Most of the time, the videos of misconduct that go viral, that grab our attention and produce outrage, show brutal and horrific conduct.  While these images are undeniably moving, they are also outliers, as most police officers don’t beat prisoners to a pulp, or body slam innocent people into paralysis.  Few cops, or judges, see these as anything more than “one bad apple” examples, and shrug them off.

For this reason, a video out of Houston of former United States Air Force MP turned Houston cop, Angela Horton, is unlikely to get your blood boiling, but is far closer to normal, everyday misconduct than the one that makes the 6 o’clock news.  Via Grits for Breakfast :



What’s striking about this strike isn’t that it’s so harmful or shocking, but so banal.  Angela Horton just walks up to the cuffed perp and throws a punch to his head.  The two officers holding the suspect don’t react at all.  It’s just another day at the office.

To their credit, HPD relieved Horton of duty and commenced an investigation.  Of course, had their been no video of the punch, chances of anything having come from the suspect’s allegation that an officer walked up to him and punched him are slim to none.  And Horton’s explanation?

The one-eyed cop is king.  Funny, sad and pathetic, this video (there’s a second as well) of two guys in California, testing the open carry law, via Carlos Miller, provides a graphic illustration of how cluelessness rules the streets.

It is legal to open carry firearms in California as long as the guns are not loaded and the carrier abides by other restrictions, according to this site.

The officers detained them while they checked the serial numbers on their weapons and for possible warrants on the men.

The men were eventually released with their weapons.

“How about you not trying to agitate the situation…”  Well, the only way not to “agitate” the situation is to comply with the commands of the police.  But then, we’re stuck in a vicious circle, since that leaves people free to exercise their rights subject to detention, search, subjugation and approval by the cops.  That’s not quite free exercise, and should these fellows happen upon another set of police ten minutes later, they may well be put through the same “exercise” again.  And again after that.

There are many groups reflecting many of the rights in which we believe and of which we hold dear, and they promote the idea that people take to the streets, assert their rights publicly and challenge the police to stop them.  They’re taught what to say and how to say it.  They’re told the police are not allowed to do the very things that are done in these videos. 

Are they?  Can the police violate rights at will?  In fact, sure. They have guns and shields, and can do pretty much anything they want on the street.  And what are you going to do about it?

The two men in this video are eventually released.  Had they been arrested, they would be charged with something and would assert that they’ve committed no crime.  The best outcome would be that charges are dismissed, an outcome by no means assured, and the upshot is that the cops win because the only party who suffered for the exercise of rights was the guy trying to do so.  It’s not party, even if the charges are dismissed.

Some will suggest that they should sue the police.  For what?  Expensive, time consuming litigation, with a fairly questionable likelihood of prevailing (because the cops have a point about their authority to detain someone who presents a credible threat, even if that threat is a matter of right), may work for public interest groups that are well-prepared and financed for testing the law, but regular guys aren’t in a position to carry this water.  And there’s no pot of gold on the other end.

And to be frank, should a court admonish the police, in the sternest possible language, that the conduct observed in these videos reflects a wholesale violation of the right to open carry in the State of California, it won’t change a thing.  There is no court decision, no statute, and not even a right enshrined in the Constitution, that will prevent a police officer from making sure that you won’t harm him.  Nothing is more important than him making it home for dinner.

On the other hand, the creation of videos like this, and disseminating them widely with appropriate commentary that reflects the fact that the police are regularly engaged in the abrogation of rights provided by law and discussed by judges as if things like this are a figment of the public’s imagination, provides the best opportunity to combat and challenge the first rule of policing. 

It’s no magic bullet, but it’s the only opportunity available to keep the cops honest.  No matter what legal mumbo-jumbo they spout.

Much as I make fun of some of the “columnists” at Above the Law because they are vapid, clueless or disingenuous hypesters, one has produced an exceptionally good body of advice, even without infantile toilet references or images of naked people.  He’s none other than  my fellow curmudgeon, Mark Herrmann.

His  latest quest is to explain to the children why old guys (like him) are insane.  Don’t worry. He uses small words and lots of examples and analogies.

As you age, you are driven insane by mistakes that you’ve made (or seen others make) in the past. You’ve seen someone wait until 5 p.m. to call for vital information, and the person who had the information had left for the day and was now unreachable. For the rest of your life, you make your phone calls for vital information before noon, just in case.

You’ve sent an email urgently requesting information and not received a response for a week, because the intended recipient was out on vacation. For the rest of your life, when you send an urgent email, you then call the person to whom you’ve sent the email to confirm that the person is not on vacation. If you don’t reach the intended recipient, you speak to the recipient’s secretary to confirm that the recipient is in the office and will see the email. You remember that once a secretary deceived you, saying that the person was not on vacation, but neglecting to mention the person was tied up in court and wouldn’t see the email for hours. For the rest of your life, you cross-examine secretaries about when the lawyers for whom they work will next be checking emails.

