Proactive is one of those buzzwords that people love to toss around as proof that they’re ahead of the curve.  But then it comes to law enforcement, the sweet sound of “proactive” hides its real meaning: An investigation commenced without any reason to suspect wrongdoing.  Why wait?  We don’t need no stinkin’ reason.

The  New York Times reports that the F.B.I. has rewritten its agents’ guide, Domestic Investigations and Operations Guide, so that agents can commence investigations, which they delightfully call “assessments,” without any basis whatsoever to believe that the target has engaged in a crime. 

And if they can investigate, they naturally needs the weapons to do so.  No need to bother supervisors either. Not even the need to document what you’ve done, since that would create a record of who’s being investigated, and that could always get into the wrong hands. Go get ’em, tiger.

The Federal Bureau of Investigation is giving significant new powers to its roughly 14,000 agents, allowing them more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention.

Some of the most notable changes apply to the lowest category of investigations, called an “assessment.” The category, created in December 2008, allows agents to look into people and organizations “proactively” and without firm evidence for suspecting criminal or terrorist activity.

Under current rules, agents must open such an inquiry before they can search for information about a person in a commercial or law enforcement database. Under the new rules, agents will be allowed to search such databases without making a record about their decision.

There has long been an argument that law enforcement should get ahead of the curve, better to head ’em off at the pass than wait for the body to turn cold.  But most people would still assume that it takes more than innocently getting on some Fibber’s radar to become the target of a federal investigation.  You know, some itsy, bitsy actual reason to suspect that someone might be doing something, you know, wrong?

Under current rules, agents must open such an inquiry before they can search for information about a person in a commercial or law enforcement database. Under the new rules, agents will be allowed to search such databases without making a record about their decision.

Mr. German said the change would make it harder to detect and deter inappropriate use of databases for personal purposes. But Ms. Caproni said it was too cumbersome to require agents to open formal inquiries before running quick checks. She also said agents could not put information uncovered from such searches into F.B.I. files unless they later opened an assessment.

Quick checks sounds so innocuous.  Of course, quick checks can turn into longer checks, if something piques an agent’s interest.  Or, he can just be using the F.B.I. computers to make sure the parents of the boy his daughter is dating is, well, his kind of people.  A father can never be too careful.

The new rules will also relax a restriction on administering lie-detector tests and searching people’s trash. . . But soon agents will be allowed to use those techniques for one kind of assessment, too: when they are evaluating a target as a potential informant.

Agents have asked for that power in part because they want the ability to use information found in a subject’s trash to put pressure on that person to assist the government in the investigation of others. But Ms. Caproni said information gathered that way could also be useful for other reasons, like determining whether the subject might pose a threat to agents.

Two ironies at once! How cool is that.  First, one sentence to cover both polygraphs and picking through trash, as garbage investigations belong together.  But more importantly, the motivation behind authorizing agents to pick through garbage at will is to nail down “potential informants.”  In other words, rummage through the trash to find something embarrassing, humiliating, so that you can threaten to reveal it to persuade people to become rats.  Notice how well rats fits in with the other garbage analogies. As if it was made to fit together, just like the agent would do such a thing.

There are additional changes as well to facilitate internal spying, infiltrating groups without any files being opened, supervisors’ approval obtained, anyone knowing that an agent, of his own volition, has decided to do so.  The stuff of thrilling novels.

There is one new restriction, however, which will limit an agents authority to stick his nose under any tent he so desires.

At least one change would tighten, rather than relax, the rules. Currently, a special agent in charge of a field office can delegate the authority to approve sending an informant to a religious service. The new manual will require such officials to handle those decisions personally.

Thank the Lord the F.B.I. respects the sanctity of religious services, especially since they vote in large blocks.

Harvey Silverglate posits that we all commit three felonies a day, which I’ve since upgraded to three felonies by coffee break,  If you happen to piss off, or simply get noticed by, a federal agent, what are the chances that he might find something that he finds suspicious just fooling around in his computer and rummaging through your trash?

But isn’t it worth it to feel secure knowing the F.B.I. is being proactive?  And what do you have to fear?

If you already know what a strop is, you probably have no reason to waste the few minutes reading this post as you’ve already learned the lessons. 

Both my son and I were getting a bit scraggly, so we hopped in the car and went for a haircut.  We went to a place called a barber shop, which can generally be identified by a stripped pole outside.  Sometimes the poll swirls, and sometimes not, but it’s been the sign of barbers for generations.

