The  acquittal of former cops Kenneth Moreno and Franklin Mata for rape does not sit well with some.  It’s not that few people bought their story, that their drunken charge enticed them by dancing naked, except for her bra.  It’s not that people bought the claim that Moreno just “snuggled” with her, maybe kissed her on the shoulder.  Nah.

It’s that in the hierarchy of things hated, rape is a sacred cow.  If a women says she was raped, then she was raped (unless she later admits she wasn’t raped, but then we start screaming “lalalalalalala” so the offensive idea can’t be heard).  The acquittal sparked outrage.  By definition, an acquittal couldn’t possibly mean that despite the stench of guilty cops, the proof fell short.  Except in this case, it did.

Howard Wasserman at  PrawfsBlawg raises the specter of one of the most dreaded weapons in the prosecutors’ arsenal, the nuclear option for prosecutions that fail to achieve the societally demanded outcome. 

Last week’s acquittal of two New York City police officers on rape charges (they were convicted on three counts of official misconduct, resulting in their immediate firing and some further criminal punishment) has sparked outrage and protests. The victim still has a multi-million dollar federal civil rights action against the officers and the city.

But might the Justice Department also bring a federal civil rights prosecution against the officers? Successive or dual federal prosecutions based on “substantially the same act(s) or transactions involved in a prior proceeding” are governed by DOJ’s Petite Policy, which lays out three requirements for a federal prosecution:

[F]irst, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact.

The Petite Policy isn’t law, but rather the Department of Justice’s internal guidelines for when it should exercise one of the law’s most dreaded and disingenuous weapons: Dual Sovereignty.  It smacks of a violation of double jeopardy, but the caselaw says otherwise.  It’s one of those things that only judges and lawyers can accept; by common definition, the construct of dual sovereignty is little more than a hypertechnical rhetorical trick to circumvent the constitutional prohibition against trying a person twice upon the same facts.

There is a real purpose to the policy, to overcome the situation where a local prosecutor takes a dive in a case against someone, assuring acquittal (and thereby precluding penal consequences) against someone when there is strong evidence of a heinous crime, but where a conviction is locally unpalatable, whether politically or socially.  The acquittal of a “respected” Klansman for the lynching of an “uppity” black man is the paradigm.

Wasserman talks about the prosecution of Stacey Koon and Laurence Powell following the Rodney King beating as the “most famous example” in his lifetime.  By limiting his point to his lifetime, he omits the best argument for dual sovereignty, and relies instead the less convincing application of the government’s rationale.

The second element is where a lot of the action occurs. Under the policy, federal interests have presumptively been served by a state prosecution, regardless of outcome. That presumption may be overcome based on a number of factors, including indications that nullification occurred in the prior prosecution or where the state prosecution failed on an element that would not have to be proven in the federal prosecution. The presumption also may be overcome, regardless of the outcome in the state prosecution, where:

first, the alleged violation involves a compelling federal interest, particularly one implicating an enduring national priority; second, the alleged violation involves egregious conduct, including that which threatens or causes loss of life, severe economic or physical harm, or the impairment of the functioning of an agency of the federal government or the due administration of justice; and third, the result in the prior prosecution was manifestly inadequate in light of the federal interest involved.

The nullification point, one that current adherents of the cause of jury nullification often forget, relates back to the Klansman example, where the jury of whites won’t convict one of their own.  The second, where the state prosecution includes elements not needed in the federal prosecution, thus allowing a successful second prosecution solely because it’s just plain easier to convict, is particularly noxious.  Not enough proof? Eliminate the troublesome elements. Easy.

The third argument to overcome the presumption that a state prosecution vindicated federal interests, however, is where the Petite Policy is reduced to a joke.  The language aside, it simply means where the feds decide that they really, really want to convict.  Where the “result” was “manifestly inadequate” sounds better, but means the same thing.

So is this an appropriate case for a successive federal prosecution?

This was a high-profile state prosecution that drew a lot of media and public attention. There is visible public anger over the verdict . . .