Sure you’re crazy; you’ve been driven insane by events. You’re hedging against things that victimized you in the past.

But another possibility is that the older lawyer has simply lived longer and so had the chance to be driven insane by more events. The older lawyer knows — deeply and fervently, down to his very core — that you simply must proofread the last draft of the brief before you file it, even though the final revisions did no more than fix a couple of typos. The younger lawyer thinks the older lawyer is nuts.

Burt Roberts was called the toughest DA in New York before he became a judge in the Bronx.  When you were in his courtroom, he would make sure that one thing was absolutely clear, that he was the best lawyer in the room.  Whether or not that was true, there was no purpose in disputing the point.

At PrawfsBlawg, Tun-Jen Chiang asks why we want judges to be great lawyers.

In the rhetoric of judicial nomination fights, two things that just about everyone agree on are: (1) judges should be great lawyers, and (2) judges should not engage in results-oriented decision-making, that is, they should not first come to a predetermined outcome based on extra-doctrinal considerations and then dress up that outcome in legalistic mumbo-jumbo.

But it seems to me that the very definition of a great lawyer is someone who can take a predetermined outcome based on extra-doctrinal considerations (my client should win because he is paying me), and dress it up in legalistic terms in the most persuasive manner.  Sure there are other attributes associated with a successful lawyer, but the ability to twist legal doctrine to reach your client’s desired result seems to be the defining trait.

Putting aside quibbles about this peculiar definition of a “great lawyer,” reduced to the person who is most persuasive no matter how wrong or disingenuous, and which subsequently confuses “successful” with “great,” the question remains why we assume that the attributes that make someone a great lawyer are the same attributes that make someone a great judge.

One reason to have judges be great lawyers is that they would then be able to call out the lawyers who appear before them for doing this.  This is rather akin to having the best thief in the world design your safe.  But if you get a thief to design your safe, you better make sure you have some way of controlling him afterward.

This is what made me immediately think of Burt Roberts, as he relished ripping the lungs out of lawyers who made ill-conceived or frivolous arguments, proving conclusively that he was smarter than them.  There were times when it was fun to watch Burt emasculate some clueless dope, and there were times when it was like watching a kid pull the wings off flies.

Do we really want judges to be “great lawyers?”  To some extent, we do, but not because we believe that great lawyers make great judges.  Rather, we attribute skills and abilities to great lawyers that we believe to be applicable to excellent judicial performance.  We assume great lawyers are smart, knowledgeable about the law, excellent at issue spotting and capable of discerning a valid argument from fluff.  These are merely assumptions, but it’s not too much of a stretch.

But it’s not really clear that we do want great lawyers to be judges. Other aspects of what we seek in a judge is fairness, impartiality, appropriate temperament and enormous self-control.  On the other hand, there are attributes of great lawyers which can prove terrible in a judge, raging ego being a prime example.  No great lawyer can function without the ability to believe that he alone is right even if the rest of the world is against him. 

It appears from Chiang’s framing of the question and explanation that he’s vastly oversimplified the issue, and doesn’t have a firm grasp on what lawyers do.  Do lawyer merely take their objective and “dress it up in legalistic terms in the most persuasive manner?”  Sometimes, but that’s hardly a fair description of the job. 

In a comment to the post, Orin Kerr attempted to unravel Chiang’s confusion:

“The ability to twist legal doctrine to reach your client’s desired result seems to be the defining trait [of a lawyer].”

I disagree. I tend to think that the defining trait of a good lawyer is the ability to get an accurate sense of the strength and weaknesses of various legal arguments. It’s true that a lawyer must then go on to use that skill to develop the strongest case for his client, but that’s a use of the skill, not the skill itself.

Chiang responded:

Orin, that is a pretty metaphysical distinction. To use my thief analogy, it is like saying that the defining skill of a good thief is the ability to get an accurate sense of the strength and weaknesses of a safe’s defenses, and that a thief then only uses that skill to a particular end. It is true enough. But it doesn’t take away from the fact that we seem to want to pick the very people as judges who have devoted their entire careers to practicing something (making results-oriented legal arguments regardless of whether they believe those results to be the most faithful deduction from doctrine) that judges are not supposed to do.

While Orin’s explanation may be “pretty metaphysical,” it’s right on target.  Great lawyers use their skills for a particular purpose, to zealously represent their clients, because that’s their mission.  It’s not because they’re incapable of distinguishing between the work they do and the position they would take if they had no horse in the race.  This is a primary attribute that allows the great lawyer to develop a winning argument even when his cause may be questionable, recognizing the weaknesses of his position and finding viable ways to deal with them. 

