Aren’t we smart lawyers?

In the course of my morning routine, I read a few blawgs, including some new ones that pop up from time to time.  Most of them start out with generic explanations of relatively routine legal situations, maybe a post about drunk driving, or basic assault.  The sort of stuff designed to show the potential client how much we know about law, to entice them to call because we know how to handle their case.

A while back,  Kevin O’Keefe posted a question from one of his  Lexblog customers about whether responding to questions in blog comments could establish an attorney/client relationship.  The answer, at one level, was obvious; Of course it could, but I suspected that it was a trick post, because Kevin wouldn’t waste his time writing about something to so obvious. 

My thought was that Kevin’s post sought to deal with the dual problems of how to allow comments that raised questions based on the particulars of the post, details of the aspect of law establishing what a great lawyer the author was, and respond without it becoming a problem.  Apparently, I was wrong, as others commenters just urged the blawgers to moderate the questions out.  Easy. Simple. Unhelpful, at least from what I thought Kevin was asking.

This came back to me when I received a call on a new case the other day.  After speaking briefly with the caller, I told him that it wasn’t the sort of work I did, and thanked him for calling in the way that tells the caller that the conversation was at an end.  He wasn’t done.  The guy then started crying. I hate when that happens, but I couldn’t hang up on a crying guy, so I listened.

He was a pretty regular guy, and faced his first brush with the law.  He had a little money to pay for a lawyer, but figured he could Google his way to a better understanding of what he was looking at.  And he was thrilled to find a number of blawgs with what appeared to be great information about the crime with which he was charged.  He read up, and one particular blawg offered not only a basic description of the elements of the offense, but some things to look out for, tricks of the trade so to speak.  He thought he hit gold.

Emboldened by his newfound knowledge of law, he decided to save his money and take a shot on his own.  He thought that if things go south, he could always hire a lawyer later to bail him out, but he thought he was smart enough to take this blawg post and stand on his own.

It was a disaster. Nothing happened the way it was supposed to.  He said what the blawg post told him to say, did what the blawg post told him to do, and found himself being ripped to shreds.  The judge looked down over the bench and screamed at his arrogance, his hubris. The prosecutor withdrew the plea offer, telling him he would never escape jail time. 

He stood there, clueless as to what he did wrong, but clear that he had just done something that might prove the undoing of his family, his job, his life.  His head was about to explode and he had no idea why.

In my wandering through the blawgosphere, I’ve read many posts which, to my lawyer eye, seemed pretty innocuous and generic.  I saw them as an obvious come-on, a simplistic effort to provide a potential client with the sort of basic information that one might explain to a client about their charge during a free consultation.  They seemed harmless enough. 

What lawyers see as a come-on, however, can read to a non-lawyer like a DIY guide to lawyering.  These generic background posts about the elements of some basic crimes (or causes of action, for civil guys) have become de rigor among lawyers who create blogs for marketing.  The notion is that by providing information to potential clients, we demonstrate expertise and develop trust.  It’s all warm and fuzzy, well enough intended and crafted to make the blogs pay off the way the marketers tell us they should.

What we do not see is how they’re read by the million nice people cruising the internet for information.  Sure, we have the disclaimer, that “this is not legal advice.”  Some lawyers go a bit farther, like my buddy Eric Mayer at Military Underdog, who writes:

Reading this blog will not help your various law maladies. In fact, it may make them worse, and it will definitely make you feel worse. You don’t want that.

They sure don’t, but some don’t consider that he’s talking to them.  Few actually read the disclaimer.  And truth be told, the disclaimer isn’t there for the benefit of readers, but the protection of lawyers.  It may be completely adequate to establish a defense against a claim of inadvertent malpractice, but it does nothing to inform the reader that a blog post here and there isn’t going to turn him into a lawyer.

As you disclaim responsibility for what you write, do you think of anything more than protecting yourself?  Do you consider that your generic description seems like master’s class to some non-lawyer readers?  As basic as it may be to a lawyer, can it empower someone to believe they can “follow” your advice and go it alone?

That’s the point, that the words on the sidebar say it’s not legal advice, but it is.  In the minds of non-lawyers, it’s a road map to legal success.  Of course, we know it won’t work, and leaves out almost everything that is needed to successfully defend, but they don’t know that.  How could they?  They don’t have a clue.