Barber shops do not call themselves salons, and barbers are not stylists.  Barbers cut hair.  They used to perform surgery, but the law frowns on such conduct today.  Still, they have straight razors used to give a shave, whether on the front or back of the neck.  This is why they need a strop, as no one wants a dull straight razor. Some barbers are comedians, and use the old ketchup on the straight razor gag to get a laugh out of the guys in chairs. 

There are two reasons why there are guys in chairs in a barber shop.  The first is that they don’t take appointments. If you want a haircut, you come in and sit down, waiting for your turn in the barber seat.  You talk to the other guys waiting in chairs about news, politics and horse racing. This brings us to the other reason there are guys sitting in chairs.

Barber shops tend to be gathering places for guys who know a great deal about horse racing. They frequently have horse racing on the barber shop television, and there is sometimes a fellow there to whom the other guys in chairs say, $2 on Brilliant Sparkle in the 9th.  Horses have strange names. 

If you do not know much about horse racing, it’s best that you not strike up a conversation on the topic with the guys who yell out anything about “trifecta.”  They won’t appreciate it and will look at you askance.  It also tends to cause the barber to give you a lopsided haircut so that you won’t be happy and return.

Barbers do not wash hair before cutting it.  At most, they spray cold water from a bottle to make it wet, but they have no one who will rub any soapy stuff into a guy’s hair and rinse it out.  They keep their instruments clean by placing into a jar containing blue liquid.  It’s supposed to sterilize the combs, but no one really knows if it does.

Barber shops do not do manicures and pedicures.  No one wants another guy to take his shoes off in a barber shop.  No one.  But then, no ones wants another person screwing with his nails.  Nails grow exactly the way they are supposed to, without human interference beyond the requisite trimming.

If you are new to a barber shop, you tell the barber how long it’s been since your last hair cut so the barber will know how short to cut it.  If you want something special, you need to be specific, but also need to realize that if it requires more than three words, chances are that the barber won’t know what you are talking about.  Most haircuts can be described in three words or less.

Barber shops do not color hair.  If you don’t like being gray, then there are products at the supermarket to fix it.  Otherwise, you will leave with the same color hair you came in with, only shorter.

There will be a rack of magazines at the barber shop, but the magazines will all be quite old.  If they are news magazines, they won’t be very interesting.  There are no fashion magazines. There are no magazines with polls about one’s love life.

At the counter, there will be a cash register where the barber can ring up the charge for your haircut.  Charges tend to range from $10 to $15.  I paid $12 for my haircut, and gave the barber a $3 tip.  If the barber doesn’t cut you, then you should tip him.

Next to the cash register will be lollipops.  They are really there for the little boys who come in for their first haircuts.  There are special benches that are placed on the barber chair for little boys.  They don’t like them, but they will get used to them.  The lollipops make things better and usually stop the crying.  If a grownup wants a lollipop, he can take one.  No one will make fun of you for it.

Proper grooming for men is important.  Everything needed for a man to be properly groomed can be had in a barber shop.

A few days ago, Keith Lee of  An Associate’s Mind sent me a story about some 19-year-old kid, Tio Sessoms, from the San Francisco Chronicle. 

When 19-year-old Tio Sessoms was arrested in 1999 for the murder of a Sacramento minister, he told police that his father “asked me to ask you guys — uh, get me a lawyer.”

The officers responded by saying they would advise him of his rights and then see if he wanted a lawyer. They also told him two other suspects had already talked to them without lawyers and that an attorney would probably discourage him from giving them his version of events. And they denied his request to call his father.

After they gave him the Miranda warning of his right to remain silent and have an attorney present, Sessoms said he was willing to talk.

Naturally, he confessed.  If he hadn’t, there would be no reason to write about this.  Keith’s reaction was “seems pretty clear to me…”  And that’s why he’s writing a blog and not majority opinions. 

The trial court denied the motion to suppress the confession, and the 9th Circuit upheld the denial in a 2-1 ruling.

The court said police must halt their questioning of a suspect who clearly asks for a lawyer, but that Sessoms hadn’t done that. When he said, “Get me a lawyer,” he wasn’t speaking for himself but was just relaying what his father had told him, Judge Richard Tallman said in the majority opinion June 3.