This is one of the fundamental distinctions between zealots and great lawyers.  Where the zealot is incapable of understanding that his arguments are unpersuasive to anyone who fails to share his view, the great lawyer comprehends that his job isn’t to be “right” in some philosophical or political sense, but to be persuasive to the decision maker.  The great lawyer uses his skill to achieve the desired end, but doesn’t delude himself into believing that just because he makes an argument that he sits at the right hand of God.  The great lawyer knows only too well that sometimes he’s dead wrong, but still has a job to do.

Far too many judges take the bench to impose their vision of right and wrong, certain that they know what justice is and, given the power of the robe, intend to ram it down the throats of everyone who stands before them.  To demand that judges achieve some sort of true impartiality is a bit naive, as judges are people too, bringing their prejudice and sensibility to the job.  They may be wise (or not), but that doesn’t mean they’re an empty vessel, devoid of feelings, bias, understanding of the world and life from their unique personal position.  We’re all that way.

But the great judge, like the great lawyer, recognizes this in herself, and understands that the function has to be separated from their impulse to impose their view of right and wrong on the world.  The great lawyer may be capable of crafting a brilliant argument to support his cause, even though there may be valid, perhaps even stronger, arguments against him.  He does so and still, in his heart and mind, is fully aware of the flaws in his position.

The great lawyer who can appreciate the failings of his argument, and yet remember his duty to zealously represent his client, has the skills to be a great judge. The great lawyer understands why he does what he does, and doesn’t confuse his duty with his personal philosophy.  Whether that’s how, should he put on the robe, things turn out is another matter. 

Still, we are likely a lot better off having someone with the attributes of a great lawyer on the bench than the alternative. 

The Electronic Privacy Information Center, whose acronym is EPIC (which, of course, is pretty cool), decided to do more than just whine about the problem of overly intrusive conduct by the TSA.  It sued Homeland Security.

Before anyone starts clapping, it lost.  And it appealed.  And, for the most part, it lost again.  The DC Circuit issued its opinion that, with surprising brevity, dismissed the argument that scanners are unnecessarily intrusive and therefore implicate Fourth Amendment proscription.  Via Orin Kerr at Volokh Conspiracy :

As other circuits have held, and as the Supreme Court has strongly suggested, screening passengers at an airport is an “administrative search” because the primary goal is not to determine whether any passenger has committed a crime but rather to protect the public from a terrorist attack. See United States v. Aukai, 497 F.3d 955, 958–63 (9th Cir. 2007) (en banc) (passenger search at airport checkpoint); United States v. Hartwell, 436 F.3d 174, 178–81 (3d Cir. 2006) (Alito, J.) (same); United States v. Edwards, 498 F.2d 496, 499–501 (2d Cir. 1974) (Friendly, J.) (carry-on baggage search at airport); see also Illinois v. Lidster, 540 U.S. 419 (2004) (police set up checkpoint to obtain information about earlier crash); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) (sobriety checkpoint). An administrative search does not require individualized suspicion. City of Indianapolis v. Edmond, 531 U.S. 32, 41, 47–48 (2000) (individualized suspicion required when police checkpoint is “primarily [for] general crime control,” that is, “to detect evidence of ordinary criminal wrongdoing” unlike “searches at places like airports … where the need for such measures to ensure public safety can be particularly acute”). Instead, whether an administrative search is “unreasonable” within the condemnation of the Fourth Amendment “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” United States v. Knights, 534 U.S. 112, 118–19 (2001) (internal quotation marks omitted).

That balance clearly favors the Government here. The need to search airline passengers “to ensure public safety can be particularly acute,” Edmond, 531 U.S. at 47–48, and, crucially, an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.

While the court’s holding may not be entirely surprising, given the general deference that courts offer executive branch initiatives on hot potato issues and matters of security, it’s striking that the court simply accepted the notion, without the slightest skepticism, that scanners deter terrorism, thereby making us safer.  It’s as if the court read the TSA’s press releases and swallowed them whole.

Much has been written by people with actual knowledge on the subject, like security expert Bruce Schneier, explaining at great length and in substantive detail why the TSA’s initiatives do not serve legitimate purposes, do not make anyone safer and constitute security theater rather than actual security. 

Yet nowhere does the court recognize that there is any question, none, that the scanners or their alternative “patdown” (with or without insertion of gloved TSA hands into vaginas) may be a mere show to flame the public’s security fears.  For the less cynical, the court didn’t even consider that it’s a show to pacify the public, and provide a paid occupation that allows adults to touch the nubile breasts of young girls.

It’s astounding that the judges, with the opinion written by Judge Douglas Ginsburg, and joined by Judges Henderson and Tatel, swallowed the concept that the TSA knows what it’s doing, and what it’s doing must be sound because, well, the TSA says so, without any scrutiny whatsoever.  What strikes so many of us as monumentally dubious initiatives, conduct that is not only horribly intrusive but largely ineffective in protecting anyone from the exceptionally small risk of harm by terrorists blowing up a plane, is wholly ignored. 