This isn’t a rant about the evils of marketing, but a plea to those of you who produce one of the many lawyer marketing blogs in the hopes of following the marketer’s instructions and find wealth and clients on the internet.  You likely don’t give much thought to readers who don’t call you, don’t retain you. They mean nothing to you.  But they’re still people who stumble on your words and think they’ve struck gold.  We know it’s crap, but to someone who is clueless, it’s their magic ticket to freedom.

It’s cliche to say a little knowledge is dangerous, but it’s true.  Just think about the dangers you might cause when you write a post that purports to teach non-lawyers about the legal system.  They just might read it and think they’ve learned something. 

I realize that you don’t care much about anyone who doesn’t retain you, but I must believe that you really don’t want someone reading your post to end up burning himself because you’ve given enough information to get him into deep trouble and not enough to get him out of it. 

If you are a lawyer writing these “how to” or “all about the law” posts for marketing purposes, you are giving legal advice, no matter what your disclaimer says.  Please be careful.
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Epilogue: Some are likely stuck on what became of the guy on the phone.  He told me what he did. He challenged a piece of scientific evidence being used against him, contending that it reflected specific impropriety by the judge and prosecutor.  He was correct that the specific piece of evidence was being used in his case, but had yet to learn that it had been used improperly.  He missed that nuance.

The basis for his accusation was that a post suggested that use of this particular piece of scientific evidence was frequently done improperly, and that it offered a potential defense.  The post further noted that judges and prosecutors who ignored the problem were often evil and stupid. 

He thought it was acceptable to say that in court.  After all, if it was true, then what was the harm in letting the judge and prosecutor know that he wasn’t one of those defendants who came to court unarmed.  But he was shooting blanks.

I apologize for being so vague, but I read the post the guy relied upon and it wasn’t inaccurate. It just wasn’t sufficient to inform someone how to handle the situation, what predicate was needed before arriving at the conclusion and how, after the impropriety was found, to deal with it properly.  There was nothing per se wrong with the post, so I don’t name the blogger or link to the post.  It’s not that he did something wrong.

But I also understood how the caller had completely misconstrued the post and acted upon it.  I understood why he thought he knew what he was doing.  And I understood how badly he screwed up.

Cormac Carney knows when to throw a flag.  As a former All-American receiver for the UCLA Bruins, he understood that the game can’t be played if the rules weren’t followed.  He may wear black instead of black and white on the bench, but he gets it.

He got it in the Broadcom case, when he  tossed the indictment against CFO William Ruehle and others.  And he gets it again in Islamic Shura Council v. FBI, where the government tried to pull a fast one on him.

The Government’s in camera submission raises a very disturbing issue. The Government previously provided false and misleading information to the Court….

The Government asserts that it had to mislead the Court regarding the Government’s response to Plaintiffs’ FOIA request to avoid compromising national security. The Government’s argument is untenable. The Government cannot, under any circumstance, affirmatively mislead the Court.

The Government contends that the FOIA permits it to provide the Court with the same misinformation it provided to Plaintiffs regarding the existence of other responsive information or else the Government would compromise national security. That argument is indefensible.

Boston Municipal Court Judge Raymond G. Dougan Jr. has not endeared himself to the local district attorney.  Suffolk prosecutor Daniel F. Conley has gone on the warpath to show that Dougan is unfit to sit on the bench, filing a 72 page motion detailing the judge’s faults and demanding that he stop interfering with their ability to convict people. Dougan denied the motion.

It’s rare, but when a judge refuses to become part of the machinery of justice, prosecutors have no choice but to get tough. 

“Although some of these incidents are well in the past,’’ Conley wrote, “the entire historical record reveals a disregard for the proper role and authority of a judge … a disregard for the authority of the Legislature, a disregard for the authority and duty of the district attorney, a disregard for the constitutional separation of powers, and a disregard for Judge Dougan’s obligation to administer the laws and adjudicate cases in an impartial manner.’’

From Keith Lee at An Associates Mind (a/k/a ULS).

It’s not some ridiculous SEO scheme. It’s not link-spamming blogs. It’s not social media. It’s really a very simple concept that most people fail at:

“we do everything like we give a damn”

Full stop. That’s it.

It’s not a slogan, but what you do. I’ve got nothing to add.

At the Chronicle of Higher Education, Peter Moskos (who will be filling in for  Radley Balko while away on vacation, presumably accompanying Kate and William on their honeymoon in order to guide the future King and Queen on how to rule an Empire) offers a provocative thought:  What’s wrong with a decent flogging?