In the questioning, which was recorded on video, Sessoms “never indicates any desire to transform his father’s advice into his own desire to have a lawyer present,” said Tallman, joined by Judge Johnnie Rawlinson. He also noted that the law requires federal judges to give great deference to the conclusions of state courts, like the one that upheld Sessoms’ conviction.

See, Sessoms wasn’t actually asking for a lawyer, but just repeating to the police what his father had told him.  You know, telling a story about family life.  “Dad said eat my broccoli, treat women with respect, ask for a lawyer;” that sort of thing.

No matter how many times it’s said, arrested folks just can’t seem to get it quite right.  The magic words are: I do not want to answer questions. I want to speak with my lawyer.  And then say nothing else, until another officer comes into earshot, whereupon you say the magic words again, and then shut up again.  But you already know this because you’ve heard this a thousand times from criminal defense lawyers.

In a dissent described as “indignant,” “Judge Betty Fletcher said Sessoms’ clearly asked for a lawyer.”  There’s nothing more heart-warming than an indignant dissent.  It’s the next best thing to winning.  The problem, of course, is that there are a thousand, no, a million, variations on the mantra, which are similarly clear to anyone inclined to support the invocation of Miranda by actual people that fail in case after case. 

Change a word, a verb tense, anything, and the likelihood is that what strikes any normal person as absolutely clear is suddenly not only unclear, but ineffective.  How, courts demand to know, should a cop understand “I think I ought to speak with a lawyer first” to mean that the persons wants a lawyer?  He’s not asking for a lawyer, but merely expressing his thought processes.  It’s entirely different.

The law requires a clear and unequivocal invocation of the right to remain silent and the right to speak with an attorney before questioning.  The problem is “clear and unequivocal” is clear and unequivocal, that the only way the courts will accept the invocation is if you use their mantra.  Anything less, or different, is subject to interpretation, and anything subject to interpretation isn’t clear and unequivocal.

So it’s not about whether it seems clear to you.  It’s all about the mantra; use it or lose it.  And just so you know, Keith, it seems pretty clear to me too, which is why I write a blawg and not majority opinions either.

“Sending a message” is a phrase heard with regularity in the legal system, whether from judges at sentence or prosecutors at arrest.  Sometimes the message is about not harming others or you will be caught, prosecuted and punished.  Other times, the message isn’t nearly as clear, or as proper.  Still, it’s a message.

Walter Olson writes about such a at Cato @ Liberty, one that may lack the panache of blood and guts that tends to get blood boiling, but one that’s particularly pernicious.

The Stevens case arose after the Food and Drug Administration investigated GSK’s marketing of the drug Wellbutrin. Lawyers, responding on behalf of the drugmaker, failed to furnish all the information the FDA considered itself entitled to, and federal prosecutors from the U.S. Department of Justice proceeded to “forage through confidential files” (as the judge later put it) in search of some sort of criminality to pin on Stevens, the team’s leader.

In her defense, Stevens said she had at all times relied in good faith on information provided her by company employees and had consulted and followed other lawyers’ advice on doubtful issues. Not good enough: the feds proceeded to charge her with six counts, including making false statements, obstructing justice, and concealing documents.

What makes this particularly troubling is the dynamic that drives financial and corporate criminal law investigations, where decisions are made by committee, invariably risk averse and perceived by all to be only about business (read, “money”) rather than right or wrong.  A group of people whose butts are not on the line want to know how much it will cost to make the problem go away, happy to throw the beloved and soon to be martyred former corporate lawyer or executive under the bus.

Say you’re an oddball in corporate America, a person with a few scruples and the guts to say “no” occasionally.  Whispering in the ear of the board members are some specialists working at a thousand lawyer firm, still bearing the stink of their last job at the Department of Justice, that they must capitulate, cooperate, get on their knees and beg the government for mercy.  There’s no other way. No one ever wins.

Then there’s someone who never sucked on the government teet saying,

but we did nothing wrong. Nothing. We must stand up to the demands of prosecutors who are clueless about our corporation, our industry, and who want to dictate corporate decisionmaking.  This is the time to take a stand.

Outside counsel shudders in fear.  Board members cower in the corner.  Accountants crunch the numbers.

Lauren Stevens, former house counsel at SmithKlineGlaxo, showed resolve.  She did her due diligence and arrived at the conclusion that displeased the government.  She said no. She conducted an in-house investigation and concluded that there was no smoking gun proving her employer a raging criminal enterprise.  