Yet the decision goes on to compound the glaring gap in its discussion of balancing.  Even if we are to accept at face value, as the court does, that the TSA’s grope and scope makes flying safer, the court needs to get its scale tested. 

In course of “protecting” fliers from terrorism, the statistics need to be considered: Out of the many millions of people who have gone through TSA screening at whatever level of scrutiny existed since 2001, they have come up with a grand total of 25,000 security breaches and failed to catch a terrorist.  From one perspective, this suggests success, and the TSA is sooo effective that they’ve kept terrorists away from airplane. 

From another perspective, however, they have intruded into the lives of many millions of barefoot people, most of which have nothing to commend them to be a threat to anyone, for the risk that eventually a terrorist may sneak onto a plane and do something more serious than light his underpants on fire.

Did the court balance this in its holding?  Nope.

The rationale blindly adopted by the court seems to cover pretty much anything the TSA might deign to do.  After all, would vaginal and anal cavity searches of toddlers make us potentially safer?  Sure.  Who can say for sure that terrorists wouldn’t sacrifice a baby by putting an explosive in there.  It could happen.  And so every toddler should be subject to a gloved finger and some KY jelly?  That might foment revolution, but the D.C. Circuit panel would approve it in balance.

How many millions of fliers, of citizens, of people, must have their personal privacy and physical integrity sacrificed in the off-chance that the TSA might, eventually, stop a terrorist?  By this decision, as many as it takes.  The balance, by definition, is always in favor of the government and whatever mechanisms it chooses use. 

As long as its purpose is our safety, the TSA has a free hand.  And on that hand is a latex glove with the power to stick it between your legs.  Don’t complain, since your plane arrived at its destination without blowing up.  Isn’t it worth a finger up your child’s butt?

If I had to sum up Simple Justice in a sentence, it’s my soapbox.  What that means is it’s not yours. 

Recent links from other websites, whether blogs, aggregators or something else, that cater to non-lawyers who are angry with the government, or the cops, and who view our country as either going down, or already down, the toilet, have brought a number of people to posts here where they seek to express their lay views of the horribles of America. 

Some want to scream about how the Constitution is dead, while others rant about the absence of due process.  Others still employ the facile descriptors of fascism or Nazism to smear the things they hate.  You won’t see most of these comments because I delete them.

Then there are the folks who need to tell us about their personal experiences, using a post here as the stepping stone to write all about them.  Sometimes I allow the comment to post, when it seems to serve some cathartic purpose and doesn’t go too crazy, but most of the time I delete these comments as well.

I’ve been deleting a lot of comments lately. They make me cringe.

It’s not that I don’t appreciate your reading SJ, or that I disagree with you or that you’re wrong.  It doesn’t mean you’re right either, but that’s not the point.  This is a blog for lawyers, discussing issues that matter to lawyers and the law. I realize that non-lawyers find these issues interesting  as well.  That’s good, as these are the issues that affect all of us.  But that doesn’t mean that you’ve got anything to say that contributes to a thoughtful discussion.

Gross, simplistic assertions of how everything is bad and everyone is evil is crap.  It illuminates nothing and persuades no one.  Indeed, it does quite the opposite, making you look angry and ignorant, and suggesting to those on the edge that you’re just a lunatic, strutting around in your tin foil hat in a world filled with wild conspiracies.  You chase people away. 

Do you think that your personal belief that every cop is a monster matters to anyone else?  Frankly, your personal belief doesn’t matter to anyone else on any subject, but on the subjects raised here, they matter even less.  I know, you find yourself compelling. Nutjobs always find themselves compelling.  But people who aren’t nutjobs really don’t want to join your club, and tend to get farther away just to be sure that no one confuses them with nutjobs.

The internet is a hotbed for those who want to believe the revolution is coming.  Maybe it is, but it’s not going to start here.  And this applies to the handful of lawyers who wear tin foil hats as well, spewing silly, simplistic arguments and filled with rage at the system. 

No matter how sincere you are in your outlier theories of anarchism as the new model for society, there’s no groundswell of support.  But more importantly, I have no interest in having lengthy discussions about your bizarre beliefs.  Want to opine about it all day long?  Go ahead. Just not here.

Am I right and you’re wrong?  Maybe, or maybe not.  Obviously, I believe in what I write here or I wouldn’t write it, despite the fact that this overwhelmingly obvious fact eludes many.  Do you think it likely that I will change my views because some pseudonymous kid writes about his world view?  It’s amazing how frequently someone informs me that I’m wrong because someone named “Justin” says so.  I fear for a world where anyone would find this convincing in the slightest.

There are a ton of blogs and websites that cater to every political whim, and invite commentary from those who agree with their outrage.  Some all wear the same tin foil hats, while others are well-intended by misguided, demonstrating little grasp of the subject matter but expressing some generic anger because, well, things just don’t seem to be going the way they think it should.