For most of the past two centuries, at least in so-called civilized societies, the ideal of punishment has been replaced by the hope of rehabilitation. The American penitentiary system was invented to replace punishment with “cure.” Prisons were built around the noble ideas of rehabilitation. In society, at least in liberal society, we’re supposed to be above punishment, as if punishment were somehow beneath us. The fact that prisons proved both inhumane and miserably ineffective did little to deter the utopian enthusiasm of those reformers who wished to abolish punishment.

Prisons today have all but abandoned rehabilitative ideals—which isn’t such a bad thing if one sees the notion as nothing more than paternalistic hogwash. All that is left is punishment, and we certainly could punish in a way that is much cheaper, honest, and even more humane. We could flog.

Ullstein Bild, The Granger Collection, A public flogging in Delaware in the early 1900s

Brutal?  Barbaric?  As Moskos notes, we locked up 1.3 million people between 1970 and 1990, and what did we accomplish?  Not much.

We deem it necessary to incarcerate more of our people—in rate as well as absolute numbers—than the world’s most draconian authoritarian regimes. Think about that. Despite our “land of the free” motto, we have more prisoners than China, and they have a billion more people than we do.

And yet we persist in our belief that this system is working.  Or will work, if we just incarcerate a few more people. Or for a few more years.  What is it about prisons that causes us to maintain our faith in their efficacy?  What is it that makes us ignore that it’s a concept that’s been tried and failed, and failed miserably, to cure whatever ills it was meant to cure, such that it’s only grown monumentally without an end in sight? If insanity is to take the same course of action over and over, and expect a different result, then this is nuts.

So is flogging still too cruel to contemplate? Perhaps it’s not as crazy as you thought. And even if you’re adamant that flogging is a barbaric, inhumane form of punishment, how can offering criminals the choice of the lash in lieu of incarceration be so bad? If flogging were really worse than prison, nobody would choose it. Of course most people would choose the rattan cane over the prison cell. And that’s my point. Faced with the choice between hard time and the lash, the lash is better. What does that say about prison?

There is, of course, a gap in Moskos’ point, that being the sentencing goal of incapacitation, removing the defendant from society that he cannot do harm to others.  A decent flogging aside, it would still leave the murderer free to murder, and we can’t have that.  The victim of his murderous intent would likely find it entirely inadequate.

But then, incapacitation only applies to a limited number of convicted criminals, and certainly not those imprisoned over drugs crimes, victimless crimes, financial crimes.  How many people would have enjoyed watching Bernie Madoff flogged? 

Moskos suggests a ratio of two lashes per year in prison.  That seems a bit light for shorter sentences, say under ten years, where perhaps a sliding scale might work better.  For example five lashes per year for the first five, three for the next, and two thereafter.  And as with Singapore, there should be a limit of, say, 24 lashes at a time, for the survival of the floggee.  There are some details to work out, but what about the basic premise?

And I bet that if convicted criminals were offered the option of flogging over prison, that Moskos is absolutely correct that most would take it.  Even if it doesn’t do a damn thing to change recidivism or improve social conditions, it’s cheaper, quicker and will sate that blood lust that permeates the system already. 

Plus, it couldn’t do any worse than locking people away in prison for decades and expecting them to come out as happy, productive, law-abiding citizens.

Harvey Silverglate’s  Three Felonies A Day is so passé.  Under the 9th Circuit’s decision in United States v. Nosal, chances are that you’ll have a few dozen before the day is out. 

David Nosal was accused of getting employees of an executive search firm to use their computer access to obtain “trade secrets” and pass them along to start a new firm.  The employees used their employer provided access, accounts and passwords, to get the information and pass along to Nosal. 

The district court refused to dismiss, until the 9th Circuit decided LVRC Holdings LLC v. Brekka, holding that there was no violation of the Computer Fraud and Abuse Act, 18 U.S.C. §1030 for unauthorized use when he was permitted by his employer to access a computer, even though it turned out that he used it in a way that the employer subsequently found contrary to his interests.  Since Brekka has the authority to access the account, including the specific data involved, he did not violate §1030’s prohibition against either unauthorized access or exceeding authorized access.

After the  Brekka decision, the court dismissed most of the counts of the indictment against Nosal.  The 9th Circuit, in a 2-1 split, reversed.

The crux of the court’s decision hinged on two letters:  so.

Although the statute does not define the phrase “without authorization,” it does state that “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” Id. § 1030(e)(6) (emphasis added). 

