Nancy Grace vision of criminality, “if it walks like a duck,” etc. Except the replica gun prohibition makes complete sense when one limits it to its definition, an object that in all respects appears to be the real thing, except it doesn’t operate. While it might be argued that this is a replica purse, it most assuredly isn’t a replica gun, an object that could reasonably be mistaken for a gun, capable of firing projectiles.
Can we blame the TSA for taking a closer look at Gibbs’ bag? Probably not, as it’s not a great stretch to imagine that some inventive terrorist might fashion a weapon that would appear to be a decoration on a women’s handbag that could be removed and, in fact, function. With a bit of ingenuity, almost any object could be created that looked benign but was capable of firing a projectile.
Of course, a thoughtful terrorist would be more likely to make the decoration appear to be something that would draw less attention, like a beautiful mermaid or a stately swan, rather than a gun. You know, something that might attract the admiration of TSA agents everywhere for its tastefulness, but not its deadliness, in a WalMart sort of way.
The TSA agents should have been fully capable of determining that the gun decoration on the side of Gibbs’ purse was neither capable of confusing anyone with a real weapon nor firing a projectile (vomit notwithstanding) in a matter of seconds. The absence of a hole in the barrel, a working trigger, or absolutely anything beneath its garish exterior, was a dead giveaway.
While the agents pondered this deeply disturbing purse, Gibbs missed her plan to Jacksonville, causing her waiting mother enormous concern.
By the time security wrapped up the inspection, the pregnant teen missed her flight, and Southwest Airlines sent her to Orlando instead, worrying her mother, who was already waiting for her to arrive at JIA.
“Oh, it’s terrifying. I was so upset,” said Tami Gibbs, the teen’s mom. “I was on the phone all the way to Orlando trying to figure out what was going on with her. It was terrifying. I don’t ever want to go through it again.”
So what if a mother finds herself standing alone as the passengers deplane and your pregnant child isn’t among them? So what if nobody has the slightest clue why your daughter doesn’t rush to the waiting bosom of her mother in a fashion forward sort of way? At least the rest of the passengers can rest assured that they weren’t subjected to a terrorist threat. Or a gun and camo purse.
There is a moral to this post, aside from the TSA’s perpetually mining new depths of absurdity.
A TSA official at JIA said it’s not that uncommon for passengers to wear something that could be considered a gun replica, but the official encourages everyone to check the prohibited items list, which can be found online or at the airport before going through security.
If the opportunity arises to purchase a haute couture bag with a decoration in the shape of, oh, a Molotov cocktail, get to the airport early. This is the price of fashion.
What sort of deep, ponderous, existential thought gets a lawprof’s juices flowing and his tenure committee all excited? Beats me. But it doesn’t concern crimlaw prof and Marquette dean Michael O’Hear, who readily acknowledges that his PrawfsBlawg post isn’t likely to make his fellow scholars rip off clothes and dance in the hallways.
At the risk of not being invited back, I’ll start with a post on harmless error — a terminally unsexy topic that nonetheless is much on my mind as I prepare to teach Post-Conviction Remedies next semester.
What makes this particularly noteworthy is its direct contrast to fellow Marquette lawprof David Papke, who penned the infamous words, “We don’t want law school to be lawyer-training school.” While I expect O’Hear to be joking about not being asked back, it’s hardly outside the realm of possibility after posting about such a “terminaly unsexy topic” as harmless error. So what if its at the heart of so many adverse rulings? Boring-o.
The post discusses the issue framed in Vasquez v. United States, the Supremes having granted cert because it squarely lays out, finally, a possible distinction between the two ways of framing the question of how to define harmless error. Given the unbearably nuanced rhetorical difference, it’s a rare case that would provide a solid basis for the Big Nine to decide between the two competing explanations.
Here are the (allegedly) competing standards. On the one hand, there is the standard from United States v. Chapman, 386 U.S. 16, 22 (1967): “[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” On the other, there is the “overwhelming evidence of guilt” standard from Schneble v. Florida, 405 U.S. 427, 430 (1972): “[i]n some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the [erroneously admitted evidence] is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the [evidence] was harmless error.”