Go out and find a place where others will embrace you for agreeing with them.  Go find people who are not only sympatico with your point of view, but want to discuss it on the same level, where issues of law or logic succumb to wild speculation and the beloved “common sense.”  There are plenty of places on the internet where no one need have a grasp of the subject matter to express their views, and rants filled with outrage are applauded. 

While SJ comes nowhere near the level of discussion that one finds at some of the more scholarly blogs, it remains my hope that discussion remains grounded in reality, relates to the law as it exists and not some non-lawyer’s absurd fantasy of how it should be, and furthers the point of the post.  I’m interested in non-lawyers thoughts, but only if they’re coupled with some small degree of reason and focus on the issue at hand. 

That some seem to think it’s an invitation to go off orthogonally toward some point that makes them angry is mistaken.  Your fascinated by your thoughts?  So what?  You feel the need to tell the world about your problems?  Go to therapy.  You need to convince the world to take arms against whoever it is that is the enemy of good people like you?  So give it a try.

Just not here.  This is my soapbox.  And if this means that I’m now part of the conspiracy, one of the enemies, because I don’t embrace your cause or don a tin foil hat. I can live with that.

Not the person, but the issue.  The  WSJ Law Blog headlines it thus:

Accused Sex Offender Allowed To View Child Porn While In Jail

Catchy, right? It grabs you by the collar and shakes you with fury.  But it sets the discussion off in a deliberately misguided direction, though the balance of the post provides a fair and accurate description of a exceptionally rare circumstance.

In this case, the alleged offender, Weldon Marc Gilbert, has chosen to act as his own defense lawyer, a choice that he claims entitles him to unlimited access to all of the evidence related to the case, according to the AP.

The local Pierce County Superior Court recently ruled in Gilbert’s favor, prosecutor Mark Lindquist told the Law Blog.

Sometimes, things work out this way.  Had the headline read, “Defendant Representing Self Allowed to See Evidence Against Him,” it wouldn’t have been as snappy and likely wouldn’t have made the papers at all.

“The whole thing is just dirty,” said Pierce County Sheriff’s Detective Ed Troyer on Wednesday. “Now that victims know he’s going to be watching this, they’re going to feel victimized again. This is our call to action to get the law changed.”

When you frame the issue as one of handing child pornography over to some pervert (putting aside, as normal people do, that guilt has yet to be established), it certainly does seem dirty.  Not that the victim is really victimized again, but that there’s a bone in our head that says anyone who would do such a thing would be better drawn and quartered than allowed to watch it.

The judge in this case seems to have taken appropriate precautions to limit the defendant’s potential “enjoyment” of the evidence, should that be the case.

The judge barred him from being alone when he reviews the videos and other evidence, set out on more than 100 compact discs.

He reviews them in a room visible to corrections officers with a defense investigator present, Troyer said. The jail requires him to turn his computer screen away from any doors or windows so other inmates don’t see.

Not perfect, but properly suited to allow the pro se defendant to see the evidence without much more.  However, the argument is that this is not only disgusting, but unnecessary despite the court holding otherwise.

Criminal defendants generally have a constitutional right to see the evidence against them so they can prepare for trial. That’s always been a sensitive issue in child pornography cases, where many people are troubled by the notion that perverts might be allowed to continue viewing the illicit material that got them in trouble in the first place.

“We have to disclose when we intend to introduce cocaine in a drug case, but we don’t give the defendant a kilo to take home and check out,” Pierce County Prosecutor Mark Lindquist said. “It is not necessary for the defendant to view the child porn himself to assist in his defense.”

Of course, Lindquist’s argument mixes apples with Fords and, in fact, is wrong.  The defense can, indeed, “check out” the kilo by moving to have it tested by its own expert for content and weight, and, I suppose, the defendant can be present when it’s done.

But the bottom line is that the nature of the evidence dictates the nature of disclosure.  If a person is charged with having porn, then the defense is entitled to be in a position to challenge it, and to prepare for the challenge, is entitled to see it.  Nothing new here.

The call for a law to close this “loop hole” is to frame it as a loop hole, a problem that demands a solution.  It’s not.  The defendant, nasty as the charges may be, must first be tried and convicted before he can be the terrible sex offender.  The defendant must be afforded due process before he can be tried and convicted.  These are the basics, and demand no further explanation.

Sure, the scenario has every potential to make a normal person wretch, and it’s not that we want men who sexually harm children to be able to enjoy watching kiddie porn while awaiting trial, but this inflammatory outlier scenario does nothing more than confuse the issue and the problem.  We have an amazing ability to come up with peculiar situations which just seem wrong, sometimes dirty, but fall squarely within the norm. 