Prosecutors faced turned dark red.  No one says no to them.  No one.  Time to send a message.

The flimsiness of the DOJ’s case appears to have disturbed Judge [Roger] Titus, a law-and-order-oriented jurist who had never ordered a bench acquittal in his seven years as a federal judge. The confidential documents on Stevens’s work, he wrote, “show a studied, thoughtful analysis of an extremely broad request” from the FDA and were based on “good faith,” not an attempt to assist a client in fraud.

Judge Titus refused to let the case go to the jury.  What surprises people is that harsh law-and-order judges tend to get particularly angry with the government when they conclude that a prosecution is complete garbage.  Prosecutions like that make judges feel dirty for otherwise loving the government too much, and when the case goes far enough over the line, prosecutors see the snarl that is almost always directed only at the defense table.  But don’t get too teary eyed about it, as a case has to be so god-awful-bad, out of the ballpark garbage, to get a rise. 

So Judge Titus sent a message of his own:

Titus said Stevens “should never have been prosecuted” and that allowing the case to go forward to a jury “would be a miscarriage of justice.”

Though the message seems clear enough on the surface, it somehow failed to sink in.

After the stunning dismissal, the U.S. Department of Justice [via no less a personage than Lanny Breuer, chief of the criminal division, to a meeting of corporate lawyers] was quite unapologetic, a top official suggesting that its prosecutors intended to do nothing differently in the future. And unfortunately, there are few incentives for them to learn any lessons.

How could the message fail to come across loud and clear?  It’s a trick question.  The message was, indeed, heard, but it wasn’t Judge Titus’ message.  It was Breuer’s.

Lauren Stevens lost her job, was prosecuted and went to trial, wondering every day whether she would end up wearing a jumpsuit at Club Fed.  She was disgraced and vilified.  It cost a bundle.  And likely destroyed her life.  Whether she can recover from this prosecution has yet to be seen.  And she won.

Sure, there a couple of prosecutors whose cheek stings a bit from the smack, at least for a few minutes. But they got their paycheck every two weeks and went home to dinner with their families every day during the prosecution and trial.  On the day of dismissal, they left court sad and, after a beer, had meat loaf for dinner (I’m just guessing about this part). 

Corporate counsel got the message.  Even when you do nothing wrong, you lose.  When the government comes a’calling, turn around, bend over and let the government have its way with you.  No in-house lawyer wants to sacrifice his life, his family on the alter of “justice.” 

Message sent.  Message received.  Lauren Stevens was just doing her job, with courage and integrity.  The message is that when the government wants to destroy the life of an innocent person, it will.  She can beat the rap, but she can’t beat the ride.  That’s the message.

Every once in a while, something happens in the blawgosphere that wreaks havoc with the smooth process that allows its participants and onlookers to feel the unfettered sense of belonging.  It happened this week. It’s going to happen again. Now.

After my post, A Book Unreviewed: Norm Pattis, a few people expressed some sadness that our little group of criminal defense blawgers couldn’t just get along, couldn’t just write about the evils of police abuse, prosecutorial misconduct and judicial error.  We are all against these bad things, so why battle amongst ourselves when we can focus our anger toward the things that deserve it, demand it.

Why indeed?

This isn’t another post about Norm. He reduced himself to an irrelevancy when he slinked away after his fabricated world crumbled around him. If there was any question, it’s now resolved.  It’s about everyone else.

One of the things this corner of the blawgosphere does, and does well, is highlight the wrongs that happen in the criminal justice system, the people who do them and the things they do.  Before one has the right to challenge others, one must choose to maintain personal integrity.  We cannot lie about what happened or we are forfeit any claim to challenge others. This can be brutally painful at times, compelling us to write things we would prefer not to write, but if we shirk this responsibility, we are unworthy of challenging others.

Can we call someone else a liar while being a liar?  Can we challenge the falsehoods perpetuated by others while we perpetuate our own?  Can we expect others to believe us when we know what we say to be unworthy of belief?  I don’t think so.

Sure, there will always be people who calls us names, tell us we’re wrong, stupid, deceitful.  But it’s a big internet and it’s impossible to satisfy every perspective, every agenda, every level of intelligence or sociopathy.  Mistakes are made.  Judgment calls are blown.  It’s not about perfection or about winning every vote.  It is about integrity.