The government contends that Nosal’s interpretation of “exceeds authorized access” would render superfluous the word “so” in the statutory definition. We agree. “So” in this context means “in a manner or way that is indicated or suggested.” Webster’s Third New Int’l Dictionary 2159 (Philip Babcock Gove, ed. 2002). Thus, an employee exceeds authorized access under § 1030(e)(6) when the employee uses that authorized access “to obtain or alter information in the computer that the accesser is not entitled [in that manner] to obtain or alter.” We decline to render meaningless a word duly enacted by Congress.

On this thread, the court held that the limitations on access created by the employer, that it’s content was confidential, was sufficient to establish a crime by its access by employees otherwise authorized to access it.

Oh boy.

The court interpreted Brekka to hold that it was the employer’s action that determined whether access exceeded authorization.

How is an employee supposed to know when authorization has been revoked if the employer does not inform the employee of the revocation? It was this concern that motivated us to apply the rule of lenity, “ ‘which is rooted in considerations of notice [and] requires courts to limit the reach of criminal statutes to the clear import of their text and construe any ambiguity against the government.’ ” Id. at 1135 (quoting United States v. Romm, 455 F.3d 990, 1001 (9th Cir. 2006)). Because LVRC had not notified Brekka of any restrictions on his access to the computer, Brekka had no way to know whether — or when — his access would have become unauthorized. Therefore, as long as an employee has some permission to use the computer for some purpose, that employee accesses the computer with authorization even if the employee acts with a fraudulent intent.

In contrast, the court found that the employees in Nosal knew of the restrictions, that the data was confidential, which the court called “clear and conspicuous,”

For this reason, we conclude that the rule of lenity, which applied with particular force in interpreting the phrase “without authorization,” does not support ignoring the statutory language and the core rationale of Brekka. Nosal’s argument that the government’s “Orwellian” interpretation would improperly criminalize certain actions depending only on the vagaries and whims of the employer is foreclosed by Brekka, which held unequivocally that under § 1030 the employer determines whether an employee is authorized. Id. at 1133, 1135. Therefore, as long as the employee has knowledge of the employer’s limitations on that authorization, the employee “exceeds authorized access” when the employee violates those limitations. It is as simple as that.

Simple?  Maybe a little too simple.  The potential for restrictions, whether real or imagined, clear or overarchingly vague, puts into employers’ hands the ability to criminalize conduct by their employees and former employees at will.  This creates the potential for a cottage industry for lawyers in crafting computer access restriction that could be used to terrorize their employees with potential criminal liability.

And further, considering the breadth of electronic equipment in hand and upon which we’re becoming increasingly dependent, the same reasoning that holds Nosal criminally liable would put all of us similarly at risk in the terms of use of every website on the internet.  Imagine some click-through terms to contain a few thousand restrictions on use (you are prohibited from accessing this website while wearing a bathrobe and/or flip flops), which now constitutes a crime.

Didn’t read it?  Bummer, as ignorance of the law is no excuse.  But it’s not like some governmental entity passed a law making it a crime?  Bummer, because every employer, website owner, cellphone provider, car manufacturer, anyone providing anything that works on or with a computer chip, is now empowered to create crimes at will. 

They need not be reasonable.  They need not be fair.  It’s their authorization you need, and by which you’re limited, and if they say jump and you don’t, you’ve exceeded your authorization. 

Of course, chances aren’t good that roving bands of prosecutors will be surveilling your every move on the internet or in your employer’s database.  instead, prosecutions will come only when you’ve pissed someone off enough that they either bring your nefarious computer use to the government’s attention or the person you pissed off happens to have sufficient influence for an indictment to be brought.

Get it?  Aside from the few people living as hermits, there is no one who does not violate some restriction on use of a computer regularly, meaning that the government, should it so choose, has the ability to prosecute every person (hermits aside) online.  Heck, you’d be lucky to make it to your coffee break with only three felonies.

Royal Wedding Crime Spree Update: This is a test. How many crimes can one commit via this page from today’s lovely Royal Wedding between Prince William and She Who Must Be Obeyed?

H/T Eric Johnson at PrawfBlawg (Copyright 2011 Eric Johnson at Prawfsblawg)

By 5-4 decision, the Supreme yesterday put an end to consumer class actions in AT&T v. Concepcion, holding that the Federal Arbitration Act preempts state law prohibiting contracts of adhesion.  The court held that “contracts” imposed by corporations allowing only arbitration of individual disputes are okey-dokey, and that if you don’t like the deal, go find a multinational corporation to provide cellphone services that will negotiate every term and condition of the deal with you individually.