While the Chapman and Schneble standards seem to be little more than opposite sides of the same coin, and in many instances offer a difference without a distinction, O’Hear tries to offer a reason why this matters:
Admittedly, it requires some effort to see a difference between the standards, but I think the formulations do indeed suggest two distinct ways of performing the analysis, at least at a conceptual level. The first standard invites an assessment of what actually happened at trial and what the jury’s actual views of the case were. The second standard invites more of an independent assessment by the appellate court of the strength of the government’s case.
In practice, though, I suspect that the distinction between the two standards collapses in most cases.
I suspect that O’Hear’s explanation of the distinction between the two standards is not a whole lot less obtuse than the standards themselves. The reason is that it comports with the differences between the majority and dissent in Vasquez, with the majority going with the “overwhelming evidence of guilt” standard and the dissent arguing that the improperly admitted evidence contributed to the conviction.
O’Hear provides a lengthy description of the case, and the respective rationales of the 7th Circuit panel, all of whom agreed that the trial judge erred in allowing rebuttal evidence of a telephone call between the defendant and his wife, discussing his lawyer’s advice to plead guilty as he would likely at trial. That must have stung a bit as the defense lawyer stood up for summation.
Pro-tip: Prison calls are recorded. When you talk about what the lawyer said, that too is recorded. It may be accurate. It may be completely false. It doesn’t matter. It’s recorded, and everybody is going to believe that it’s accurate. And now that you’ve talked about it, and they’ve recorded it, everybody knows about it.
After parsing the majority and dissent, with somewhat overly-detailed reliance on the particulars of the Vasquez case, O’Hear concludes:
Our normal approach is to handle jury verdicts in a highly formalistic way: a guilty verdict is a guilty verdict is a guilty verdict, and we rarely recognize the possibility that deliberations may fall short of the rational, conscientious ideal. (The prejudice test from Strickland is a good example, expressly removing from consideration the possibility of an idiosyncratic jury.) The “overwhelming evidence” test seems most consistent with this jurisprudential tradition; it avoids any exploration of the “sausage-making” that takes place in the jury room, and treats juries as so uniform and predictable in their operation that an appellate panel can readily stand in for a jury without any need to consider evidence of the inclinations of the actual jury. To be sure, though, as Vasquez points out, it is not easy to reconcile this approach with the Sixth Amendment guarantee of a jury trial.
That this analysis seems to uncritically accept the legal fiction that juries are rational, noting that we wouldn’t want to explore their “sausage-making” except that we do precisely that when we presume their minds to be cogent and their hearts to be pure.
I might explain the distinction in a somewhat different way, that we, lawyers, judges and even the occasional lawprof, argue at great length, and with enormous vigor, the rules by which trials happen in order to obtain half a chance for a defendant to fairly defend himself. The Schneble standard, overwhelming evidence, is best described as “no harm, no foul.” Ignore some or all of the rules developed to provide a fair trial and, well, so what? He’s guilty, and who cares if the court blew it, It reduces a trial to a post hoc farce, where the absence of fairness, or playing by the rules, is rendered meaningless in light of the only thing that matters: The defendant is guilty, guilty, guilty.
Many would say that’s cool with them. After all, the guilty guy loses and isn’t that what it’s all about? Except every trial lawyer knows that the rough and tumble fight in the trial court never seems to translate well to the sanitized world of the appellate court, where a few keystrokes turns the hotly contested trial into the slam dunk appeal.
Indeed, Vasquez is a great case for just that reason, Where the majority sees nothing to worry it’s head about, the dissent sees a case the government could well have lost, and was sufficiently troubling to make the government scramble to craft a rebuttal case because the defense case gave it angina. Had the dissent not explained this, Vasquez would have been just another slam dunk, overwhelming evidence of guilt, footnote of history decision. It’s the magic of appeals, that real issues at trial magically disappear when reduced to a paragraph in an appellate decision.
