Why they do it is no secret: Every child wants the approval of his mommy.  When it comes to moms, no one ever really grows up.  Most of the time, a mother would rather die than harm her baby, but sometimes they feel otherwise.  Sometimes, they can be manipulated into believing that they are helping their baby.

That’s how mom becomes an agent of the government.

On the run for five days in 2009 after allegedly murdering his uncle in New Lenox Township, Ill., Jason Gonzalez was found by Joliet police asleep in his mother’s car when he turned on his cellphone for the first time since the slaying.

Gonzalez declined to talk to Will County sheriff’s detectives, asking six times for a lawyer, according to his attorneys. So police turned to what in some murder cases is one of the most powerful levers at their disposal – the suspect’s mother.

Kimberly Gonzalez was brought into the Joliet interview room, outfitted with video and audio recording equipment, where her son was being questioned. He told her he fatally shot his uncle – her brother Lance Goebel, 48 – then repeated his confession to Will County detectives who handed him a letter from his mother urging him to talk.

Don’t blame the cops for using the tool available to them, Mom.  But then, Gonzalez was smart enough to refuse to talk, savvy enough to invoke his right to counsel six times.  The police, to their credit, concede this, as opposed to the usual denials that it ever happened or parsing of words to suggest that “I want to speak with a lawyer” was far too vague to comprehend.  As defendants go, Gonzalez did well.

But when the police pulled out the big gun, he crumbled. He spilled his guts to mom.  Mom! Who can say no to the woman who carried you for nine months, who gave you life and held you to her breast?

Missing from this homey scenario, however, is that recognition that Kimberly Gonzalez wore a new hat when the allowed police to wire her up, instruct her on the discussion she would have with her son, and walk her into Joliet.  No longer was she merely mom.  Now she was an agent of the government.

Attorneys for Gonzalez, who are asking a judge to throw out the statements because they say their client had repeatedly asked for an attorney, called the conversation with Gonzelez’s mother the “functional equivalent of a police interrogation” and a “psychological ploy to elicit incriminating testimony.”

This isn’t the “functional equivalent” of anything; it is a police interrogation.  It is every bit as much a police interrogation as if mom put on a shield.  That it’s a particularly effective means of interrogating the recalcitrant defendant, exploiting every boy’s psychological desire to find shelter in his mother’s bosom, isn’t a flaw but a feature.  Much effort is put into law enforcement to find such features, and they do.

But the invocation of rights, both silence and an attorney, isn’t limited to Officer Friendly, but any person working for cops as well.  Mom too.

The more pernicious problem arises when slightly smarter cop figures out that he can use mommy and avoid the agency problem by wiring her up before taking the defendant into custody.

These are extreme examples of a common police tactic. Before formally filing murder charges last month against accused Blue Island, Ill., serial killer Sonny Pierce, police leaned hard on his mother, urging her to get him to confess before allowing her to speak with him, she says.

Scott Eby, now serving a life sentence, first confessed to his mother that he raped and murdered 3-year-old Riley Fox after FBI agents came to collect his DNA, a confession that caused the FBI to interview him again soon after.

Bear in mind, Miranda doesn’t come into play unless the interrogation is custodial.  As long as the cops know where to find their target, the need to grab him is secondary to the need to get him to talk.  That’s where mother’s milk comes in.

[DePaul law professor Susan] Bandes said that depending on the circumstances of the case – whether charges have been filed yet, whether the suspect asked for an attorney – it can be difficult to judge whether the tactic violates a suspect’s constitutional rights.

The Miranda warnings familiar to anyone who’s ever watched a TV police drama are intended to protect a suspect from feeling compelled to talk. But Bandes said an argument could be made that those safeguards don’t apply when a mom, as opposed to an intimidating police detective, is sitting across the table.

“It would feel like I’m just talking to my mom,” she said.