DOJ obviously wants to avoid the appearance that it brings subsequent civil rights prosecutions simply because the media pays attention to a case and enough of the public believes a state court verdict was wrong and expresses that belief loudly enough. But there are serious federal interests in gender equality and in stopping police misconduct that may justify a prosecution here. And because the case is something of an outlier on its facts, it could be a flashy-enough prosecution to give the federal government “more bang for the buck” in civil rights enforcement.

And this is what’s wrong with the Petite Policy and the concept of duel sovereignty.  Manhattan District Attorney Cy Vance was right to bring the case to trial, there being enough evidence to try the case and put it in the hands of a jury to decide.  It was fought hard.  Even the brothers in blue didn’t back up Moreno and Mata, as they would have if they had simply raped some black guy with a plunger.  And yet, the jury acquitted because the evidence fell short of proof beyond a reasonable doubt. 

Sadly, the defendant police officers may have gotten away with a horrific abuse of their office and authority.  Happily, a jury decided the case not on the anger and disgust of the allegations, but on the lack of evidence of guilt, despite the stink.  That’s how it’s supposed to work.  For those who balk at the fact that the system always seems to work better when it’s a cop in the dock, another unfortunate reality, the answer isn’t to be unfair to cops, but to be more fair to all.

There may well be some great headlines available for the United States Attorney for the Southern District of New York, Preet Bharara, for trying to appease the the blood lust, but there is no legitimate basis to prosecute Moreno and Mata a second time.  The Big Apple tried hard to convict the cops for rape and failed.  There is no legitimate justification for the government taking a second bite.

It’s bad to be a psychopath.  Criminal defense lawyers, for all our commiserating with our clients, the unfairness of the system, and our empathy, the reality is that some of those who commit crimes, and yes, some defendant do indeed commit crimes, are psychopaths.  Represent one and you can understand why it’s a bad thing.

Psychologist Robert Hare created a test, called the PCL-R, to determine who is a psychopath.  From all reports, the test is a good one, though I’m not qualified to tell one way or the other.  And so, its widespread use and acceptance within the criminal justice system should similarly be good, right?  Not necessarily.  NPR interviewed Hare, who explains his concern over the use, and abuse, of his test.

SPIEGEL: Hare began collecting these interviews in the 1960s, at a time when research on psychopaths was considered both obscure and basically irrelevant to understanding crime. You see, at that point, Hare says, there was a very clear consensus about where crime came from. Criminals were made, not born.

Dr. ROBERT HARE (Psychologist/Creator, PCL-R): In those days, social factors, environmental factors were the explanation for all crime. When you’re born, just a blank – you’re a blank slate and I can train you to be anything you want.

SPIEGEL: But Hare didn’t really buy this. He thought inborn personality was important. He says, as a psychologist, when he looked at people he just saw these incredible differences in temperament.

Dr. HARE: Differences of impulsivity, differences in the capacity for empathy, for feeling guilt. As, you know, we have individual differences in intelligence, well, we should have individual differences in the personality traits that are responsible or related to crime.

What Hare found was that some people were, well, different.

Dr. HARE: It’s sort of like trying to explain to a colorblind person what the color red is. Can we teach a colorblind person how to see red, what red is? You can have all the dictionary definitions you want, but this person will never quite get it.

And so he developed PCL-R, which could be used to predict who was likely to continue to engage in criminal behavior, certainly a very important piece of information in determining who should be released from prison and who was a psychopath.  What could go wrong?

When the test found its way into the hands of prison psychologists, its reliability suddenly dissipated.

Daniel Murray did a study of the real-world reliability of the test, and found definitive discrepancies.

Mr. MURRAY: You know, we don’t know if people giving it in the field have received formal, rigorous training or if they’ve just sort of bought the manual and maybe read a couple papers and decided they’re going to start using it.

SPIEGEL: But Murray thinks it’s also something else. He says that in his study, psychologists hired by the prosecution consistently scored higher than psychologists employed by the defense, probably, Murray says, because they’re being paid for those opinions, and that money influences them.