Without integrity, we are nothing.  We are them.  We are as bad as all the malevolent people.  We are as bad as the people who do malevolent things.  We have no legitimacy in challenging or questioning, in highlighting or noting, in speaking out against wrong.  Because without integrity, we too are wrong.

This is a choice that I, and other blawgers, are compelled to make every day.  How easy it would be to twist a few details, distort a fact or two here and there, recast a quote to make it better fit our views, and then go to town.  Just leave out the link, omit the name and build in plausible deniability that we are dissembling.

Being a blawger, and writing stuff that appears publicly, exposes us to challenge as much as it does the target of our writing.  And it should.  We’ve talked about blawging as peer reviewed, where our fellow criminal defense lawyers, prosecutors, judges, cops, and anyone else with sufficient interest can read what we write and opine, whether here or elsewhere.  We lay it on the table, and you do with it as you will.

When an ugly issue arises within the community, when peer review turns unpleasant, however, smiles turn upside down.  Why can’t we just ignore it, get along, band together to fight the common enemy?

Because we are no more entitled to enjoy situational integrity than they are.

Because we cannot attack others for unclean hands if ours are dirty as well.

I realize that this upsets other blawgers and some readers.  It would be so much easier to pretend it doesn’t happen and let things go back to the way they were before.  If no one says anything, then we can smile again and think only of the things we want to think, the things that make us happy.  My “vitriol” was not appreciated by many as it caused a disruption in the force.  Why, oh why, can’t I just save my vitriol for our common enemies and preserve the harmony of the blawgosphere?

I deal with reality, for better or worse, right or wrong.  It’s never been my way to smooth over the unpleasant rough spots in order to get along and make others like me.  And I am not sorry for making others uncomfortable by speaking of unpleasant matters. 

In furtherance of my belief that the integrity of the blawgosphere, of Simple Justice, of me, matters, a decision has been made.  For those who find situational integrity acceptable, and are happy to overlook deception in this corner of the blawgosphere, who don’t care to scrutinize ourselves with the same care we do our common enemies, you are no longer welcome here.  I can’t stop you from reading, if that’s your choice, but I will no longer engage with you.  If lying doesn’t matter to you, then we aren’t going to get along.

Some of you won’t care, which is your choice.  Some of you will tell me that I’m wrong, unduly harsh, maybe even selfish.  Some will tell me I’m pompous and arrogant to think anyone gives a damn what I think, either of them or what they do.  Some will blame me, following their heart instead of theri mind. This may all be true, but what I do is my call.  And this is my call. If it makes me unpopular with a certain crowd, so be it. 

Sometimes the force needs some disrupting.  When integrity is at stake, disruption seems a small price to pay to clean things up.  We are not a bunch of liars.  We are not enablers of liars.  We do not acquiesce in lying.  And because of this, our ability to bear up to scrutiny, we can say what needs to be said and do so with honor.  And if you can’t do this, or won’t do this, then you don’t belong here.

And now, to lighten up the mood a bit without sacrificing the point . . .

From CBS Boston :

Last Saturday, one of Wendy Bordeleau’s two cows got loose from her 30-acre farm.

Surprisingly, this problem isn’t as common as it used to be, even in Pelham, New Hampshire.  Even so, it was a cow.  The report doesn’t state whether it was a nice cow or a cow with a prior criminal history.  Just a cow.  Perhaps the cow took the New Hampshire state motto seriously.

About a dozen people were trying to coral 800-pound Houdini across busy Mammoth Road when police showed up with their tasers.

“They said ‘We’re going to tase her, we’re going to taser it,’ and the group was pleading with them. Everyone was kinda yelling, ‘Please don’t taser the cow, it’s only going to make it worse,” she told WBZ NewsRadio 1030.

The cow said nothing, infuriating police, who then “zapped” Houdini four times. 

 
Mugshot: Houdini the cow. 

The tazing had no apparent affect on Houdini, likely because she* was covered in a thick, protective hide, because he was a cow.  Still, local police are bracing for a federal lawsuit for excessive force, fearing claims that the cow will require therapy.  Cow therapy is very expensive.

Sgt. Mike Pickles told WBZ he made the right decision.

“It blew through a wooden fence right next to me. That was the time a decision was made. I have to do something to try and control this animal,” he said.