Bandes is absolutely, unequivocally wrong.  There is nothing about using mom that distinguishes her becoming an agent of the government from anyone else. Except maybe that she’s far more effective than any other potential government agent.  The only trick is whether they are able to do so before Miranda kicks in, when it’s fair game.

Once rights have been invoked, not even mom is entitled to undermine a defendant’s constitutional rights when she takes on the role of government agent.  If the talk comes before custody, however, then it’s fair game.  And this time, it may be far more than nine months at stake.

In explaining the process of the legal system from trial court to the Big Bench,  Eugene Volokh offered some perspective on how and why a case makes it to the Supreme Court in order to counter the misperception that the Supremes were there to straighten out injustice and bad decisions.  Error schmerror, as we lawyers say.

Orin Kerr took Eugene’s post a step further, or perhaps orthogonally, in noting that our Supreme Court Justices are expected to deal with flavors of law far afield from what they knew and practiced.

I would add another important point often lost in discussions of the Supreme Court: The Justices are generalists. They’re smart people, but they’re people, not gods. Because the Supreme Court reviews such a dizzying array of federal legal questions, the Justices spend their time on lots of pretty arcane and specific issues ranging from tax, ERISA, and bankruptcy questions to civil rights cases and commercial cases to criminal cases and jurisdictional cases. In that environment, the Justices don’t specialize much. They have a general idea of most general areas of federal law, at least after a few years on the Court, but they’re mostly generalists.

In a sense, the Justices are like most litigators. They become quasi-specialists about cases and issues because they have to be, but they’re not experts in the fields of law that they decide. When a case is on the docket, the Justices jump into the issue and learn about it. They try to figure out what is happening, and then they vote. To be sure, sometimes a Justice will come to the Court with a specialized background, and will maintain an interest in a particular field as a Justice. But that’s less common than you might think, and it’s relatively rare for a Justice to have the time to maintain that level of interest and knowledge about the field when on the Court.

This is a critical point, both from a practitioner’s perspective (don’t assume that because you are well versed in the law and see much of your argument as too obvious to be worthy of discussion that the justices will share your familiarity) as well as an institutional perspective.  We put into the 18 hands a monumental amount of authority to decide some big issues. 

Orin’s point is well taken, that nobody, even really smart lawyers, have such incredibly nuanced understandings of every niche of law to fully appreciate the significance of issues.  That the Supreme Court typically uses circuit splits as a “crutch” to decide what cases are worthy of their attention makes a bit of sense.

The problem is that it’s not good enough for those lawyers, and more importantly, those clients, who got burned by some bum decision in a more specialized or obscure area of law.  The assumption that if the law is headed off in the wrong direction, it will produce a circuit split is unreliable.  Why should circuit judges be any more capable of having such incredibly nuanced understandings of highly specialized niches than the Supremes?  They look for guidance from other circuits as well, and may be more than happy to defer to the work of some other judges in an area of law that they don’t find particularly interesting.  It’s an easy out.

Moreover, it can take years, even decades, for circuit splits to show themselves.  Is it really acceptable to litigants that a generation later, the Supremes finally figure out that the law is all screwed up and lives were lost, businesses destroyed, conduct prohibited or encouraged, wrongly?  Do we not believe that there ought to be some end goal to all this courtroom stuff that means that litigants who deserve to win end up winning?  Do we not sleep well at night believing that there is someone out there who will correct the wrongs produced by the best system ever invented?  And do we not think this might happen in our lifetime?

The fact is that some areas of law are commonly litigated, and the issues presented are both of the sort that arise regularly and of the sort that interest most judges.  Criminal law tends to be such a thing, though even then the justices often show such a naive belief in what happens on the street as opposed to the sanitized world on which their decisions are based as to defy credulity.  But what of patent law?  Or maritime?  If that wasn’t the area of practice before climbing onto the bench, what are the chances a justice will have a clue?

