Some people repose great faith in the jury verdict as a reflection of the will of the people.  Not me, but it’s not important what I think.  The system says a jury decides the facts, and gets to decide guilt or not, and that’s the way the game is played.  The jurors try their best and, for the most part, take their job seriously.  Beyond that, it’s a shot in the dark.

The McLennan County, Texas, District Attorney, however, has found a far deeper respect for the jury.  Via Grits for Breakfast, Abel Reyna argues that a court should refuse to allow post-conviction DNA testing “such testing because it overrides what a jury decided.”

Waco attorney Walter M. Reaves filed a motion asking for the testing Wednesday. It is part of an effort to exonerate Anthony Melendez, the only living defendant in the 1982 slayings of three teenagers.

Why now?

In the motion, Reaves argues the testing is warranted because DNA analysis was not available when Melendez was convicted. He pleaded guilty but has since recanted, claiming he falsely confessed because his lawyers told him he would almost certainly get the death penalty if he went to trial.

There’s the rub.  While Reyna wants to insulate the sanctity of the jury verdict from challenge, there was no jury verdict here. It was a plea, and likely good advice at the time since there was no affirmative evidence that would contradict the prosecution’s case.  A plea of convenience to keep Melendez from frying, hardly a novel idea and one that kept the defendant alive long enough for science to catch up to law.

But Reyna’s argument is disingenuous on two levels.  First, the putative duty of a prosecutor is to do justice, not to protect convictions at all costs. Sure, we can get a chuckle out of that, but when he puts his position in writing, he still has to pay lip service (pen service?) to his mandate.

Second, the inability to test DNA at the time makes this new evidence, and there’s no disrespect to the jury (even if there had been one) or the system’s interest in finality when new evidence comes to light. 

What makes  Walter Reaves’ job particularly hard is that the defendant pleaded guilty.  He stood there, faced the judge, and swore that he did it.  He later recanted, but plenty of people later recant.  No harm there.  

Melendez explains why he pleaded guilty, and pleas of convenience happen all the time, suggesting that the system is inherently goofy when it comes to testing guilt in the first place, as pleas are more a reflection of risk tolerance and an assessment of the chances of winning against the trial tax, the extra punishment imposed for fighting and losing.  In Melendez’s case, that punishment involved his death.  That’s some tax.

But it’s easy to claim, after the deal is cut, that one is innocent and copped to avoid death. We’ve learned as a result of DNA testing that it’s sometimes true.  We’ve also learned it isn’t always true, and there is no reason in the world why a guy, post conviction, wouldn’t want to give DNA testing a shot for whatever it’s worth.  Maybe, just maybe, something will go awry and the guilty guy walks out.  Maybe.

This argument has a point, as revisiting convictions can be an expense and burden on the system.  But so what?  It should be a burden to put, or keep, a person in prison (or off the executioner’s gurney) if he’s possibly innocent.

The argument is readily answered by the philosophical choice of preferring to let  “n” guilty men go free rather than convict an innocent.  Sure, it’s one of those platitudes that people respect more when carved in granite than played out in a courtroom, but it provides an answer to the question before the judge in Reaves’ motion.

On the other hand, Reyna’s argument, that post-conviction DNA testing “overrides” a jury verdict is just ridiculous.  Respect for the verdict of a jury, another platitude appreciated better when the verdict happens to go your way, has nothing to do with the existence of evidence now that was unavailable before. 

What this argument fails to show is respect for the intelligence of the judge and voters in McLennan County, Texas.  Respect the verdict, even though there was no verdict here, but respect reason more.

At his Conspiracy,  Eugene Volokh links to a pair of decisions from the beautiful United States Virgin Islands that tests conscience, law and guts.  Now retired Judge Leon Kendall, who by some accounts was never the sort to sit quietly as impropriety happened around him, decided he had enough.  So did the V.I. Supreme Court, who decided that Kendall was going down for being so obstreperous that he wouldn’t do its bidding. 

Rarely do we, the outside insiders of the legal system, get to see a judge willing to hold so firm that he becomes the defendant against charges of indirect criminal contempt. 

The  underlying case was your garden variety first degree murder of a cop, two defendants with a strong claim of self-defense.  The prosecutor was a guy named Jesse Bethel, who claimed before Judge Kendall that he didn’t offer the defendants a plea to involuntary manslaughter.  This prompted the attorney for one of the defendants, Steven Hogroian, to pull out a recorder with Bethel’s telephone voice message conclusively proving Bethel wrong. Judge Kendall held a deal made, and set the matter for the plea.