We don’t like the way these outliers pan out, but they happen.  And keep happening. We can’t make every dirty, nasty bizarre situation disappear.  Not even a thousand new laws named after children will cure every potential ugly scenario.  We need to remain focused on the big picture, the reason why the system was created as it was, and intended to work as it should. Due process isn’t a bad thing, even though it may have the occasional ugly side effect. 

By framing the ugly side of the problem, the issue becomes badly confused and contorted.  Aside from the fact that no person is guilty until convicted, even the guilty are entitled to defend.  Many can’t wrap their heads around the idea, that everyone is entitled to a defense, but that’s the heart of the system.  No doubt the prosecutor, and likely even the sheriff, get the issue. 

Let’s not contribute to greater anger and misunderstanding by framing it in such a way as to exploit this unfortunate and bizarre situation at the expense of what is clearly sound and necessary legal process.  And for crying out loud, the last thing we need is another law.

After playing a video that included testimony by Laura Pettitte, precluded unless the defense opened the door, Judge Walton declared a mistrial.

U.S. District Judge Reggie Walton said prosecutors should have modified a video that showed a congressman talking about a deposition from the wife of Clemens’ old teammate, former New York Yankees pitcher Andy Pettitte, during a 2008 hearing. Walton had decided earlier that prosecutors couldn’t include references to Laura Pettitte’s testimony unless it was brought up on rebuttal.

“I can’t in good faith leave this case in a situation where a man’s liberty is at risk when the government should have taken steps to ensure that we were not in this situation,” Walton said after Clemens’ lawyers asked for a mistrial. “I don’t see how I can unring the bell.”

Now what?  It seems inconceivable in a trial with this level of public attention that the government’s failure to adhere to the court’s ruling was accidental.  But according to Oregon v. Kennedy, 456 US 667 (1982), retrial isn’t precluded unless the mistrial was “intentionally provoked.”

Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s 676 *676 motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. A defendant’s motion for a mistrial constitutes “a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.” United States v. Scott, 437 U. S. 82, 93 (1978). Where prosecutorial error even of a degree sufficient to warrant a mistrial has occurred, “[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.” United States v. Dinitz, supra, at 609. Only where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.

Intent, however, is determined in the usual way:

By contrast, a standard that examines the intent of the prosecutor, though certainly not entirely free from practical difficulties, is a manageable standard to apply. It merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system.

Few cases command the degree of attention that this case did, given the high profile of the defendant and its interest and impact on the cultural institution of baseball, the great American pastime.  This counts for something, and no doubt weighed heavily on the prosecution.

To conclude that the government did not intent to goad the defense into moving for a mistrial, and thus waiving the defendant’s double jeopardy protections, one would have to believe that the prosecution was so mind-bogglingly incompetent, so wholly incapable of performing their function with the barest minimum competence, as to not be aware that a video it presented to the jury contained the very testimony it had been admonished not to show. 

Could AUSA Steve Durham really be that much of a dolt in a case of this magnitude?

Well, sure, it’s possible, but to not infer that the government knew what it was doing when it played the video with the forbidden content is to presume that Durham is dumber than dirt.  No, that’s not a legitimate inference.  In fact, all evidence points to the contrary, that this was a knowing and intentional move, with the idea that it might either sneak through or get some tepid and worthless limiting instruction, which the jury would naturally ignore as all juries do once the bell has been rung.  What’s the worst that could happen from this deliberate conduct?  A mistrial?

Exactly.  A mistrial.  Not so much that the government’s specific intent was to goad the defense into a mistrial, but that causing a mistrial by its intentional conduct was the worst that could happen, the downside.  And the government was prepared, when it decided to engage in impropriety, to suck the defense into moving for a mistrial as its worst case scenario.

The only reasonable inference that can be drawn from the government’s conduct was that it knew that it was violating Judge Walton’s order, presenting testimony to the jury that it had been precluded from doing, and offering up the option of living with the prejudice or causing a mistrial to follow.  Either way, it was a chance the government took.  Neither way can it be inferred that they’re just a bunch of dopey government lawyers who had a brain fart.  \

This was no accident.  The government didn’t screw up.  Double jeopardy precludes retrial.  And if you’re angry at Roger the Rocket for getting away with it, don’t blame him, the judge or the system.  The government did this, and it did it intentionally.

Update:   The AP has gotten on top of the double jeopardy aspect of the story:

“Generally speaking, mistrial does not bar a trial of the defendant when the defendant requested the mistrial,” said Harry Sandick, a former prosecutor who now defends white-collar cases. He said a judge may make an exception for misconduct on the part of prosecutors, but this appears to have been a simple yet devastating mistake.

“How could the government not have reviewed each piece of evidence after the court’s pretrial rulings?” he said. “This is crucially important, and prosecutors have to do this all the time.”