Perhaps the solution is in having more specialized courts to deal with more obscure or technical areas of law, where the judges will bring experience in their respective trenches to the bench and have a meaningful grasp of the nuance and significance of issues.  But this lends itself to other problems, where courts become entrenched, and the politics of the law manifests itself into judges promoting a perspective they believe to be correct rather than giving a fair hearing.  It’s hard not to have a political perspective on the law in an area where one practiced.  It’s certainly true of criminal law.

A better answer might be for the Supremes to have access to specialists in niche practices to advise on the nature of issues in areas where the justices aren’t familiar.  Putting the questions to Supreme Court clerks, kids who have experience in nothing but can reasonably anticipate bright futures and huge bonuses when they get scooped up by Biglaw, is hardly a substitute. 

What is clear, however, is that the justices aren’t supermen (and women) capable of knowing the most intimate aspect of every practice area on a constant basis.  Sadly, that’s exactly what we need of them, as the decision of the nine can make the legal world spin on its axis.

What’s the difference between an inmate whose “nose started bleeding” after he “banged his face against a wall” and one who was slammed against a bunk by police officers?  Nothing, in Cleveland.

From the Plain Dealer :

Supervisors rightly treated these inconsistencies as honest mistakes or minor contradictions, not deliberately false statements, Deputy Chief Hector Cuevas said this week in an interview.

“We’re not looking for perfection,” said Cuevas, whose assertions were supported by Chief Michael McGrath. “These are not English professors generating these documents.”

McGrath and Cuevas are not bothered by dueling versions of how a man’s nose began bleeding during a May 2010 struggle inside a jail cell. Two police officers involved said the man banged his face against a wall. Two guards said officers forced the man down on a bunk.

Officers are required to complete special forms after using nondeadly force, whether the action is as tame as twisting an uncooperative suspect’s arm or as serious as firing a Taser. And supervisors are required to investigate the incidents to ensure the actions were appropriate.

“I don’t know if they’re substantial or significant differences,” Cuevas said. “It’s not unusual that you have four different officers and four different accounts of what happened.”

For example, on an incident report last October, Patrolman Martin Lentz claimed he hurt his left elbow during a struggle with a man cited for jaywalking. But Lentz displayed his right elbow in a photo taken to document the injury. Supervisors did not note the discrepancy, records show.

Deputy Chief Timothy Hennessy said this week that Lentz specified the right elbow on other forms that were not included in investigatory files provided to The Plain Dealer. Hennessy believes Lentz made an innocent mistake and sees no reason why the officer would have lied.

The chief took issue with a recent finding that many people whom officers scuffled with were never convicted of a crime. Sometimes, he said, force is necessary to gain control of mentally unstable people who have not broken the law but are in need of medical attention. Other times, victims of domestic violence don’t pursue charges, so cases are dismissed, McGrath said.

“We take pride in who we are and what we do,” McGrath wrote in his e-mail. “I assure you that the Division of Police will continue to serve this community with respect and dignity.”

We have a constitutional right to be left alone.  We have a right to walk away.  We have a right not to answer questions or comply with demands.  Much of our jurisprudence is grounded in these rights, which the Supreme Court reiterates in justification of creating exceptions.  And how does that play out on the street?

This video, via Bad Lawyer, provides one of the best teaching tools around when it comes to showing the reality of police/citizen encounters.  First, the set up.

Maybe you recall this story, a Utah man was pulled over by the City of Bountiful, Utah police.  He got out of his car, unarmed, hands at his sides and implored the police officer to tell him why he was stopped.  The cops deployed the TASER on him,  mmmmmmmm . . . 8 or 9 or maybe 10 times.

“The attempt to elude capture is a direct challenge to an officer’s authority,” Justice Kennedy said. “It is a provocative and dangerous act” that “places property and persons at serious risk of injury.”

As  part of the perfect world some believe possible, the eradication of consumer products that have any potential to cause harm seems a wonderful and justifiable goal.  As with police, prosecutors and courts, the theory sounds wonderful; who wants little Johnny to scrap his knee and endure pain again? 