Bethel refused to show in court for the plea, and was held in contempt, found and seized.  Bail was set for $10,000, but the jailer just let him go home. Professional courtesy. Bethel did some dancing, and eventually obtained a writ of mandamus from the Supreme Court, holding that he had withdrawn his plea offer and it was off the table, sending the case back to Kendall to do their bidding.

Judge Kendall, calling out the Supremes and Bethel both, recused himself, telling the dirty story in a  lengthy decision that concluded with his refusal to be party to the shame.  The Supreme Court did not find Judge Kendall’s refusal to obey their mandate at all humorous, and charged him with indirect criminal contempt.  A special master was appointed to try him on the charges, even though he had, by this time, retired from the bench.  The result was a recommendation by the special master that he was not guilty of contempt.

“Oh no, you don’t,” the Supreme Court responded, being both accuser and jury.  Writing with their sternest faces on, the Supreme Court rejected the special master’s recommendation and concluded that Judge Kendall was guilty, guilty, guilty.  The court found:

Almost two months after the issuance of that opinion and almost one month after this Court issued its June 10, 2009 mandate, on July 7, 2009, Kendall issued a thirty-one page opinion, designated as “for publication,” in which he, among other things, made numerous inflammatory remarks about this Court, stated that this Court‟s issuance of a writ of mandamus “was clearly improper,” found that the writ had been “issued to facilitate the Prosecution‟s blatant misconduct and perpetrate a fraud on the [Superior] Court,” and recused himself from the case.

And this decision, his refusal to abide the ruling of the superior court and his recusal with good reason, brought disrepute on the court and obstructed the administration of justice.

What about the two guys charged with murdering a cop?  One died of “lead poisoning, calibre unknown” (I stole this from a comment at VC) in Market Square.  The other was tried and acquitted of all charges.  Only Judge Kendall was still in the dock.  No word about Jess Bethel, though I suspect a Medal of Freedom may be in his future.

While this case may be among the most bizarre scenarios to develop out of a criminal prosecution and a judge unwilling to be party to an unconscionable wrong, it lays out a difficult question: Judge Kendall, in an honorable act of conscience, refused to abide a superior court’s mandate to ignore a lie.  Granted, he exacerbated the problem by calling the court out in a decision for publication, but then, transparency in government is usually considered a good thing, particularly compared with  decisions too secret for anyone to see.

Some might say that Judge Kendall was intemperate, failing to show the respect to the superior court that is necessary to make the system work.  That’s the whole point of a superior court, to tell the court below what to do.  When the inferior court is allowed to tell the appeals court that it doesn’t agree, its decision is wrong and it’s not going to happen, the system falls apart.

In this instance, some might say that’s a good thing.  But then, if Judge Kendall can do it here, what’s to stop another judge, ordered to dismiss an indictment against some notorious bad guy, from refusing to do so because the judge is certain that the defendant is guilty?

Notably, Judge Kendall’s reaction, aside from providing his thoughts about the Supreme Court’s mandate that directed him to ignore Bethel’s misrepresentations and its own facile manipulation of the plea offer to make a contract a non-contract because, well, it said so, was to simply refuse to be the judge who did the dirty deed.  By recusing himself, it would be left to another judge to deal with the case, and the mandate of the Supreme Court would be done.  Just not by him.

The irony here is that the only person in a position to spend a night in jail — even though it’s not likely to happen, but it’s possible — is Judge Leon Kendall.  Bethel, who might have enjoyed a night as a guest of the territory, was allowed to serve his punishment in his own bed.  The surviving defendant was acquitted, and the other, well, it sometimes happens that guys accused of killing cops end up dead in Market Square from a bullet with no shooter every found.

And Judge Leon Kendall no longer sits on the bench to call out liars, cowards and sycophants of the prosecution.  The system is back to working the way is was meant to work.

In a moment of weakness, I decided to check out what was happening at  Kevin O’Keefe’s LinkeIn Legal blogging Group.  What I found was  Brian Tannebaum’s marketing purgatory.  Aside from Kevin, and few marketers whose names were familiar, there wasn’t a person there who I had ever heard of or read about, but they were all pretending to be “thought leaders.”

I ran out of the room screaming.

But Kevin has a post at  Real Lawyers Have Blogs about a question posed by Mike Danko of the Aviation Law Monitor about how to deal with negative comments.

My policy has been to publish all relevant and reasonably civil comments, however negative, for the sake of allowing a real dialogue to develop. Lately, however, I’ve been getting so many negative comments that I wonder whether publishing them is counter productive.

Publish, or don’t? And if you publish, what’s the best way to handle them? Respond to them all? Or let them just hang out there?