A tool is only as good as the mechanic using it.  Whether it’s the uncalibrated radar on the side of the police cruiser, or a sophisticated psychological test that will label a person a psychopath and keep him imprisoned forever, the human factor is always a weak link.  Our adoration of science, for taking the onus off of people to make hard decisions, allowed this tool to become a weapon in the hands of the wrong people.  What a shock.

Of the many tools available to provide what judges and parole boards will latch onto as absolutely conclusive, a test that “proves” a defendant to be a psychopath is about as destructive as it gets.

Mr. HARE: Empathy is highly genetic in origin, modified and shaped by the environment, of course. But if you’ve got an adult who has virtually no empathy in the normal sense of the term, you’re not going to send him to school to learn empathy, Empathy 101. It’s just not going to work.

SPIEGEL: And when you think about criminals in this way, as people who are almost genetically predisposed to crime, you are much less likely to invest in their rehabilitation than if you say their acts as a product of unfortunate environmental circumstances.

This is why it’s so important to figure out if bias and bad training are affecting Hare’s test to the point that it is potentially mislabeling people. After all, once someone is labeled as a psychopath, what can you do with him? Nothing but lock him away.

There are psychopaths out there.  They are monumentally dangerous, because they are incapable of comprehending harm to others the way others do.  If you have never had the pleasure of sitting in the same room as one, then you can’t begin to appreciate the seriousness of this emptiness where normal human empathy should be. 

But a big red rubber stamp that says “psychopath” in the hands of some prison-paid psychomonkey is a perversion of the problem.  The net effect is that their testing cannot be presumed reliability, and Dr. Hare’s methodology in their hands is just another weapon to be used against those people the government doesn’t like.

The problem isn’t the test, but its abuse in the wrong hands.  And once someone is labeled a psychopath, it’s essentially impossible to change.  After all, tests can’t be wrong and the defendant is crazy.

H/T Dissent from Pogo was Right

In a New York Times Op-Ed, Brigham Young lawprof Shima Baradaran claims that  her research shows how courts can safely release 25% more pre-trial detainees, thus significantly reducing jail overcrowding.

The risk of release can be largely reduced by arming judges with more data to inform their decisions. Frank McIntyre, an economist, and I recently examined data from over 100,000 felony defendants over a 15-year period, and we found very clear trends regarding which defendants are more likely to commit crimes while free on bail.

For example, judges often detain too many older defendants (people over 30), defendants with clean records and defendants charged with fraud or public order offenses — in other words, people who are less likely to commit crimes while out on bail. On the other hand, judges release too many young defendants with extensive records, people who are more likely to break the law while awaiting trial.

Ignoring, at the outset, that bail determinations are based on both risk of flight, and limiting it to her chosen factor, risk of the commission of new crimes, that’s it?  Which judges are setting unreachable bail for older defendants with clean records and cutting younger defendants with long rap sheets free?  Where is this happening?

Is it that simple, that there is an epidemic of judges who are so incredibly incompetent that they are making bail determinations backwards? 

In the law review article referenced in the op-ed, Baradaran talks about predicting violence.  Not all defendants, young or old, are there for acts of violence.  Not all priors are about violence.  If Young Steve has twenty arrests for smoking a blunt on the street corner, where the cops kept tripping over him despite their efforts to be there when the new tray of donuts greeted the day, his rap sheet will be lengthy indeed.  Completely inconsequential, and utterly  meaningless in terms of violence, as Young Steve is more than happy to hang with his buds and pass around the doobie, but still long.

And where are these courtrooms stuffed with middle agers with clean records, remanding them for fear that at 37, they will embark on a career of carjacking when their single alleged wrong to date was dipping in their employer’s cash register?

Baradaran says that her research is extensive, comprehensive, clear and overwhelming, that she knows what to look for when deciding whether to keep somebody under lock and key.  And the answer is?  Nowhere to be found in this op-ed.  I didn’t read her law review article beyond the abstract. 

But if she’s going to write an op-ed for the Gray Lady, then I fail to see why I have to indulge in such self-loathing.  Either say something meaningful or stay off the op-ed page.  This isn’t a teaser for the 6 o’clock news, forcing one to watch until the bitter end to find out which common household item will likely kill your children.