Walter Olson at  Overlawyered has made a cottage industry out of  explaining the insanity of trying to create this perfect world, of believing that government can somehow manage to  get the system right this time where it has failed so many times before.

It’s not that we shouldn’t want to protect children from serious harm, though only a fool would believe that we can create a harm-free world short of putting every child in a bubble.  Some risk is actually useful, and teaches children how to navigate a world as they mature, but the tragedy of a dead child is something no one wants to face. 

The problem with the Consumer Product Safety Consumer Improvement Act of 2008 is that the government can’t contain the collateral damage to the very businesses that enrich and facilitate the better aspects our lives.  Nancy Lord, Commissioner of the Consumer Products Safety Commissions concedes the point :

Several years ago, a child died after being carried in the company’s product.  The agency did an in-depth investigation of the incident but did not find a causal link or a reason to take further action and so notified the company.  In 2010, the company was re-contacted by a representative of the agency who stated that we were reinvestigating all infant deaths in slings.  According to the business owner, the CPSC representative told her that a recall of her product was likely but we needed to do an investigation first.  

In the meantime, she was told to immediately stop sale of the product until the investigation was completed.  In response, the company pulled down its website (it being primarily a web-based business) and immediately stopped sale of all its sling products.  A date was scheduled for a CPSC representative to come to the company to observe the destruction of the company’s product but the agency backed off until the recall became official.  Weeks went by with no further word from the agency.  The website remained shut down.  The company finally received an email stating that no recall would, in fact, be done.  The time between the initial contact and the email closing the investigation was approximately 8 months. 

The time frame, 8 months, is lightning fast in the context of government.  It’s like some perverse variation on the bible, where a minutes becomes a day, and a day becomes a year.  You know, how government employees work “very hard,” yet never seem to get anything done within a time frame that anyone else, in any other job, would considering anything remotely resembling timely.  But it’s close enough for government work.

So what happened?

Because this was a very small internet-based business with one type of product, it was not able to last with no sales through the prolonged investigation and was forced to close.  The employees lost their jobs and the company owner was forced to default on an SBA loan which she had obtained to expand her business. 

The business death penalty.  I realize that business is evil to many, though small business is not so evil.  I’m as inclined to hate the way business deal with consumers as much as the next guy.  But I also realize that without them, I’m back to farming the north forty and sleeping on straw mats.  We hate them for being scum, and need them because they’re are scum.  This is no homage to business, but a realistic recognition that putting them to death makes our own problems worse.

Yet the CPSC put this business to death, not because it deserved it but by attrition.  Lord talks about the lessons learned.

This incident raises a number of important issues.  For example, if we have not determined that a product contains a defect or is a substantial product hazard, are we justified in recalling it, based only on the fact that it is associated with a death or serious injury?  When is it appropriate to “require” a stop sale during an investigation?  Obviously, the answers to these questions need to be made on the basis of the facts in each individual case.  As the circumstances of this case demonstrate, an across-the-board inflexible rule does not make the most sense. 

It’s always nice to ask questions, but whoever said that knowing the question was halfway to finding a solution was wrong. It’s 3% tops.  Given that focus of the CPSC on safety (which would explain why the word appears in its name), the presumption will always be to shut business down, take no risk, let no child be harmed until their work it done.  Oh yeah, and let the agency suffer no embarrassment for making the wrong call.  Safety first. 

The only people who care about the business are the people who own or work for the business. We all care about children.  We all feel the horror of a tragedy.  To those who endure no loss from the excesses of government safety, exactly like the excesses of security, the government should take no chances.  We are only too happy to take no risks when it’s someone else who suffers for our caution.

This incident also illustrates the need for the agency, once it opens an investigation, to manage that investigation to conclusion in an efficient manner. 

This is where Nancy Lord proves, conclusively, that she does her job well.  She has kept every option for her agency open, while giving the appearance of recognizing that her agency’s delay and mishandling destroyed a business and harmed the lives of those who relied on that business.  Innocent lives harmed for nothing because the government couldn’t manage to do its job in an “efficient manner.” 