This is a tough situation that I am sure many bloggers encounter.   Sometimes the Internet feels like the town forum and op ed pieces of old where we plaintiff’s lawyers were labeled the cause of so many wrongs – suing without merit, asking defendants and juries to pay unjust awards, and eliminating products and medical services from the market place. 

Taking pot shots in comments on the net is not easy. Nothing worthwhile is. I say take them, respond in kindness. If not for you, do it for for those injured and killed through the negligence and lack of care of others.

When you put your opinion in writing and hold it out publicly as something worth considering, you subject yourself to scrutiny. 

Spokane Attorney Stephen Graham responded along the same lines.

That is a lot of negativity out there, but I would definitely approve comments like those. they are a little nasty and personal but they are still on topic. I think a lot of lawyers would really appreciate that level of reader engagement. Search engines love all that content.

Graham was doing so well until that last line about search engines.  This is a reminder why talking amongst yourselves is a dangerous thing, even if it has the benefit of keeping issues within the loving embrace of a little LinkedIn community of like minded lawyers and marketers.  Aside from the smarm, Graham’s right, and more importantly, gone down a different path than Kevin, despite the “along the same lines” reference.

Negative comments, even a bit nasty and personal, are precisely what real engagement is about.  It tells a blawger that he’s said something that matters, he’s taken a stand.  This distinguishes him from most on the internet, who are scared to death to say something lest someone not adore him.  Search engines love that too, cheerleaders writing happy stuff about each other. 

Danko’s concern about negativity is misguided.  It’s just part of the joys of blawging, the wonders of having an opinion on a subject of interest to others that generates sufficient thought that readers are moved to write something.  This isn’t a flaw, but a feature.  He’s made others think, and there’s nothing a blawger can do that’s more important than that.

If Danko wants something to worry about, try this.  Write something about a subject that matters and have no one care.  If that happens, then he’s got something to worry about.

In the meantime, the fact that readers are sufficiently concerned to go to the trouble of writing anything, whether negative or positive, tells you that your opinion is worthy of scrutiny, worthy of their time to tell you how ugly and stupid you are.  If that’s too much negativity for you, then the blawgosphere isn’t for you.

And did I mention that Mike Danko writes some good stuff?  So toughen up and tell your negative commenters to blow it out their ears.  That’s the blawgosphere at its finest. 

The notion of dual sovereignty almost always comes up in a retributive way, as the feds jump in to rescue a botched state prosecution, circumventing double jeopardy and vindicating the public’s lust for vengeance.  Few people complain because the target of the second arrow is invariably someone publicly hated, and so we applaud the fact that they won’t “get away with it.” 

After all, since we all know they’re evil and deserve to be punished, why let a little thing like a state acquittal stand in the way of a mulligan.  Until first term Rhode Island Governor Lincoln Chafee decided that to say “no.”

The backstory is fairly straightforward, defendant Jason Wayne Pleau is accused of fatally shooting a gas station manager outside a bank in Woonsocket, RI, last September.  A basic murder case, the kind that states routinely handle. Pleau is already in prison doing 18 years for various parole and probation violations, and agreed to cop on the murder to life without parole.  Nothing unusual here.

Except that the United States Attorney for Rhode Island, Peter Neronha, thinks Pleau should be put to death for his crime, and so he put in the papers under the Interstate Agreement on Detainers, a mechanism that provides for one jurisdiction to hand over a body to another.  The plan was for the feds to prosecute him before Rhode Island could finish its prosecution.  They would give the body back eventually.  After it was cold.

The Governor did something that no one else, apparently, had ever before done. He said no.  Per the IAD, the request is sent to the governor, who signs his approval and the locals hand off the body to the feds.  Lincoln Chafee decided that he wasn’t going to sign.  He decided that Pleau, a Rhode Island residents, should be subject to punishment in the manner Rhode Island believed appropriate, and that didn’t include his execution. 

The feds were outraged that some punk governor of some state that could barely be seen on a map would have the temerity to say no. No?  No one says no to the United States of America.  Having been rebuffed on the detainer, they went back to the well for a Writ of Habeas Corpus Ad Prosequendum, which doesn’t require any signoff, but Chafee responded, “too late.” 

Inexplicably, the feds went to their own courts to compel Rhode Island to capitulate rather than carpet bomb Newport.  And surprisingly, the First Circuit refused to compel Rhode Island’s governor to bend to the will of the feds.