For at least the almost 30 years I’ve been in the well, I can’t remember a time when judges were expected to concern themselves with either jail overcrowding or the cost-benefit of a bail determination.  Like the bunker buster bombs dropped on Baghdad, cost was irrelevant.  It was something that just had to be done, whatever the cost.  The youngest and rawest recruits in the District Attorneys office would argue for huge bail for first time offenders, or small but simply unreachable bail for the most inconsequential crimes by a guy whose entire personal wealth consisted of a bottle of Thunderbird, and judges were left to sort it out.

Baradaran notes that bail decisions by judges tend to come from the gut rather than anything remotely resembling some empirical perspective.  That’s not entirely correct, at least in New York City courts, where the Criminal Justice Agency would interview defendants, ascertain their community ties in relation to their prior criminal history, and offer a recommendation based on an overly simplistic paper model.  It wasn’t much, but then, neither is what Baradaran offers.

She argues that alternatives to pretrial detention, like GPS and house arrest, aren’t being used to their maximum advantage.  It begs the question of whether defendants who can’t afford bail can pay the costs associated with techno-jail, and leaves one to wonder who is going to be monitoring the people released, given that there aren’t a bunch of probation officers sitting around now eating bon bons.  But when needed, it’s certainly an alternative that isn’t regularly considered.

The upshot of this op-ed is that it makes this situation, the over-detention or excessive-bail of pre-trial defendants (meaning people who have yet to be found guilty of anything) sound as if its a product of a nation filled with idiotic judges who just can’t tell the difference between the guy who ought to be out and the vicious young predators.  How trading incarceration of one group for another changes anything isn’t clear, but that’s what she says.

Historically, judges erred on the side of higher bail rather than lower.  It wasn’t their job to take risks, either with their careers or other people’s safety.  The result was far too many people held in jail pending trial, for reasons that were far more rhetorical than real.  It’s easy to explain why a person poses a threat, either of the commission of a new crime or the failure to return to court as required.  It’s far harder to take a chance, and there were few incentives beyond sheer humanity, to let defendant’s walk out of court.

The problem Baradaran raises, that we can significantly reduce the jail population by making more cost effective decisions at the setting of bail, is real.  The solution requires either a more effective incentive system for judges to stop taking the easy route, if in doubt, lock ’em up, or a better way for judges to confidently distinguish the defendants to be released from the ones who will go out and do harm. 

If only Shima Baradaran had written an op-ed that offered something, anything, to aid in the determination.  But she didn’t.  And we’re not smarter after reading her op-ed than we were before. Maybe less so.

Rather than offer my pale thoughts this year, I defer to those of Eric Mayer at the Military Underdog.  My father, like Eric’s, served in World War II.  My father, unlike Eric’s, is still alive, and goes to work every weekday at the Coast Guard base where he’s the public affairs officer.  I’m fortunate to still be able to tell my father that I love him.

He won’t live forever, and someday I hope to be able to express my thoughts to my father as well as Eric expressed his.

Please read A Memorial Day Letter to Dad.

The underlying story is one of those that makes your head explode from its sheer stupidity.   Radley Balko sums it up.

Family with an unsecured wireless connection gets an early-morning FBI raid, lives under a cloud of suspicion for two years.

Note that though the FBI arrested the guy they were after in November, it took them until May to get around to notifying the family they were no longer under investigation—and even then only after the media got wind of the story.

It was a simple mistake, simple in the sense that anyone with the slightest clue of how wifi and the internet works would have understood that there was a  huge factual gap in what appeared superficially and reality.

“There were FBI and police at the door. They came up into our bedroom flashing lights in our faces,” said Tracy. “I ran to my daughter’s room. She was sitting on the side of the bed crying. She was terrified,” she said.

Investigating a child porn case, the family was interrogated for 3 hours. With search warrant in hand, agents took seven computers and a router from the home.

“They kept asking us about the screen name ‘babytodd’ which we knew nothing about. The whole manner of interrogation was degrading, demeaning and cruel,” said Tracy.