Well, kinda. Okay, not really.  After all, Harry Sandick is a former prosecutor, so it’s not like he has to actually know what he’s talking about before shooting from the hip to the AP.

In the Washington Times, Luke Rosiak exposes the unholy alliance of Mothers Against Drunk Driving and the ignition interlock industry.

As House leaders prepare to roll out a massive six-year highway funding bill, among the many interests watching with anticipation are a handful of businesses that have pressed for a requirement that could take them from cottage industry to multimillion-dollar market overnight.

The campaign by the manufacturers of in-car devices to test blood alcohol levels is representative of a particularly successful model of lobbying in which for-profit businesses align with altruistic activist groups to implement government regulations that create a captive market for their products.

Rosiak characterizes this combo as “Baptists and bootleggers,” the extremely effective joining of those seek huge financial gain with those whose interests are, at least superficially, entirely altruistic.  MADD has been monumentally successful in pushing the agenda, and the hardware and software, of drunk driving, though often blindly.  Remember when someone came up with the number .10 blood alcohol content to define in absolute terms what constituted drunk driving?  Remember when it arbitrarily dropped to .08?  Remember when legislators were told that these numbers were plucked out of the air, didn’t actually take into account the various factors that controlled the situation? 

It’s hard to argue against mothers.  It’s hard to face someone with a picture of a dead child, lost to some nefarious stone drunk who was still driving despite 33 priors. 

But the ignition interlock, though certainly an overarching onerous burden, it another solution that reaches far beyond its problem.  There are many questions and issues surrounding it as a means of preventing the death of a child, and there are many reasons why it’s a solution that will do plenty of harm in the process of attempting to prevent a wrong.

MADD doesn’t care.  Anything that has any potential, on the most simplistic level, to stop one child from being killed is good enough for their push.  And the ignition interlock industry, well, they’re not feeling very concerned about making billions either.

“The overwhelming majority of entities that want to regulate in some way are composed of Baptists and bootleggers,” said Peter Van Doren, editor of the quarterly journal Regulation, referring to the two groups that pressed for Prohibition 90 years ago: religious zealots who viewed alcohol as immoral and the gangsters who profited from its illegal status.

Manufacturers are “probably sincere and also making an alliance with Mothers Against Drunk Driving – the mothers would be the Baptists,” he said. “They’re going to them and saying if you mandate this thing, your version of the world will come along, and it just so happens we’ll get rich – but of course they don’t say that part.”

The way this plays out is that Congress uses a highway funding bill to coerce states to require anyone convicted of a drunk driving offense to install an ignition interlock device in their car.  It seems simple enough on its face. This is how Congress forced states to adopt a 55 mph speed limit, but money talks.

To no one’s surprise, there is no lobbying group for drunk drivers.  Not even first time offenders.

But consider the ramifications of forcing states to adopt laws requiring anyone convicted of a drunk driving offense to install an interlock device. There’s the cost, another penalty that many cannot afford. Then there is the technological imperfection, rendering cars inoperable because of a flawed device.  These devices are generally geared toward preventing someone from driving when they blow a lesser amount, say .02-.04, even if they don’t reflect drunkenness, aren’t working properly or confuse other things, such as medicine, for bourbon.

A bigger issue is that cars are operated by more than one person, and the installation on a car affects everyone who drives it, whether they have done anything wrong or not.  What about the drunk who has two cars in the family, and has to install the device on every car he potentially drives?

Even with the device, there is nothing to stop someone else from blowing into the device and then allowing the drunk to take the wheel.  For people who are inclined to actually drive drunk, circumventing protections aren’t that troubling an issue.

Radley Balko takes the position that these devices are understandable for multiple offenders, but less so for first timers.

I’m fine with mandating these devices for repeat offenders. But first-time offenders is too much, especially for someone barely above the too-low legal limit. And I don’t think it’s unreasonable to worry about the possibility that this campaign will expand to demand the devices in all new cars.

He may be a little too accommodating of technological solutions, even for repeat offenders when one considers the non-offenders who will be swept along with this unholy alliance.  Whether it’s the offenders children who have nothing to eat for breakfast as their parent has to pay the monthly interlock device rental, or the husband who can’t get to work because his drunken mother-in-law who uses the car has a defective device, the unintended consequences and ramifications have to be fully considered. 

And what is it about little black boxes that makes us trust them so blindly?  Does this reflect an innate human need to blow?

The problem here is that states will enact these laws upon the threat of losing federal funding, and nobody wants to lose federal funding, while Congress will insert these requirements into funding bills upon the lobbying of Baptists and bootleggers.  What will not happen is that the underlying concept, whether this is actually a good solution to the problem, and whether the unintended consequences of this solution are worth the price, will get a legitimate airing. 

And yet, we may well end up stuck with a future where starting our car means appeasing the MADD scold before hearing the engine crank, and it happened without so much as a discussion.