Via Howard Bashman, the  court held that the IAD expressly requires the approval of the sending state, Rhode Island, and that the governor, therefore, has the power to say no.  It as if a state is an actual entity, a real sovereign, in control of its own domain.  It’s as if a state is more than a cheering section for its local sports teams and a taxing authority.  Lincoln Chafee made the State of Rhode Island real.

The decision relies on the authority of the state under the IAD, noting that the feds, having chosen that mechanism first, can’t go back to the well and grab the body under an ad prosequendum writ.  The question was left unaddressed whether the State of Rhode Island could refuse to comply with such a writ, issued by a federal court, raising some really fun Supremacy Clause and federalism issues, which will have to wait for another day. 

The federal government tried one last ditch effort (carpet bombing still being off the table) to push the Circuit:

The United States insists that Governor Chafee’s objection to the transfer of Pleau on grounds of Rhode Island’s abhorrence of the death penalty is “not a valid basis” for refusing the request, and that allowing a governor to refuse an IAD request on public policy grounds “would be directly at odds with the IAD’s goal of ensuring fast and orderly transfers.” The United States cites no cases in support of this proposition, but rests its argument on the statutory text, which states that a requesting sovereign “shall be entitled to have a prisoner against whom he has lodged a detainer . . . made available.” 18 U.S.C. App. § 2, art. IV(a) (emphasis added).

The United States’ textual argument is unconvincing. It is true that Article IV(a) states that a requesting sovereign “shall be entitled” to have a prisoner made available to him after a detainer has been lodged. However, the United States neglects to mention that a few lines later, Article IV(a) explicitly qualifies this statement, and states that this is “provided . . . [t]hat there shall be a period of thirty days . . . within which period the Governor of the sending State may disapprove the request for temporary custody or availability.” 18 U.S.C. App. § 2, art. IV(a).

It is uncontroversial that a governor may block a prisoner’s transfer to a receiving state other than the United States, and we have already explained why Article IV(a) applies with equal force to the United States. As to the issue of timeliness, the IAD specifies a thirty-day time frame for a governor to decide whether or not to grant the request, and so long as a decision is rendered in that time frame, it is entirely unclear how it would matter to the speed of a transfer what reason a governor had for accepting or rejecting a transfer request.

We pause to note that the crimes Pleau is alleged to have committed — armed robbery and murder — are quintessential state crimes, and betray on their face no hint of any uniquely federal interest. See United States v. Jiménez-Torres, 435 F.3d 3, 14-15 (1st Cir. 2006) (Torruella, J., concurring) (objecting to unwarranted extension of federal criminal jurisdiction over traditionally state crimes). Moreover, given that Pleau has already agreed to plead guilty to state charges and accept a life sentence without the possibility of parole, it is frankly unclear what is to be gained from pursuing federal charges in this case, particularly in light of the truly extraordinary costs of capital litigation.

Sure, Rhode Island isn’t the biggest state.  True, it’s residents are disinclined to walk around in cowboy boots like Texans.  Yes, it’s governor graduated from effete Brown University, where recitation of poems is favored.  And yet, he demonstrated the guts to stand up to the demand of the federal government to hand over one of his citizens, a really bad one but still one of his, and refuse to be party to the machinery of death.

One life at a time.  It may not be much, but it’s better than one additional execution.

The  Economist posted a story about the hotel of the future, where every need was addressed in technological real time.

Specifically it looks at how a modern hotel might utilise social media to improve the service it offers customers.

For example:

7 AM PST: You hop on a flight from LA to New York. Before take-off, you tweet, “Headed to NYC. Looking 4ward to drink poolside @ThompsonLES.” When you land and turn your mobile on, you have a Twitter response from @ThompsonLES, which reads, “We look forward to having you. Shall we reserve you a lounge chair?”

And later on:

6 PM: When you arrive back in your room, you notice you have a message on your hotel iPad. You open it, and it takes you directly to the hotel’s Facebook videos, and in particular, a video illustrating the hotel spa’s offerings. Beneath the video is a “click to reserve spa treatment” button. You do. And before setting the iPad down, you use the hotel’s custom app to select and reserve a table at a recommended restaurant.

It’s all very clever technically, and doubtless responds to some guest needs, but I find this vision leaves me a bit cold.

For the writer, the problem was the elimination of human contact, where glowing lights forming letters and images was the closest one came to personal interaction.  Certainly something to feel a bit cold about.  But that hardly exhausts the problem.

In the first example, the hotel responds to its patron’s potential interest by offering a convenience directed toward his announced desires.  Very cool, and certainly welcome.