Somebody horned in on the family’s wifi.  Somebody, using the name “babytodd,” downloaded kiddie porn.  It was pure kismet that they didn’t shoot and kill anyone in the misbegotten raid.  Smart bunch of guys working for the FBI, right?  Keeping America safe, one mistake at a time.

So the FBI made a mistake.  Hard to imagine, at least if you’re in law enforcement.  Even after it was all over, the FBI couldn’t quite grasp that they were the ones at fault.

In a statement the FBI told NewsCenter 5: “We understand it must be very upsetting for innocent people to have their home searched by the FBI. They were victimized by a wireless trespasser.”

Of course, the “wireless trespasser” didn’t raid their home in the wee hours of the morning, seize them, interrogate them.  But they were just doing their job.

Two years after the raid, and six months after they arrested a neighbor who happened to use the screen name “babytodd,” Denise Tacey and her family remained, as far as they know, the unarrested suspects of distributing child porn, under the cloud of this horrific charge. 

For two years the Tracys didn’t hear a word from the FBI. They sent letters to government officials demanding resolution.

“The worry and stress and sleepless nights have aged us,” said Tracy.

The feeling of being an innocent person involved in some Kafkaesque nightmare is hard to explain.  There is no comfort to be found in knowing that you’re innocent, as the taint of accusation and fear of prosecution hangs over your head every day.  The threat of another morning raid, the door smashed in as armed men seize your children is omnipresent. 

Yet there’s this naive hope that a day will come, a phone call or maybe a letter, from the FBI, saying in official language that they realize they made a mistake, that they realize they broke down the wrong door, that you are officially declared innocent.

That’s not how it happens.

They may be lightning fast in leveling falsely accusing, but there is no interest whatsoever, none, in conceding a mistake.  The Tracey’s sent letters. They heard nothing back.  They caught the the man they were looking for, and still nothing.  The allegations still hung over the family.  And they would have forever but for the intervention of media.

After NewsCenter 5 made inquiries to the FBI, the Tracys were finally called and offered an apology and promised to return their computers.

That’s right, not only were they forced to live under the accusation of being child pornographers, but the FBI naturally had to seize all their computers, since they contained all the evidence.  Like nice pictures of their cat Fluffy.  Shouldn’t that have had some impact on the FBI’s allegations? 

One would think, but the lack of evidence of guilt doesn’t mean you’re innocent.  Quite the contrary, it makes you an especially devious criminal mastermind, capable of concealing your guilt, even from the brilliant minds at the FBI.  Aw, you clever criminal.

So the Tracey family will be given it’s two year old computers (any new programs for that Wang?) back.  And a begrudging apology, of sorts.

The FBI tells NewsCenter 5 the incident should remind people to secure their wireless networks.

Only in law enforcement can the party that screwed up the worst, the dopiest guy in the room, give advice to others.  But despite everything, this is a rare success story.  The Traceys were not prosecuted and imprisoned.  The Traceys learned, albeit two years too late, that they were no longer upon the cloud of suspicion.  The Traceys got their outdated and useless property back.

This is a success story, because most of the time, the targets of an investigation never achieve closure.  The fingers point, the home raided, all the bad things that aren’t supposed to happen to nice, law-abiding folks, and then . . . nothing.  Silence.  No charged, but no letter saying they’re cleared.  Perpetual silence, and the fears continue day after day, night after night, without end.

The official response to demands that they end the nightmare is “it’s under investigation.”  This is a lie. There’s no investigation, just a refusal to admit they blew it. There will be no further investigation, and there will be no letter or phone call informing the targets that they are no longer under suspicion.  The story will never end.

To the extent an explanation exists, it might be found in the inability to concede that law enforcement is wrong.  The FBI has great difficulty with this concept, adhering to the certainty of their knee-jerk, half-baked, often ignorant conclusions.  They aren’t wrong, just haven’t gotten the goods yet.  They can’t be wrong.

Once law enforcement officers have pegged someone as a criminal, that’s where they remain.  They are not due an apology, or notification that they are no longer under suspicion.  They are not due the courtesy that one would expect from a slightly normal human being.  They are criminals, once and forever, and they deserve nothing. 