Efficient, of course, doesn’t mean what most people think it does. It’s not prompt. It’s not effective.  It is good enough to make the doer satisfied that he could not have done it better, quicker, more whatever.  It does not mean that it accomplished the task correctly within a required time frame so that it didn’t leave a trail of dead bodies in its wake. 

Lord’s concession that the CPSC failed isn’t a promise that they won’t put another business to death, but rather an admission that the process of doing its job is the death penalty.  Eight months is too long for a business to be dormant and survive?  What about two months?  What about two weeks?  Call a business out for being a danger to children and see how well it thrives afterward. There’s very little room to move here, but the duty of the CPSC and existence of an innocent business under scrutiny are incompatible.  Something has to give, and it’s not going to be government.

Granted, business has done more than its share to justify scrutiny. Greed is a powerful motivator.  So then have we, as nobody should need a warning label telling people not to touch a whirling buzzsaw with their tongue.  And if they did, chances are good that they couldn’t read the label anyway.  Our belief that we should be entitled to do whatever strikes as convenient at any given moment, with someone else to blame for our own moments of shocking stupidity, is no better than the corporation that manufactures the shiny death trap.

But the government solution, replacing sound judgment with misguided trust in the government to create our perfectly safe and secure world, won’t work either.  It doesn’t work with security. It doesn’t work with safety. It just plain doesn’t work.  We can stop buying crap from companies that sell needlessly dangerous products.  We can stop sticking our tongues against whirling buzzsaws. We can stop expecting government to get it right when they have never been capable of doing so before.

Our beautiful babies will skin their knees.  Some miscreant will mug an old lady for a fix.  There will never be a world that’s perfectly safe and secure for all.  And our lives will be better for it.

The entrepreneurial spirit lives in Americans, and maybe one day there will be a truly great idea that will change the way the law functions.  But this isn’t it.

Via the New York Times, which is curious that the Times thought this worth the space:

At that moment, a lawyer might help keep things from getting out of hand, asserting Miranda rights against interrogation or starting the bail process. But getting that lawyer is no easy thing, said Chris Miles, who co-founded a company, LawyerUp, to get lawyers on the case within 15 minutes.

“If I want a pizza, I can get a pizza in 15 minutes,” he says. “I can get a plumber in the middle of the night. Why can’t I get a lawyer?”

I can forgive the really bad analogy, as Miles isn’t a lawyer (or a professional analogy maker) , as there are some significant distinctions between lawyer and plumber.  Pizza, less so, according to the topping.

The notion of providing access to those who don’t know who to call when the emergency arises isn’t a bad one.  In fact, there are a lot of people who wouldn’t have the slightest clue who to call and would do well to have a lawyer there before they spill every bad thing they’ve ever done in their life.

The problem is that this isn’t the answer.

Some don’t like the name, LawyerUp.

Ralph J. Monaco, the president of the Connecticut Bar Association, seemed a bit ruffled in an interview when asked about the company, calling the name “so tasteless.” He said he fretted that it might create a relationship that an unscrupulous lawyer could use to gouge the new client.

The name is an awful lot better than some of the other ridiculous names of misbegotten ideas.  And sure, this could be used by unscrupulous lawyers, but that doesn’t make it a whole lot different than anything else an unscrupulous lawyer can do.  There are always ways to steal from clients if you’re so inclined. 

Antonin Pribetic, the Trial Warrior, has thoroughly discussed the possibilities for this to be another slime opportunity, and while some young lawyers may well do their best to use this as an opportunity to cut their teeth, far more will see this as a chance to get them while they’re in extremis and have no choice.  One call does it all, except they won’t have a clue who they’re getting or why.  But that’s the nature of the beast.

Who wants to be “on call” in the middle of the night?  No one I know, but I’m sure there are people hungry enough to be willing to do pretty much anything.  And if they happen to know what they’re doing and aren’t trying to scam people, it wouldn’t be a terrible thing to have lawyers available before the damage is done.