The second example, however, is disturbing.  You arrive at your room to see the message light flashing, and immediately check, worried that your child is lying in a pool of blood on the side of the road.  No, no, it’s just the hotel taking advantage of your concern to thrust its premium services at you, unsolicited and undesired. Sell. Upsell. Forget about the guests’ quiet enjoyment, and spam them with anything that can make the hotel a buck. 

Let’s assume that the hotel twits that it’s taken the liberty of reserving a table for you at its finest restaurant for that evening, and you are thrilled, since that was the plan and it saved you a call.  The miracle of social media, right?

When you arrive for dinner, however, there’s no reservation to be found, and every table is booked.  The maitre d’ asks who took your reservation and you point to your iPhone 37.  His wry smile brings chills. “I’m afraid that the reservation requires you to respond that you want it or it is automatically canceled,” he explains. Since you didn’t respond, you have no table.   

You are standing there, hungry and angry. “We apologize for the inconvenience,” the maitre d’ continues, “but there is nothing we can do.”

Personal communication, even between someone who cares and someone who is paid to pretend they care, involves a level of reality.  Whether the tone of voice, or the ability to pursue an issue to a depth that brings a human element to the communication, there is a level of connection that can’t be replicated on social media.  Especially when it’s human against enterprise. 

The latest trick in customer service is for the representative to say “this is Susie in Des Moines.”  You get a name and a place, to assure that you aren’t speaking to Susie in Bangalore or Peggy in Uzbekistan.  It’s meant to give you the impression that you’re dealing with someone who can fix things, help you.  It’s meant to show that you haven’t been shunted off to Peggy.

In speaking to Susie in Des Moines, you will find out pretty quickly whether Susie has the authority or inclination to do something, or is limited to uttering the words of a David Mamet script.  Susie is a person, and you can talk to her. It doesn’t mean that you will get any satisfaction or help, but at least you have the opportunity to engage, and leave the conversation knowing that there will, or won’t, be a resolution. 

Sure, she’ll end the conversation with the insipid “is there anything else I can do for you today?” ignoring that she would have to do something before she could do something else, but its the same white noise as “we apologize for your inconvenience” when they’ve poisoned you infant.

This may be cold consolation, but it far exceeds what social media has to offer.  Conversations go back and forth.  Social media allows a flow in one direction, whether to spam you with upsells and advertisements or to deluge you with apologies and nonresponsive responses to very real problems. 

Susie, the human being on the other end of the phone, may feel some desire to help someone who should rightfully be helped.  If her authority is too limited, she pays the human price of knowing, somewhere in her brain, that her days are dedicated to making other people miserable. This takes its toll on people, unless they’re a sociopath of the type who leaves callers to Suicide Hotline on hold while she finishes regaling her co-workers with the story of her last shopping venture.

Social media has no soul. Bother them too much and you disappear in the ether.  It’s not the social media couldn’t be wonderful, but that it won’t.  It may offer a change in the mechanics of communication, but it won’t give the person on the other end a soul.  And they will never have to hear the voice of the people they burn.

The word usually refers to weapons that cops carry “just in case.”  If they shoot someone and it turns out that the person wasn’t a threat, they just put a throwaway in his hands and, bingo, a righteous shoot.  The word could also refer to the human beings that former NYPD Det. Stephen Anderson testified about.  Throwaways.

Cooperating with the prosecution, Anderson explained the problem.

“Tavarez was … was worried about getting sent back [to patrol] and, you know, the supervisors getting on his case,” he recounted at the corruption trial of Brooklyn South narcotics Detective Jason Arbeeny.

“I had decided to give him [Tavarez] the drugs to help him out so that he could say he had a buy,” Anderson testified last week in Brooklyn Supreme Court.

He made clear he wasn’t about to pass off the two legit arrests he had made in the bar to Tavarez.

“As a detective, you still have a number to reach while you are in the narcotics division,” he said.

Work, work, work. When you work narcotics, you have to make busts or get busted. When there aren’t enough people to bust, you just find some throwaways. Anybody in a bad neighborhood will do.

Nathan Burney, who did time in the office of the citywide Special Narcotics Prosecutor, an office necessitated by the volume and fear of narcotics in New York City, before he came in from the cold explains what this mean to the throwaway.

Here’s what happens to you when narcotics officers arrest you for no good reason: You’re forcibly kidnapped, usually in public, in some of the most shaming circumstances imaginable. You’re hauled off in handcuffs, which fucking hurt. You’re fingerprinted, and a rap sheet is created, and unless you are very lucky the fact of this arrest will be part of your official record for the rest of your life. You’re charged with a crime, perhaps a felony.