And so people, families, like the Traceys, live the rest of their lives under a cloud of suspicion for some heinous crime that they never committed.  And no FBI agent loses a minute of sleep feeling badly that their nightmare never ends.

A twit came across the screen the other day about a criminal defense lawyer from down New Orleans way, where he had some extra time on his hands, could use some extra business, and so he found his way to a website called LawQA.  There’s no link to it, as there’s nothing worthy there to see.

One of the basic draws of the site for non-lawyers is the promise of free answers to legal questions.  You know how much people love free.  Naturally, the questions are too imprecise, even assuming they aren’t deliberately framed to obtain the answers desired, to be of any value.  Why bother with the searching questions that lawyers use to get to the heart of an issue when you can ask simplistic questions that guarantee no worthwhile answer.

And then there are lawyers, hoping to endear themselves to a questioner, who will then be so enchanted with a response that they will feel immediately compelled to put their hand in their pocket and pull out wads of cash.  Forget jurisdiction. Forget critical details. Forget all the nasty little things that distinguish legal advice from what Aunt Selma will tell you on the street corner.  Just be kind and empathetic, and maybe your phone will ring.

So the NOLA lawyer answered questions, except he seemed like a well-intended guy with a little too much time on his hands.  He thought he was doing a mitzvah, the New Orleans word for good deed.  He was trying to help people who needed help.  Is that a bad thing?

It can be, when it supports a concept that inherently unhelpful and potentially dangerous.  Half-baked questions, evoking quarter-baked legal advice, even when well-intended, can lead people to making very bad decisions.  Not only is no one helped by bad advice, but they can find themselves in far worse positions as a result.  To any lawyer who cares, this isn’t what they want to see happen as a result of their good deed.

After some discussion about the nature of these sucker come-on websites, using lawyers to bolster their advertising revenue and “premier” (meaning, paid-for) services to sell lawyers like laundry detergent, the question was posed:  So if this is bad, then what is good?

Pro bono.

Many lawyers these days find themselves with extra time on their hands and a desire to use it in both a meaningful way, and a way that might lead to a few more interesting phone calls.  There’s nothing wrong with hoping the phone will ring with a person on the other end who has both the wherewithal to obtain counsel and a case that will be both interesting and enlightening.  Nothing wrong at all.

At the same time, there are people out there, human beings, who aren’t capable of covering the freight for desperately needed legal services.  It’s not that they’re looking for a free ride, as much as there being no other ride available to them.  They need a lawyer.  You are a lawyer. They have a fascinating case. You could use a fascinating case. What could possibly be done with these fortuitously fitting circumstances?

Taking a matter on pro bono can be an opportunity to show your chops, both to the client, his family and friends, as well as the court and prosecutors.  No, it’s not invariably perfect, with some people failing to appreciate the gift as given.  But most of the time, pro bono is seen as a noble effort, an act of compassion toward others.  This is a good thing.

True, the obligation assumed in pro bono representation can end up being very time consuming, more so than the free time you have available, or the free time you’re willing to give up.  It’s certainly more onerous than dashing off a half-baked answer on some scam website for some cheapskate.  Once you’ve undertaken the representation of another, regardless of whether you’re well-paid or doing it for love, your duty is to do so with the same degree of excellence and to see it through to the end.  That’s the life of a lawyer.

At least you get to select a person/case deserving of your efforts with pro bono, and can enjoy the sense of doing something worthwhile with your time rather than just mercenary.  And don’t neglect the potential of karma.  Whether or not you see any direct benefit accruing from pro bono representation, good things tend to find their way to people who do good for others.  It’s just how things happen.

So you have too much time on your hands?  This is my solution, for whatever it’s worth.

Imagine a defendant facing sentence for a crime to which he’s acknowledged guilt, shown remorse, recognized the error of his ways and stood prepared to face the consequences.  And then a voice from the back of the courtroom is heard, alleging harm and injuries never before mentioned, asserting misery caused by the defendant never considered before.

And the defendant is precluded from challenging these allegations.