Or else, each and every person who contracts for service can bring their own arbitration action for the $12,49 that the corporation overcharged.  Imagine how much work that will be for AT&T if 27 million people file for individual arbitration at once!  Now if we can just get all those people to go along with the plan.

In Scranton, Chief Dan Duffy is in big trouble with the police union because he arrested a drug dealer.  Via Overlawyered,

[T]he police union has filed a grievance with the state collective bargaining board over a drug arrest made by police chief Dan Duffy in March, “because the chief is not a member of the collective bargaining unit and was ‘off duty’ when the March 20 arrest was made.

 Earlier this week, I wrote an analysis of some silly claims from Canadian IP lawyer James Gannon’s sarcastic suggestion that copying money is just like copying content. Gannon stopped by in our comments… and oddly did not respond to a single point that I raised about his faulty analysis. Instead, he only commented to claim that it was somehow rude or discourteous of me to link to his piece and to discuss it without first asking for permission. I found this somewhat shocking. I’ve never heard that it’s common courtesy to ask before you link to someone. Yet Gannon insisted that most people who link to him first ask his permission and he suggests, snidely, that his readership has higher “standards” in regards to how they view content.

While at the supermarket, I went down the frozen pizza aisle. Not having bought a frozen pizza since my law school days, I was overwhelmed at the selection. There was DiGiorno, Tombstone, Red Baron, Amy’s and Kashi’s. There was organic, low-fat, thick, thin, healthy and indulgent. It occurred to me while standing there that there were similarities between me selecting a frozen pizza and an in-house counsel selecting a firm. My decision came down to value, which economists have an equation for – quality over cost. I wanted a flavorful pizza with quality ingredients at a good price. Likewise, in-house counsel are looking for quality service (strong work product, responsive counsel, good outcomes) at a reasonable cost (lower billable rates or possibly alternative billing arrangements). When working on a matter, remember that the client you are working for wants a positive outcome and does not want to pay too much for it.

Yesterday, a comment came in on my post from earlier this month on  marketing legal services.  The commenter was Ed Poll of Edward Poll & Associates, Inc., of Venice, California, proprietor of  LawBiz.com and other law firm management-related enterprises.

Here, in full, is the text of Mr. Poll’s comment:

As a marketer, you know how important branding is … and use of another’s brand and registered mark is not appropriate. I can only surmise, then, that your use of my brand in your post was a result of lack of knowledge.  The Business of Law(r) is my registered mark since 1995.  In the future, should you want to use it, please provide attribution.  Thanks.

Unlike the snipping other George Wallace, I believe in respecting another man’s registered mark.  Accordingly, I have registered the mark “Ed Poll” for the use of internet idiot, and fully expect it to be honored by all.  To do otherwise is not appropriate.  And by the way, if you want to link to me in order to provide proper attribution, you will need my permission first.

Via Radley Balko, Broward Circuit Court Judge Ilona Holmes had just finished an Easter dinner with her sister and family in Deerfield Beach when she was taught the first rule of policing.

The first rule of policing, as I’ve explained many times, is get home for dinner.  What?  Did you think it would be something heroic and inspirational?  Well, it is, just not to you.  Foremost in a police officer’s mind as he straps on his gun is to make it through his shift unharmed.  Be reasonable.  It’s a job, not something to die for.  He’s got a wife and kids.  She’s got a husband and kids.  Not even a pension and gold shield will make up for leaving your children parentless.  Get home for dinner is a very good rule.

As it happens, the first rule of policing tends to conflict with the ordinary enjoyment of life, free from either the threat of death or, under unfortunate circumstances, the erroneous infliction of death.  And the judge learned this first hand.

The call to police said there might be a burglar inside 235 Southwest 4th Street. But there is no 235. Only 236 and 230.

Arriving police outside spotted someone inside 230 – Neville Scarlett was in the kitchen cleaning up the Easter dinner plates – and thought he might be the burglar.

There seems to be a running issue with police and house numbers, and it manifested itself again when the cops were confronted with the impossible, no number 235 and adrenalin flowing. Scarlett was in his own home, doing the dishes, minding his own business.  What are the chances he was thinking about the first rule of policing?  Then his wife, Carmita, looked out her kitchen window.

There’s a man with a gun and he’s going to shoot me!!” yelled Carmita. “I thought it was the robber!” Her sister, Judge Holmes, came running to the kitchen. The judge carries a legal firearm and immediately pulled it out and held it in her hand.