To support the charge, officers like Anderson will provide some real drugs and say they found them on you. Maybe they’ll sit around and try to come up with an incriminating statement they’ll say you “blurted out” on the scene. Faced with overwhelming evidence, you may well take a plea just to avoid the near-certainty of prison. Your reputation is shot, your background check will kill most decent job opportunities, and you will be a convicted criminal for the rest of your life.

Because you’re not an addict eligible for a program, you’re more likely to do time. And now that the cops know you, and you’ve already got one arrest for this, you’re an easy mark — you’re all the more likely to get hassled and arrested again.

From the defense side, all of this was true. And more.  A nice guy, often named Jose, who worked in a crappy job to pay the rent and did his best to stay away from street corners were trouble often happened, found himself in the Kafkaesque situation of being taken off the street on his day off.  Nothing made any sense as he pondered for the next 28 hours what he was supposed to do. 

He and his family cobbled together money that should be used for the rent and to buy diapers for the baby to pay a lawyer.  It was all lies, he said.  But there was no DNA, no video, no witnesses to be found.  Just Jose’s word against the cop’s.  The cop had ribbons over his shield attesting to his bravery and honor. Jose had nothing.

The judge was told this was a garbage bust.  Some judges looked back with sad eyes, knowing there was nothing they could do. Most judges cared as little about the throwaways as the cops.  The first time out was usually probation, and nobody was foolish enough to turn it down.  If Jose was lucky, he never ran into a cop again.  He walked the other way when he saw one coming.  If he didn’t, he could be back.  The next time was state prison, as he was now a predicate felon. The law left no choice. 

From Burney:

This is nothing new. It was nothing new back in the ’90s when we were a prosecutor in the city’s Special Narcotics office. Near the end of each month, there would be a spike in arrests (usually simple buy-and-busts) near the end of each month. There were blocks where cops knew they could make these arrests without even trying — they called it “going to the well.”

And yet prosecutors kept prosecuting.  Judges kept judging.  And throwaways kept losing.  Even when there was evidence, witnesses that the cops were liars, some Special Narcotics prosecutors did everything in their power to protect the lying cops and prevent the evidence of their lies from coming out.  Bad, evil things. Anything to protect their darling cops.  I’ve got stories.

Cops love busts, as the overtime buys their houses in Queens and the south shore of Long Island, far away form anyone named Jose.

“Did you observe with some frequency this … practice which is taking someone who was seemingly not guilty of a crime and laying the drugs on them?” Justice Gustin Reichbach asked Anderson.

“Yes, multiple times,” he replied.

The judge pressed Anderson on whether he ever gave a thought to the damage he was inflicting on the innocent.

“It was something I was seeing a lot of, whether it was from supervisors or undercovers and even investigators,” he said.

“It’s almost like you have no emotion with it, that they attach the bodies to it, they’re going to be out of jail tomorrow anyway; nothing is going to happen to them anyway.”

Stephen Anderson said what everybody knew but nobody in an official capacity would admit.  Not a cop. Not a prosecutor. Not a judge.  Only defense lawyers and the throwaways talked about it, and nobody listens to us.  Believe us now?

Oral argument before the Supreme Court of the United States was held in Florence v. Board of Chosen Freeholders, and it didn’t go well.  The facts of Florence were a citizens’ nightmare, as related by the Third Circuit :

We begin with the facts surrounding the arrest and detention of lead Plaintiff Albert Florence. On March 3, 2005, a New Jersey state trooper stopped the car in which Florence was a passenger and arrested him based on an April 25, 2003 bench warrant from Essex County. The warrant charged Florence with a non-indictable variety of civil contempt. Though Florence protested the validity of the warrant by insisting he had already paid the fine on which it was based, he was arrested and taken to the Burlington County Jail (BCJ).

As I understood the oral argument, the Petitioner, represented by Tom Goldstein, took the view that the government can always watch arrestees from 10 feet away or a similar distance while the arrestees are showering before entering the jail. If the government wants to inspect the arrestees more closely, however, such as at a close arms-length distance, then reasonable suspicion is required. According to Goldstein, reasonable suspicion should always exist when the arrest is for a major offense. In contrast, case-by-case reasonable suspicion should be required for arrests for minor crimes. The Respondents, represented by Carter Phillips, took the view that no line drawing was required: As long as the inspection was only visual inspection of the outside of a person’s body, then the Fourth Amendment did not apply at all upon entering a prison.

My sense of the argument was that the Justices were pretty skeptical of engaging in the kind of line-drawing that the Petitioner advocated. It was just too hard to distinguish a 10-foot inspection from a 5-foot inspection from a 2-foot inspection, or to distinguish a major crime from a minor one. So I would guess the votes will be there for a conclusion that no line-drawing as required, as the government has the discretion to do a close visual inspection of all arrestees when they enter jail.