That’s the  scenario proposed by former federal judge, not Utah lawprof, Paul Cassell in his new article with Edna Erez, Victim Impact Statements and Ancillary Harm: The American Perspective.

A recent article by Julian Roberts and Marie Manikis argues that the concept of “ancillary harm” explains why victim impact statements are useful at sentencing. Drawing on a recent decision from the Quebec Court of Appeals, they contend that impact statements help a judge assess foreseeable harm caused to a victim’s family member and others – “ancillary harm” – for which the defendant is properly held accountable under conventional retributive principles.

In this response, we bring an American perspective to bear on these issues, finding much in the American crime victims’ literature and court decisions to support the Robert-Manikis thesis. For example, at the recent sentencing of Bernie Madoff, the sentencing judge referenced ancillary harm as an important factor. A number of cases have reached similar conclusions. While not using the phrase “ancillary harm” to justify their actions, the court decisions make clear that foreseeable harm to others is an important consideration at sentencing. The American cases also support a crime victim having a right to deliver a victim impact statement not only in writing, but also orally at the sentencing hearing itself. Crime victims, however, should not be cross-examined when delivering their statement. Instead, the court should insure the reliability of information contained in a victim impact statement in other ways, as a number of decisions recognize.

It pulls together some interesting examples of the victim impact statements bringing to a judge’s attention the far reaching consequences of a crime that might not otherwise be apparent.

Crime victims, however, should not be cross-examined when delivering their statement. Instead, the court should insure the reliability of information contained in a victim impact statement in other ways, as a number of decisions recognize.

Techdirt, the website of geeks everywhere, discovered  Rakofsky v. Internet yesterday, proving yet again that it’s a source for cutting edge news and information.  This prompted Mark Bennett, who has maintained a  compendium of Rakofsky posts, to note :

Twice as many Google cites for Rakofsky in May (post-lawsuit) as in April (pre-lawsuit, post-Deaner case). #TheRakofskyEffect

Sabrina De Sousa was one of 23 people convicted in Italy of a very nasty American practice called “rendition,” which amounts to the United States invading the sovereignty of a foreign nation, seizing someone there because, well, we want to, and doing with them as we please.  In this case, rendition ended in Egypt and torture.

De Sousa was alleged to have participated in the 2003 kidnapping of a Muslim cleric, Abu Omar.  Officially, she was a State Department employee, part of the diplomatic corp.  Unofficially, she was CIA.  Even so, she expected her appreciative government to invoke diplomatic immunity on her behalf, and when it pretended not to know her, she was pissed and sued.  From the New York Times :

Former colleagues say Ms. De Sousa was a C.I.A. officer posing as a diplomat, the most common kind of cover for intelligence agents working abroad. She has declined to say whether she worked for the agency, noting that she was officially posted to Italy as a State Department employee.

In 2009, Ms. De Sousa sued the State Department, the C.I.A. and several officials in an attempt to force the American government to invoke diplomatic immunity on her behalf in the hope of blocking her prosecution by the Italian authorities.

The State Department did not assert immunity, though it ultimately agreed to pay a lawyer in Italy to represent Ms. De Sousa. She was convicted in absentia in Italy of helping to oversee the kidnapping conspiracy and sentenced to seven years in prison.

As one might expect, De Sousa has evidence to support her claim.  As also expected, the evidence is classified, since the government classifies everything short of the cleanser used to clean CIA toilets.  But the lawyer for the Department of Justice has a security clearance.  De Sousa’s lawyer, Mark Zaid, has a security clearance.  No problem, right?

In a hearing before the judge, Beryl A. Howell, the Justice Department said that only the executive branch has the power to make decisions about classified information, including whether the lawyer, Mark S. Zaid, can tell the judge what he knows.

“There is no right for the plaintiff to give the court classified information at all,” said Brigham J. Bowen, a Justice Department lawyer. He said Mr. Zaid’s “obligation is to protect against all disclosures, including to the court.”

Judge Beryl Howell is the weak link.  It seems the judge is the only one who can’t be trusted with classified information, the stuff that both the prosecution and defense know, and that Zaid can’t disclose it to the judge because the prosecution, as representative of the executive branch, gets to make the call.  Shockingly, the DOJ says “nyet, comrade.”