But it won’t work.  This concept is replete with structural problems that make it unfeasible.  What people need is a lawyer to show up at the police stations and precincts to stop people from yapping.  It can’t be done.  People don’t get to call when needed. Lawyers won’t be there when needed.  Whether they would be the right type of lawyer, say one with criminal experience, is a whole ‘nother matter, except it won’t matter because they won’t be there when needed anyway.

If anything, it raises the need to know who you might call if trouble arises beforehand, a level of preparedness that few bother with.  One never thinks one needs a lawyer until it’s too late.  Regrets don’t help. 

The proposed access to a lawyer, at $250 for an hour of time, whether that hour is of any use or not, fails to address the need of an emergent situation. 

Mr. Miles, who is not a lawyer, argued that it was the current system, not his company, that was open to abuse. “There has got to be something more fair than a pay phone and a phone book in a police station somewhere,” he said. The lawyers, he noted, had been vetted before being added to the list, and “I’d hire any one of these attorneys to represent me or my family.”

That there is a need here isn’t too far-fetched.  Whether this fills the need is another matter.  Miles is quite right that a phonebook in the police station isn’t the best way to find a lawyer when the need arises.  Nor is asking the other people on the bench for their recommendations. 

But Miles’ assurance that he’s “vetted” the lawyers who have signed up to work his service doesn’t bring much warmth.  Every scoundrel says this, and if it turns out Miles’ lawyers don’t do nearly as well as he suggests, it’s unlikely Miles will serve their time for them.  Heck, I doubt he will give them their money back.  I don’t see any satisfaction guarantee.

In a certain way, I try not to be unduly negative about every new idea that comes along.  It’s easy to be knee-jerk negative,and very much what people expect from lawyers, labeled as stodgy and mired in tradition.  The problem is that it isn’t easy to come up with something new that actually offers a meaningful service to people, once reasonably safe from abuse and reasonably designed to be effective.

And it’s all too easy to tout shiny, new ideas that offer surface appeal but can’t deliver, on the race to the bottom.

On the morning of June 17, 1971, President Richard Nixon, speaking from the Briefing Room of the White House, declared: “America’s public enemy No. 1 in the United States is drug abuse. In order to fight and defeat this enemy, it is necessary to wage a new, all-out offensive. I have asked the Congress to provide the legislative authority and the funds to fuel this kind of an offensive. This will be a worldwide offensive dealing with the problems of sources of supply, as well as Americans who may be stationed abroad, wherever they are in the world.”

From the New York Times.

This “war” has produced more casualties than any other.  This “war” has failed to achieve its goal.  This “war” has been far more expensive than any other in history.  There is no man, woman or child in America who has not suffered for this “war.”

Forty years later, it is still being fought.  And Americans continue to elect politicians and support policies to continue the “war.”  There are  law enforcement officers who feel strongly enough about the error of this notion to take a public stand against it.  There are  organizations dedicated to making Americans understand how the dots connect and price paid for the continuation of this “war.”

And yet, Americans believe that if we just continue to fight the same battle one more time, the outcome will be different.  Isn’t 40 years of failure enough to learn that President Nixon and his successors are wrong?

The Supreme Court, in J.D.B. v. North Carolina, another 5-4 ruling, held that police should “take into account” the age of a person when determining whether it’s appropriate for Miranda warnings to be given.  Lyle Denniston at  SCOTUSBlog explains.

Repeatedly citing “common sense” as its guiding light, a closely divided Supreme Court ruled Thursday that police must take into account the age of a youth they are going to question, in order to decide whether to warn the boy or girl about their constitutional rights — including the right to remain silent.   The Court majority, speaking at length about the vulnerability of children, insisted it was not abandoning the simplicity of the “Miranda warnings”  requirement.  Still, it did not answer all the questions that its ruling may raise in the minds of police officers dealing with a youthful suspect.  Answers may have to come as lower courts apply the new ruling, issued in J.D.B. v. North Carolina (09-11121).