Aside: For those whose legal genius is limited to blog posts or comments, never having stood before a panel of judges whose purpose in life is to shred your best argument into a million pieces, that’s how lawyering happens.  Unlike the wails of misery when someone calls you stupid on the internet (oh, the horror), if you can’t take the scrutiny here, stay out of the courtroom and far away from clients. You can’t handle it.  In courtrooms, whether trial or appellate, you will be tested. That’s what we do.

To my mind, the case is really a follow-up to Atwater v. City of Lago Vista, 532 U.S. 318 (2001), in which the Court considered whether the Fourth Amendment allows arrests even for very minor offenses. In Atwater, the Court concluded that the Fourth Amendment does allow arrests even for very minor offenses — in that case, a seatbelt violation that led to a small fine. Florence requires the Court to confront a downstream implication of Atwater: If the Fourth Amendment allows the police to make the arrest for the very minor offense, and the arrestee is then brought to the jail, does the Fourth Amendment also allow the kind of invasive strip search that often occurs on entry into jail to ensure that no contraband is brought inside?

Whether it’s something special about the relationship between Ferraris and the federal government, who knows, but of all the cars, regardless of age or marque, it seems that Ferraris fare worse than any other. 

When word of the finding of the stolen 1995 Ferrari F50, one of 349 made, in Lexington, Kentucky reached the owner’s insurance carrier, it was cause to celebrate.  This was a $750,000 vehicle, and not an inexpensive payout to the Pennsylvania dealer from whom it was stolen.  And now it was back in safe hands, the hands of law enforcement and the federal government.  Safe, safe hands.

On August 12, 2008, the FBI stumbled upon the stolen car in Lexington, Kentucky during an investigation into a separate crime. The agency held the vehicle with permission from Motors while the thief was investigated. On May 27, 2009, FBI Special Agent Frederick C. Kingston got behind the wheel of the Ferrari with by Assistant US Attorney J. Hamilton Thompson in the passenger seat.

   “Just a few seconds after we left the parking lot, we went around a curve, and the rear of the car began sliding,” Thompson wrote in an email to a superior. “The agent tried to regain control, but the car fishtailed and slid sideways up onto the curb. The vehicle came to rest against a row of bushes and a small tree. Both myself and the agent exited of our own power.”

 “It is certainly unfortunate what befell MIC’s vehicle,” Judge Cohn ruled. “However, the vehicle was damaged while being detained by law enforcement officers within the meaning of Section 2680(c). As such, the government cannot be liable under the FTCA for what occurred. Accordingly, the government’s motion is granted. This case is dismissed.”

The car was totaled, and the DOJ refused to accept any responsibility, asserting sovereign immunity. The department stonewalled all requests from Motors seeking information regarding the incident. The Federal Tort Claims Act does allow for an individual to recover damages caused by the negligence of federal employees while acting within the scope of their employment. This law, however, includes a “detention-of-goods” exception, 28 US Code Section 2680(c), that absolves the government from claims “arising in respect of… the detention of any goods” by a law enforcement officer.

US District Court Judge Avern Cohn found that the exception covered the case at hand because the Ferrari was being detained by law enforcement.

You need it. You want it. Here it is, at the beautiful Cornell Club in Manhattan.

Social Media in the Workplace – Practical Solutions for Companies Panel Discussion and Networking Breakfast

  Tuesday, October 18, 2011 8:00-10:00a.m.

The Cornell Club, 6 East 44th Street, New York, NY

 

In a time of “Tweeting” about the significant and the mundane, impulsive Facebook posts, and employees divulging company information on LinkedIn, many businesses are trying to figure out how to deal with employee social media use.  Some companies embrace employee social media use for sales, recruitment, and exposure to clients and customers.  Other companies consider social media a drain on employee productivity and a source of potential liability.  The practical, human resources, and legal issues of social media in the workplace, including an international perspective, will be addressed by our panel: 
 

       George Freeman, Deputy General Counsel, The New York Times

       Ellen Dember, Executive Director of Human Resources, KPMG LLP

       Keith Corkan, Solicitor, Laytons (London)

       Joseph Cartafalsa, Attorney, Putney, Twombly, Hall & Hirson LLP

8:00 – 8:30 a.m. Breakfast

8:30 – 10:00 a.m. Presentation

 

Co-Sponsored by the ILR Alumni Association of Cornell University and the law firm of Putney Twombly.