But the question for the purposes of this post isn’t whether O’Hear’s characterization (or mine) is a sound one, but that O’Hear risked the boredom and possible ridicule of his fellow scholars by writing about it at all. Sure, it’s got theory, doctrine and practical application. Sure, it may overcomplicate the question a bit, as one would expect of any academic. But he wrote it.
His post addresses one of the perpetually perplexing problems real lawyers, and their real clients, face daily. And he wrote it knowing that he’s not going to win sexiest lawprof of the year and become Mr. December on the lawprof hottie calendar. Yet he used a wee bit of his scholarship to write something useful, and for that, I’m grateful.
I haven’t always been kind to the ABA Journal. I’ve written mean words about some of its initiatives, and been particularly leery of its annual beauty pageant. Eventually, I tired of mentioning it, and didn’t. And yet, it’s back again.
On the one hand, it’s unfortunate in that it has brought out some of the most unsavory conduct ever seen in the blawgosphere. Otherwise legitimate blawgers have shown the glaring hole in their self-esteem that can only be filled by votes for greatness. It’s not enough that people “out there” actually spend some time reading what they write, but that they need the glory of being recognized, or worse still, winning. Validation is sad. The need for validation is ugly.
The nomination and selection process for the beauty pageant has always been suspect. While the powers behind the throne has tried to tune the process sufficiently to avoid the most flagrant abuses, it’s hardly much of a problem to find somebody to nominate you. And while the actual selection process is cloaked in mystique behind the massive mahogany doors of the ABA Journal Editorial suite, it bears noting that these aren’t necessarily lawyers honoring peers, but writers filling a list.
The point of this beauty pageant isn’t to make raise consciousness about blawgs, or even to honor anybody, but to get backlinks to the ABA Journal. How else would anybody know (or care) if it exists, given its cursory articles coming a day or two after everyone else in the blawgosphere has already written something about the subject in substantially greater depth. It’s not easy being relevant in these go-go days of split-second information and gnat-challenged attention.
Oh nuts, here I am again going on and on in the negative about it again. If there was a curmudgeon category (or, as some suggest, Miss Anthrope), I would be a shoo-in.
There is, as there often is, another side to this silliness. New names arise in the blawgosphere all the time, and there’s long been a sense that breaking into the mix is hard, maybe even impossible, now that blawgs have been around a while and firmly established themselves. The old guys have readers. The new guys hope for crumbs, a chance to show they’ve got something worth sharing.
Granted, most don’t have much to offer, usually because they’ve been lied to at the inception and consequently molded their blawg to meet their marketer’s schemes. It’s not that the lawyers are morons or incapable of holding a worthwhile conversation, but that they entered into it with the wrong attitude, being told that if they aren’t using social media to sell themselves (cheap), they’re wasting their time.
But a few, the rare birds who can put together that combination of substance and readability, often laced with humor and charm, To their surprise, they may find that the old guys welcome them, warmly, to the blawgosphere. Contrary to the marketing horde, the vitality and fun of the blawgosphere comes from the interaction, whether it’s blowing kisses or trading barbs, it makes us all more alive and vital to engage with each other.
Neither the marketing sorts nor the Happysphere want anything to do with others in the blawgosphere. For the former, they would die before including a link that might send a potential client to a competitor. For the latter, they fear their odd ideations won’t hold up to scrutiny by their peers, and are either too fragile or “special” to take the chance. Either way, they contribute nothing. Nothing to thought. Nothing to vitality. Nothing to the blawgosphere.
What this beauty pageant does, much as I hate to admit anything good about it, is raise consciousness about new blawgs, some of which are exceptionally good and worthy of lawyers’ time and attention. It’s a chance for a blawg to get onto the radar, to make a wave and let the blawgosphere know it’s here. And if you give the Blawg 100 a little extra credit, making the cut says a blawg has “arrived.” For the new blawger who is trying to break in, this heightened profile can be huge, and the quality of their content inures to everyone’s benefit.