Justice Sonia Sotomayor wrote the majority opinion and, as Denniston says, grounded this emanation of the Constitution in no less sound a foundation than “common sense.”  It’s her life as a former prosecutor in New York that gives rise to this muddle.

Basically, what the Court did was to add to the Miranda equation a requirement that, if an officer knows at the time the actual age of the youth the police are about to question, or a suspect’s young age would have been apparent at the time, the officer must take that into account in deciding for or against a rights warning.   The Court did not say at what young age warnings would have to be given, nor did it say just how the officer was to translate a conclusion about a suspect’s age into a decision to give — or not to give — warnings.

While Miranda warnings never had the effect the court assumed they would have, of sufficiently alerting suspects in custody to the really sound idea that they say nothing and ask for a lawyer, it didn’t work out that way.  Apparently, the Supremes have a peculiar understanding of human nature, where people feel confident enough to assert their rights to police, and police are sufficiently professional that they won’t hold it against them (or beat them senseless). 

But resort to “common sense” signifies the court’s recognition that children are particularly vulnerable to influence and coercion.  It also signifies that Sotomayor was incapable of coming up with any intellectually sound distinction between children, mentally challenged, delicate teacups, habitual drunkards and a host of other people who can’t seem to behave the way Miranda anticipated they would.  Actually, almost no one reacts to Miranda warnings the way the Supremes assumed they would. What a surprise.

And indeed, children are special.  Not that others aren’t special, but children are children.  If only the courts would remember this when they sentence them as if they were adults, but that’s another matter.  Children are taught to respect authority, to be cooperative with adults, that cops are their friends.  We rarely teach them proper etiquette for dealing with custodial interrogation.  Very few schools have a course in this, and few cover it in assemblies along with Mothers Against Drunk Driving.

So what’s a cop to do, now that he should take age into account?  Speak slower as he gives the Miranda warnings?  Smile more?  Use a calming voice?  He can’t change the words to less sophisticated language, as the nature of the warnings are such that courts frown upon too much interpretation.  Better to read it off the card. Always.

Just use common sense, Justice Sotomayor implores.  Without citation.

Common sense  is not my favorite phrase.  It’s not that I have anything against it, as much as it doesn’t exist.  It’s the way people explain things for which they can’t find logical words.  It’s some vague notion that we all carry around within ourselves under the misguided assumption that my common sense and yours bear something in common.  And maybe they do, and maybe they don’t, but we’ll never know.  We just chalk up our belief that our way is the right way to common sense, and know that we’re right and everyone who disagrees is wrong.  It’s just common sense.

What it is not, unfortunately, is guidance.  When the Supreme Court decides to throw a monkey wrench, even if it’s a needed monkey wrench, into the works of something that’s had a pretty stable history, it needs to do more than chalk it up to common sense.  It needs to provide guidance about what it is telling police to do, and the rest of us to do in return.  If the police give the Miranda warnings to children and obtain a confession, have they complied with this decision?  What if they didn’t and obtained a confession, but acted in recognition of tender years.  Then did they comply?  And how do we contend they wrongfully extracted a confession if we don’t know the right way to do so?

Sure, we can argue that it’s just common sense.  So will the prosecutor, since she’s entitled to enjoy the benefits of common sense like anyone else.  In fact, given that the prosecution has taken ownership of common sense years ago, arguing it on a motion to suppress seems so natural.  But what’s the judge to do, with everyone in the room arguing common sense.  No matter what ruling she issues, she’ll claim it too is common sense.

The Sotomayor opinion sought to counter the foreboding of the Alito dissent, insisting that the Court was not inviting police to look at any personal characteristic of “meekness” or insecurity other than young age, that it was not saying that a child’s age would be the decisive factor in every case where giving or not giving warnings was at issue, that it would not be a difficult thing for police to figure out that the suspect they are about to question is a child, and that the bottom line of the ruling was simply that young age could not be totally left out of the custody calculus.