Please register at http://www.ilr.cornell.edu/alumni/events/10182011-NYC-PanelandBreakfast.html

And there will be a special color commentator curmudgeon (Cornell ILR ’79) who, I promise, won’t disappoint.  Who?  Maybe this will give you a hint.



Or maybe I just love this song. Be there.

At Volokh Conspiracy, Eugene has given the bully pulpit to Clark Neily of the Institute for Justice, a libertarian “public interest” law firm.  The IJ has established the  Center for Judicial Engagement.

The courts were meant to be an integral part of keeping legislators and executive branch officials within the proper bounds of their authority.  But as the Institute for Justice has seen too often, judges are either unwilling or feel unable to enforce constitutional limits on the size and scope of government power.

Changing that is the mission of IJ’s Center for Judicial Engagement.  The Constitution was designed to be a bulwark of liberty against overreaching government, but it can only serve that vital function when judges actually enforce it.  Increasingly, however, courts are inclined to disregard constitutional limits on government power under the rubric of judicial minimalism or restraint, when often a more accurate term would be “judicial abdication.”  That must change.  The Center for Judicial Engagement will cut through unhelpful rhetoric about supposed judicial activism and simply ask whether judges are properly engaged in their role of interpreting and applying the Constitution.

Many readers will applaud this goal, reading into it what they believe to be the proper limits on governmental power.  Others will realize the sweetness of the words mask the potential deregulation of a wealth long-appreciated initiatives, leaving it to megacorporations to behave in a socially safe and acceptable fashion because market forces and enlightened self-interests compel it to do so. 

The IJ is engaged in legal action that many hear will vigorously applaud, such as challenges to the evil of civil forfeiture.  But as Neily discusses at VC, there are other issues high on its agenda.

Consider IJ’s ongoing challenge to Florida’s interior design licensing law. The state stipulated it has no evidence that the law benefits the public or that the unlicensed practice of interior design presents any bona fide public welfare concerns. The record makes clear that the only end plausibly advanced by the law is the suppression of competition at the behest of a rent-seeking interest group called the American Society of Interior Designers.

Whether licensure of interior designers strikes you as an evil sufficiently worthy of attention, the argument behind the challenge is one that is likely to pique interest.

The most obvious example is rational basis review, where courts apply a strong presumption of constitutionality that may only be overcome by “negativing” every conceivable justification for the challenged law. The government’s true objectives are irrelevant in rational basis cases, and “legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993).

If occupational freedom were considered a “fundamental” right, then the reviewing court would evaluate the government’s true objectives based on “actual, reliable evidence.” In rational basis cases, however, courts abandon that inquiry altogether and simply ask whether some conceivable justification may be hypothesized, no matter how clear the government’s actual — and in this case wholly illegitimate — objectives might be.

In a world of legal fictions, where courts strain, to the point of sophistry, to find some explanation that would uphold the constitutionality of legislation despite its “true” purpose, the rational basis test is a killer.  What many consider “rights” that fall a penumbra or two shy of fundamental are regulated, maybe even criminalized, and this gets the courts’ seal of approval because some cockamamie rationale that no one actually believes has anything whatsoever to do with either the purpose or effect, under the rational basis test.  Not only are such fictions allowed, but they are used without the slightest sense of shame to uphold legislative action.

And I would be remiss not to mention that such silly gymnastics find their way into rationales upholding restrictions on fundamental rights as well, but let’s not talk about the  bizarre paragraph in Heller that undermines everything else in Justice Scalia’s decision. If J-dog were alive, he’d ironically admonish me to give it time.

The presumption of constitutionality, predicated on the notion that legislative action reflects the will of the people, and that courts should show restraint in their rejection under constitutional grounds lest they substitute judicial sensibilities, makes challenges difficult.  And they should be difficult.  And to suggest otherwise smacks of a cry for judicial activism, to demand that judges toss laws that are stupid, counterproductive, or, we believe, just plain wrong.  But those aren’t the test.  The legislature is entitled to pass laws that are stupid.  They just can’t enact laws that are unconstitutional.

Yet one can’t help but appreciate the IJ position that the reluctance to question the constitutionality of laws has become so overwhelming, particularly given legislative activism that either regulates or criminalizes everything shy of passing gas in public, as to render judicial review as an historic relic.

The thrust of the post, that rational basis analysis as the test of constitutionality for less-than-fundamental rights, resonates.  Why, one has to ask, do we persist with judicial fictions, that any explanation no matter how false and absurd, is sufficient for a law to pass constitutional muster?  What’s so wrong with real?  What’s so bad about limiting legislative initiatives to their intended purpose?  He’s got a point.