In response, Judge Howell “pronounced herself ‘literally speechless’ at the government’s assertions,” which is of course a contradiction in terms, but who can blame the judge for being befuddled.  It appears that the court got the message, however.

Judge Howell expressed sympathy for Ms. De Sousa’s situation, asking whether the government simply had left her “high and dry.”

Judge Howell asked Mr. Bowen, the Justice Department lawyer, several questions about an earlier episode in which Mr. Zaid was accused of inadvertently disclosing classified information in court papers, including which intelligence agency was involved. “I can’t fully answer those questions publicly,” Mr. Bowen said.

Secrets are secret, you know.  It’s not like there’s a third branch of government whose duty it is to adjudicate the lawfulness of the conduct of the other two, in a system that could be called, to coin a phrase, checks and balances. 

In the meantime, De Sousa is unable to travel to Europe for fear of being taken into custody to serve the seven year sentence imposed in absentia.  She’s got no job, apparently since the government has this thing about diplomats and CIA agents being wanted criminals, and feels a bit unloved and unappreciated.  She asserts that her Italian conviction is hindering her ability to find employment, though there’s no mention of whether it appears on her background check for the assistant manager position at McDonalds.

The scenario, in its entirety, is astounding on every level.  Chances are De Sousa would be a bit more of a sympathetic plaintiff but for the fact that her underlying conduct related to the kidnapping and torture of a Abu Omar, even with the rationalization that torture in the old Egypt was considered a substitute for fine art.

But the mutt of this case is Judge Howell, who has accepted the premise that a branch of government cannot fulfill its constitutional duty when another branch of government says so.  Arguments of judicial independence ring silly and empty when federal judges themselves opine that they’re “literally speechless.”  Judge Howell should be filled with speech, loud and forceful speech, and none of it good for the government,

One might suspect that the federal judiciary wouldn’t take kindly to be told what it can do by some lawyer from the DOJ.  And one would be wrong.  When it comes to rendition, you can’t buck your master, and the government can’t trust its judges. 

Will Meyerhoffer should never have been a lawyer.  Or if he should, it shouldn’t have been with Biglaw (Sullivan & Cromwell).  But coming from Harvard and NYU Law, he was doomed to walk down the wrong path, and he found hate at the end.  So he left and became a therapist, where he could spread his hate to others who similarly should never have been lawyers.

Now a columnist at Above the Law, Meyerhoffer wants you to hate lawyers too.  Why should he be the only person wallowing in misery?  His latest post explains why lawyers are despicable, as if any explanation was needed.

To judge by the accoutrements of “the profession,” lawyers, as a group, maintain an inflated self-image. They think they’re all that. It’s easy to get sucked into this mind-set – especially fresh out of law school. Perhaps, when you’re not “thinking like a lawyer,” you’ve spent a few minutes admiring the little “Esq.” printed after your name on an envelope from school or a law firm – or some company in Parsippany trying to sell you a genuine mahogany and brass pen holder featuring a statue of “blind justice” for only $59.99 with free shipping.

With lawyers, self-esteem outpaces public acclaim. That’s because, for the most part, non-lawyers view lawyers as worthless parasites – or at least, as existing on the more worthless, parasitical end of the esteem spectrum.

Monday morning, I called up my contact at Morgan, the guy who interviewed me. He was Australian, and seemed distantly friendly. For whatever reason, I sensed I had nothing to lose, so I put it to him straight. I’d been reading “Liar’s Poker,” I said, and sensed I’d blown the interview. I wanted another chance to present myself.

There was a pause.

*  *  *

I asked, flat out, what he really thought of lawyers.

Another pause, then, delivered in that charming Australian accent, with a chuckle: “Bend over and take it like a man.”

“That’s really what you think?”

“Seems like the worst job in the world to us. You work day and night, chasing your own tail. You’re like slaves, and all you do is the boring stuff.”

“Trading bonds is more fun, huh?”

“Fun and lucrative, thank you.”