“As a matter of public safety, that is a better option than just allowing things to happen and people get hurt.”

According to sources close to Pickles, known to Pelham’s cow community as Sgt. Mike, he couldn’t have lived with himself had the cow hurt a child.  Preparing for the worst, calls were made to assemble the Pelham Police SWAT team, but delays in arrival caused by a plague of student loan nonpayments prevented timely deployment.

The cow made it home safely and, at last check, was eating grass.

Fortunately, no child was harmed.  Unfortunately, local residents were constrained to have pizza for dinner rather than steak.  Houdini was satisfied with grass, which was duly noted in the police use of force report.

By all accounts, Wendy Bordeleau was not pleased with the police zapping Houdini and has unfollowed Sgt. Pickles on twitter.  “If it happens again, I’m blocking him,” she said.

H/T Doug “Keyboard Cowboy” Cornelius “If the cow won’t obey, then it must pay.  Oh yes, it must pay.”

* I’m informed by Turk, whose knowledge of bovines far exceeds mine, that gender neutrality is inappropriate in cow posts. My error has been duly corrected.

Jonathan Turley posts about yet another TSA travesty, this time involving a 29-year-old man with the intellect of a two-year-old.  Finally, someone the TSA agents can outreason, right? 

This time the incident occurred in Romulus, Michigan where a family was going to Disneyland and found two denizens waiting from them at the airport from the Unhappiest Place on Earth. Dr. David Mandy was walking his 29-year-old severely mentally disabled son through security when two agents spotted him.

Drew [has] difficulty understanding orders to place his feet on the yellow shoe line and follow the TSA agents’ orders. When Dr. Mandy tried to explain his son was severely mentally disabled the TSA agents told him to back off and that they would handle the matter. They were concerned with his adult diaper and kept instructing him to rub his hand up the front and back of his pants

They then turned their attention to a small plastic toy hammer and ball that Drew carries for comfort. As with children, Drew clings to the toys for a sense of security and has had the toys for years. One agent tapped it on the wall and reportedly said “See, it’s hard. It could be used as a weapon.”

The agents made the family surrender the six-inch hammer despite the trauma to Drew. The agents were convinced that Drew could try to take over the plane with his six-inch toy hammer. Unable to mail the hammer (a common and meaningless suggestion by TSA), they had to allow the agents to throw it out.

So they beat up on a mentally challenged young man.  Apparently, there were no babies or wheel-chair bound women to grope.  Got it. 

Drew Mandy’s life likely wasn’t one that anyone would envy.  Certain aspects, his confusion in a world that made no sense on its best day and his grasp of toys that soothed his world with familiarity.  What cretin would even consider adding to the misery for no better reason than he could?

But another story of TSA monkeys doing pointless harm to a vulnerable person just adds to the long list of reasons why our desire for the appearance of security at the expense of reason isn’t really such a great idea.  Sure, we need to remember that this is still happening, that our government’s enjoyment of control over our personal freedom and integrity continues unabated and just as stupidly as ever.

But there is another part of this story that strikes me as overlooked, and worthy of some scrutiny. From the  Fox News report of the incident.

Dr. Mandy claimed they asked Drew to place his feet on the yellow shoe line, something he didn’t understand. They proceeded to pat his pants down, questioning the padding which was his adult diapers. When the agents asked Drew to take his hand and rub the front and back of his pants so they could swab it for explosives, his dad stepped in and tried to explain that Drew was mentally challenged.

“They said, ‘Please, sir, we know what we’re doing,'” Mandy said.

And Drew Mandy’s father stepped back and let the TSA agents have their way with his son.

It just killed me to have to throw it away because he’s been carrying this like for 20 years,” Mandy said.

It “just killed” the father?  What about the son?  Whether it’s the parent of a mentally challenged young man, or the mother of a baby, at what point does a parent decide not to back away and acquiesce in the abuse of their child?  Apparently, the tipping point is when told to do so by anyone wearing the uniform of a government agent. 

No doubt Dr. Mandy, an osteopath specializing in pediatrics per a quick search, has spent a good part of his life helping his son to enjoy life as best possible.  He likely a wonderful, caring father who has shown love and devotion to Drew, and that’s great.

But some parents would rather take a bullet between their eyes than allow anyone to do harm to their child.  This situation hadn’t escalated to the point where bullets were in the offing, and yet Dr. Mandy complied with the instructions of his TSA handlers.  Was there something about them to suggest they really did know what they were doing?  It’s hard to believe.