When the omnipotent hand of the ABA Journal points at you, people notice. So what if it desperately needs a manicure? It’s the ABA, dammit, and it’s the grandest Dame we’ve got. (Notice how I’ve feminized the ABA Journal? How’s that for gender neutral?) As much as I’ve taken the time from my busy day in the past to let the ABA Journal know her baby is ugly, the inclusion of so many new blawgs on the list, some of which are terrific, is itself a worthwhile contribution to the blawgosphere, enough so as to warrant sending a few hits her way.
Now that I’ve been all mushy and nice here, maybe I’ll win something this year? Nah.
As a conservative is a liberal with a mortgage, a liberal is a conservative under indictment. Is an anarchist a libertarian after conviction? There are few things that can change a mind faster than enlightened self-interest, and few who can tell the story better, not to mention get access to major publications, than Conrad Black.
Given that’s got time to write, and an ax to grind, this post in the National Review has much to say, ripping the heart out of the American legal system. Like stats?
There are 48 million people in the United States with a “record,” many of them based on ancient DUIs or disorderly behavior decades ago at a fraternity party and other unstigmatizing offenses, but still a severe inconvenience to them when they travel abroad or their names are fed to almost any information system; and millions have had their lives effectively ruined. The U.S. has 5 percent of the world’s population, 25 percent of the world’s incarcerated people, and 50 percent of the world’s lawyers, who invoice almost 10 percent of U.S. GDP (around $1.4 trillion annually). In the mid-1970s, the U.S. had about 650,000 people in mental institutions; today, it has only 50,000. Prisoners cost $40,000 per year to detain, and some states can no longer afford it. The conditions of hundreds of thousands of prisoners are grossly and shamefully inhumane. (My own are not.)
Note that he excludes criminal defense lawyers from the mix, since most don’t invoice. I’m not sure that was his intention, though, as his experience may be different from others.
Not a stats-type guy? How about some constitutional scrutiny:
The Fifth, Sixth, and Eighth Amendment rights of assurance against capricious prosecution, due process, no seizure of property without due compensation, an impartial jury, access to counsel, prompt justice, and reasonable bail, don’t exist. The ubiquitous plea bargain is just the wholesale subornation or extortion of inculpatory perjury in exchange for immunities or reduced sentences (often with people who are threatened, although there is no evidence against them). Assets are routinely frozen on the basis of false affidavits in ex parte proceedings to deny defendants the ability to defend themselves. Those who do exercise their constitutional right to a defense receive three times as severe a sentence as those who plead guilty; 95 percent of cases are won by prosecutors, 90 percent of those without trial. The public defenders have no resources to conduct a serious defense and are usually just Judas goats of the prosecutors conducting the defendants to legal destruction.
It’s not entirely clear how he arrives at the “Judas goat” thing, since it’s unlikely he had any personal experience with public defenders, and third party stories are notoriously unreliable, particularly when colored by the fact of conviction. Nobody likes to be convicted, and it’s hardly uncommon for the convicted defendant to think his lawyer was less than exceptional.
And he’s not particularly kind to prosecutors either.
I have witnessed in the U.S. much sleazy prosecutorial conduct whose authors would have been disbarred in my native jurisdictions of Canada and Britain, and I cannot imagine how the U.S. justice system could have descended to such infamies. The only person in the Stevens outrage who seems to have had any redemptive qualities was Nicholas Marsh, one of the assistant prosecutors in the Stevens case, who committed suicide when the conduct of the prosecutors came to light. Depending on his exact apparent motives, and the sequel to his tragic action, he could play a role analogous to that of the Tunisian street vendor who set off the Arab spring by immolating himself.
There’s nothing like a good self-immolation to demonstrate redemption. Of course, it’s a one-trick pony, but it’s one hell of a trick. The upshot is that Black sees the system as morally bankrupt.
The moral soul of America is rotting away and the only defense an individual American has is numbers: The prosecutocracy cannot send more than 1 percent of the entire adult population to prison at any one time, if only for budgetary reasons.
The post is great reading (you’ve got to love “prosecutocracy”), something to love and hate for everyone, and mostly, a remarkable view into what becomes of an exceptionally erudite billionaire media mogul when he finds out the government isn’t really his friend. So you’ll know next time you defend one.