“Common sense” and “community experience,” Sotomayor wrote, make it possible for adults to understand objectively what is to be expected of children in a variety of different situations, and so it is also possible to do so with “children subjected to police questioning.”

Really?  It seems we all know the answer.  It’s just common sense.

This neither an endorsement of Miranda in practice or an anti-child perspective.  Quite the contrary.  We could resolve the custody perception issue (another ridiculous bit of Supreme Court Justices’ assumption of how real people behave) by not allowing police to question a child without a parent or guardian present, and not allowing a statement by a child under 16 to a police officer under custodial interrogation to be admitted in court.

This is an endorsement of the Supreme Court crafting some procedures to go along with their common sense.  You know, just in case common sense isn’t quite as common as Sotomayor says.

Be a cop.  Via Newsday :

Whenever I give my presentation to corporate counsel and executives on preparing for the worst day of their lives, I use a photo from this guy in Texas to make a point.



Some people find this mug shot troubling, less because of how happy Tom DeLay looks than it’s use as a political commentary.  There are a lot of people who think DeLay was a pretty swell guy.  I don’t, but I didn’t use it because it happened to be a fellow who belonged in a mug shot.  It was just that, well, it was one fabulous image that just happened to be of Tom DeLay.

But now there’s competition.  Better still, competition from the other side of the aisle, permitting the point to be made without any unnecessary political overtones. 



Not only does Edwards project that image of cheerful confidence, but he doesn’t have that pale, washed out look we see in Tom DeLay’s mug shot.  Not that it’s DeLay’s fault that the police photographer used too much flash, but still.

The point is that the image of a high profile defendant will be used in every report that discusses the crime.  Taking a page from the marketer’s handbook, the defendant is branded with the image.  If he’s a corporate executive, it becomes the face of the corporation as well.  And it can appear a zillion times, with the voice over, “and John Smith, disgraced CEO of MegaCorp.,” ringing in the public’s ears.  It doesn’t matter how many television commercials appear touting MegaCorp’s humanitarian efforts feeding the starving children of some impoverished country.  The mug shot is what will be remembered.

It doesn’t matter that there are a dozen beauty shots used in glossy corporate brochures and press releases.  No one will seize upon an image of a defendant from better days when there’s a picture of the tragic figure to show.  And aside from radio, television and print are visual media.  They must have pictures.

Make it work for you.  Show that you are not afraid, not beaten.  Show that you are still the same person who won awards, spoke confidently, whether to industry groups or Congress, stared down candidates for high office with incisive comments. 

Of course, no image can please everyone, and  Lawprof Jonathan Turley thinks Edwards’ toothy grin is unbecoming.

In high-profile cases, clients will sometimes ask defense counsel how they should look in a mug shot that will be plastered across the media. There are different schools of thought, but John Edwards clearly went with the smiling “I Can’t Believe These Guys Are Doing This” shot.

On one hand if you look sad, you look guilty On the other hand, if you look happy, you appear callous.

I have serious reservations about this case and its legal grounding. However, I would have encouraged Edwards to adopt a more neutral look for his mug shot.

Does this picture make him look callous?  I don’t think so, but your mileage may vary.  The problem is that if the photo doesn’t come out quite the way you want it to, you really can’t ask the police photographer to do it again.  They hate it when you do that.  Rarely are they accommodating.

This puts the defendant in the awkward position of having one chance of getting it right.  It’s not always easy to do with posed shots, and few shots are more obviously posed than a mug shot.  Turley is a bit overly critical of Edwards, who might seem a bit too happy to be arrested, but looks an awful lot better than James Brown’s.



Or Nick Nolte’s.



And it’s never a good idea to emulate Kumari Fullbright’s mug shot.



She may not appear callous, but she does not look innocent at all.  Then again, there are no political overtones involved.