So why did he just back off and let the TSA do as they pleased?  Where is the outrage?  Where is the will to tell the blue-shirted monkeys that they don’t have the first clue what they’re doing, that they are doing pointless harm to your child and that you are not going to be compliant sheep?

The TSA conceded afterward that this incident pointed out a failure in the training of their monkeys in dealing with the mentally challenged. 

“Very polite. Very apologetic. He was embarrassed. He (said) we have to review how we deal with special needs individuals. Obviously, he (said), we’re doing a terrible job,” Mandy told us. “It made me feel that there is still hope, that there is still justice and that there’s still somebody who listens to people’s problems (in) the federal government.

Or maybe the response allays Dr. Mandy’s guilt for having abandoned his son to these monkeys without even the pretense of a fight.  Whoever wrote the TSA’s letter in response was far smarter than most, realizing how easy it is to assuage the sheep with promises that it will never happen again.  And if it does, who cares, as it’s not like these sheep-parents will do anything about it.

One of the most fundamental premises of laws prohibiting criminal conduct is that they give fair notice to potential violators of the conduct that’s going to land them in big trouble.  Some laws are fairly good about that, such as intentional murder.  Others not so good, such as depraved indifference murder.

But one law, the Armed Career Criminal Act, is really awful. In its effort to leave no potential bad guy unscathed, the law is so vague and overinclusive as to those people whose compliance with it is demanded clueless as to its terms.  How do I know this?  Because it requires a Supreme Court decision, time and again, to decide what is and what’s not covered, what is and what’s not a “violent felony.”  And so it did again in Sykes v. United States.

And who better to call it what it is then Nino Scalia, via Jonathan Adler at Volokh Conspiracy :

Shameless spin is nothing new when it comes to sentencing, or re-sentencing, as is the case for Lord Conrad Black.  Having served 29 months of his sentence for honest services fraud, only to learn that there is no such crime, and then learning that he’s still screwed and facing resentence for the offenses that remain, the time has arrived to crank up the sentencing spin machine.

The government couldn’t claim that Black was a bad prisoner in the sense that he beat others, maintained a secret cache of contraband caviar or refused to get his GED.  What to do?

Prosecutors are pointing to allegations that onetime media mogul Conrad Black treated inmates like servants and had a supercilious attitude in an effort to send him back to prison.

A unit manager said Black had an entourage of inmates who performed services for him, such as ironing his clothes, the Tribune says. Some inmates saluted Black every time that he taught GED classes. While he was teaching, an education specialist said, Black “projected the attitude that he was better than others in the class, both faculty and students.”

How many points are added for a supercilious attitude, you ask?  I checked the attitude table and came up empty.

Every institution develops its own brand of society, and prisons are no exception.  The government’s effort to use hyperbole and characterize prison society in terms of life on the outside is sheer, unadulterated nonsense, a test of whether anyone, most notably the judge, is so ignorant of prison life as to buy their spin. 

Having never spent more time in a prison than necessary, I’m no expert on prison life.  But Bad Lawyer knows a thing or two about life on the inside, and he explains.

Seriously, having a few months of personal experience with Club Fed, I can assure you that Conrad Black was not treated specially.  They don’t do that.  Everyone is treated like crap.

And when you live with hundreds of inmates, many of them without any access or resources to enable commissary or phone expenditure you encounter every imagineable hustle–including, inmates who do laundry, provide ironing or orderly services for one another in exchange for commissary purchases, i.e. candy bars, vending debit cards, stamps, and as I blawged before “cans.” 

It’s offensive that federal prosecutors would attempt to massage this sort of thing into a claim that a defendant (who to some extent was wrongfully imprisoned) was living the high life and now really deserves punishment. What a crock!

In prison, one does what one has to do to survive as best one can.  For some, that means kissing up to those who might be in a position to help you out.  To others, that means using whatever resources are available to maintain one’s physical and psychological integrity.  So Lord Conrad Black didn’t become a weightlifter to kill the time, or perhaps get a few prison tats to be one of the gang (pun intended), comes as no surprise. 