An email came in the other day from a reader who sought representation in a quasi-related field of law, one in which I had absolutely no one to refer.  I felt badly that I had nothing to offer, but I take referrals very seriously.  They are  my personal endorsement of the service of another lawyer.

Another email came in the same day, talking about an email from a criminal defense listserve asking if anybody wanted a particular case.  Apparently, the lawyer was asked by someone to refer him to a lawyer in another locale to handle his case.  The lawyer had nothing, so offered it up to the group to see if there were any takers. 

When I had no one to offer, I responded that I would ask another lawyer, one I knew well, who might be able to provide a referral.  My friend provided me with a name of a lawyer who was well-suited to the case, and I forwarded the referral to the client with an explanation of my relationship to the lawyer who provided the name, together with my assessment of his knowledge and integrity. 

There was no question but that the client was fully informed about how I came to the name of the lawyer, and that I could not personally vouch for the lawyer’s competence and appropriateness to handle the case.  It was clear that I was offering a second-hand referral, and my basis for sending it on.

The listserv situation, which could just as easily have happened on twitter or, any day now, Google+ or any of the other beloved social networking sites, is dangerous and, from my seat, improper and misleading.  When a client asks for a referral, they aren’t asking us to give them a name from the telephone book, a lawyer about whom we know nothing.  They are asking us for our counsel, to give them the name of a good lawyer, the right lawyer. 

Perhaps the listserv lawyer would tell his client that he knew no one and just put the query out there for anybody to respond.  Perhaps he would tell the client that he knows nothing about the referred lawyer, and it’s nothing more than a name.  But I wouldn’t expect it to happen that way.  It would be embarrassing and make the lawyer look foolish to provide a name of such utter worthlessness.  Rather, he would likely get back to the client with the name of a lawyer as if he’s on top the situation and the client can rest easy.  This is tantamount to a lie.

Referring cases is a wonderful way to make friends and get business.  After all, the expectation is that if you refer a case to Joe in the next state, Joe will send one back in appreciation.  And in some practice areas and jurisdictions, there may be a referral fee involved as well, a tangible sign of appreciation in the form of a third of a fee that the lawyer would otherwise have never seen.  Making friends is good for business.

Before we have the opportunity to become bestest friends by following someone on twitter of friending them on facebook, we came to know them in real life.  We might get a solid idea of whether they were any good or not, or whether they were the sort of person we would cross the street to avoid.  Whatever our impression, it was based on something.

We delude ourselves today, believing that a few twits gives us sufficient insight to have a clue who other people are.  And indeed, we’re strongly encouraged to do so, since the primary purpose of these social networking opportunities is to create a circle of people who, despite not having the slightest clue whether others are lawyers or 12-year-olds pretending to be lawyers, or dogs, can serve as a source of business.  The other reason is that people have no life, so they create one on the internet.

Some people spend hours nightly “engaging” with their internet buddies, which likely makes their spouses happy and available for other opportunities.  They come to believe that these “relationships” are real, that they know the people they talk to regularly, who join their tribe or become part of their sphere.  And when they need a lawyer in Des Moines, who else would they consider?

Do you tell your client that this great pal of yours, the lawyer from Des Moines, is nothing more than your digital buddy, a person you’ve never actually seen or spoken with?  Do you actually know whether this is a person rather than a dog?  Or do you let the fact that he has validated your virtual existence by witty twits in response to and appreciation of yours displace sound judgment.  Do you pretend to know someone because they smiled at you on the internet?

Many have come to accept that these connections are the best they have, and lost touch with the reality that they do not know who these people are.  Maybe they write cool blog posts as well, giving some insight into their views.  Maybe they express outrage at the same things that piss you off, suggesting some camaraderie that you project as skill in lawyering.  Maybe they are all you have.

To the client who has sought your counsel, and expected that the information you would provide in return would be as honest and accurate as possible, that the name of a lawyer you’ve provided is someone you actually know to be a real lawyer, a competent lawyer, an honest lawyer, do you tell them that you’ve referred them to a person you know only via the internet?

This won’t change with Google+, or whether the next really cool internet thing may be.  Instead, our heads are pushed ever further away from reality toward the pretense we embrace online in the hope that others who embrace it as well will send some business in our direction.  We’ve grown indiscriminate about who we connect with online, collecting numbers of friends and followers with no concern for who they are. The greater the number, the more likely we can make a buck off someone.

If you’ve inclined to confuse people with whom you twit for good lawyers, whether because they’ve followed you back or they twit about what great and dedicated lawyers they are, at least tell the client asking for the referral the truth, that you don’t have the slightest idea of their competence or integrity, and that your only connection to them is through this worthless prism of the internet. 

Even though we may be functioning in this virtual fantasy world, the guy who needs a good lawyer in the next state over will be dealing in the very real world of the law. Don’t burn him with your virtual relationships.