There’s no infraction associated with surviving prison.  There’s no adjustment for not having an attitude that pleases the boys and girls of the U.S. Attorney’s office, though truth be told they would never have suggested something so ridiculous as a supercilious attitude if they had anything real to latch on to.  They just couldn’t go back into court for resentence conceding that Black was a model prisoner and had to manufacture something to complain about.

It seems that the government has forgotten that Conrad Black wrote a scathing editorial for Canada’s National Post when he was allowed out on bail following the Supreme Court’s Skilling decision about his prison education.  But I haven’t forgotten.

The Mafiosi, the Colombian drug dealers, (including a senator with whom I had a special greeting as a fellow member of a parliamentary upper house), the American drug dealers, high and low, black, white, and Hispanic; the alleged swindlers, hackers, pornographers, credit card fraudsters, bank robbers, and even an accomplished airplane thief; the rehabilitated and unregenerate, the innocent and the guilty, and in almost all cases the grossly over-sentenced, streamed in steadily for hours, to make their farewells.

It had been an interesting experience, from which I developed a much greater practical knowledge than I had ever had before of those who had drawn a short straw from the system; of the realities of street level American race relations; of the pathology of incorrigible criminals; and of the wasted opportunities for the reintegration of many of these people into society. I saw at close range the failure of the U.S. War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42% of Americans have used marijuana and it is the greatest cash crop in California.) A trillion dollars have been spent, a million easily replaceable small fry are in prison, and the targeted substances are more available and of better quality than ever, while producing countries such as Colombia and Mexico are in a state of civil war.

I had seen at close range the injustice of sentences one hundred times more severe for crack cocaine than for powder cocaine, a straight act of discrimination against African-Americans, that even the first black president and attorney general have only ameliorated with tepid support for a measure, still being debated, to reduce the disparity of sentence from 100 to one to 18 to one.

For a guy with a supercilious attitude, he seems to have gone awfully far out of his way to stand up for them, to challenge the power, to call out the failure of the system.  If this was a man who played Lord among prisoners, you can’t tell it from the risk he took in angering the government by asserting that the system stinks.  Why would the Lord risk pissing off power if he cared nothing for the little people who ironed his clothes and saluted him?

As Bad Lawyer says, it’s a crock.  There are lots of crocks in the process, from the day of arrest to the denial of bond.  From the allegations during trial, where a completely neutral telephone conversation asking how the weather is miraculously converted into an order for kilos of heroin, as interpreted by some “expert” agent who knows far more about what drug dealers mean than any actual drug dealer I’ve ever met.  And at sentence, an unpleasant glance is turned into a threat of a prosecutor’s life, as if defendants should throw loving looks toward the people who have destroyed their lives with lies.

Every once in a while, rarely more than three or four times a day, the government comes up with a position that’s so facially absurd as to test whether judges, and the public, are so gullible that they will believe any spin proffered.  These claims about Conrad Black are such a position, reflecting not some “bad attitude” on Black’s part worthy of consideration by a court in re-sentencing him to a more severe term of imprisonment, but our willingness to blindly accept the government’s nonsense, no matter how ridiculous.

In prison, everyone is treated like crap.  Anyone who doesn’t make the best of it is either a fool or dead.  There is only one rule that matters in the high society of prison: Do what you have to do to survive.  No one should be punished for surviving.

There was a saying that parents told their daughters back when I was a kid.  Nobody wants to buy the cow if you give the milk away for free.  Whether this is still advice commonly passed down is unclear, although I never told this to my daughter.  Have a good time was always what I said, knowing that she never pushed the envelope despite my admonitions.  Where did I go wrong?

But Seth Godin, of the marketing Godins, offers a troubling observation.  First, history:

How about giving it away to help the idea spread?

The simplest old school examples are radio (songs to hear for free, in in the hope that someone will buy them) and Oprah (give away all the secrets in your book in the hope that many will buy.)

There’s a line out the door of people eager to spread their ideas, because in a crowded marketplace, being ignored is the same as failure.

As the free-only cohort grows, people start to feel foolish when they pay for something when the free substitute is easily available and perhaps more convenient.

There’s a growing disconnect between making something worthwhile and getting paid for it. The digital artifact is heading toward free faster and faster, and the inevitable leap to a paid version of the same item is going to get more difficult.

Creators don’t have to like it, but free culture is here and it’s getting more pervasive. The brutal economics of discovery combined with no marginal cost create a relentless path toward free, which deepens the gap. Going forward, many things that can be free, will be.