“She said ‘Who are you!? What are you doing?!’ He said ‘this is BSO.’ She said, ‘this is Circuit Court Judge Ilona Holmes!!’” Carmita said.

Under certain circumstances, announcing that you’re a judge carries some weight.  It’s enough to make lawyers laugh at your jokes, no matter how bad they are, or behave with courtesy toward you no matter how dismissive you are.  But it’s not enough to overcome the first rule of policing.

“They said, ‘Come out with your hands up!’ She said, ‘I am Circuit Court Judge Ilona Holmes. I am armed.'”

They all slowly went out through a side door. “She was putting the gun down. They yelled, ‘put the gun down! Put the gun down!’ Right there, the cop had his gun pointed at her.”

Judge Holmes, surrounded by deputies with guns drawn, slowly put the gun on the grass, announcing it as she went. She was holding a cell phone in the other hand. When she began to place that on the ground, police began yelling.

“When she went to put that down, they yelled, ‘Get away from the gun!’ She said ‘everybody calm down. I’m putting my cell phone down’.”

At that point, a higher-ranking deputy recognized her and called on his team to lower their guns, according to Carmita.

The funny thing is that judges are often hard to distinguish from ordinary people when they aren’t in robes or sitting on the bench.  They just look like regular folk, you and me.  Even if someone yells out that they are a judge, the police officer pointing his gun at your head can’t be certain that you aren’t some very tricky criminal about to throw your cellphone at him with great velocity.  And how can he be sure it’s actually a cellphone anyway?  Everything is presumed to be a deadly weapon under the first rule of policing.

“The one that first recognized her, he picked the gun up, opened it up, took the bullets out, he started giving her a speech: ‘Judge Holmes, you know, these guys may not know who you are. I know who you are. This could have been so different.’ And my sister said, ‘everyone of ya’ll know me. Ya’ll been before me’.”

Notice that even after recognizing the judge, his first act was to take the bullets out of the judge’s gun?  His second act was to tell the judge that “this could have been so different,” as in she might have had her head blown off, just in case.  The sort of mistake that could happen to ordinary folk.

But Carmita was downright angry. Remember the man outside her kitchen window who pointed a gun at her? Still wearing her pajamas and footies, she approached him afterward. “I said ‘you had a gun pointed at me!’ He said ‘because I felt threatened.’ I said ‘threatened how?'”

A well-trained officer knows that the first thing out of his mouth when he points his gun is to claim he felt threatened.  After all, if an officer feels threatened, then he’s entitled to do whatever he needs to do according to the first rule of policing.

While we are appalled at the frequency with which ordinary, law-abiding people who have the misfortune to meet up with police end up dead, judges rarely get a chance to experience anything beyond the sanitized, rationalized version of events presented in courtrooms.

Broward Circuit Court Judge Ilona Holmes had an opportunity to come face to face with first rule of policing.  This should be added to the list of things a judge, and prosecutor, should experience before being allowed to make a decision about other people’s lives.

When it became publicly known that Gitmo detainees were being waterboarded, and subsequent to the debate about whether torturing prisoners was really torture or just “enhanced interrogation with psychological fear of death with extreme prejudice,” the blame was directed at the administration doing the dirty.  But President Bush didn’t dream up these techniques on his own.

The  New York Times reports that actions are being taken to hold the nuts and bolts guys accountable.

Critics are taking legal action to seek punishment for psychologists who, they say, designed and consulted on abusive interrogation techniques used on suspected terrorists.

The psychologists violated professional ethics rules, the critics say, because, they claim, the interrogations amounted to torture.

In one lawsuit, in State Supreme Court in Manhattan, a human rights group based in San Francisco is trying to force New York State to investigate Dr. John Francis Leso, a psychologist whom the group accuses of overseeing abusive interrogations at Guantánamo nearly a decade ago.

An NYU professor of psychiatry, Steven Reisner, who filed a grievance with the state disciplinary board, said:

“The significance is this: There has been no one held accountable for the Bush administration’s torture program.” Because the federal government has been unwilling to bring criminal prosecutions, Dr. Reisner said, “we’re trying to bring an ethical complaint so they’re at least held accountable for their licensure.”

Naturally, these actions have yet to achieve any success or produce results.  And indeed, it’s quite likely that Leso, as well as Dr. James E. Mitchell who designed, and Dr. Larry James who oversaw “abusive interrogation techniques” at Guantánamo, will ever be held directly accountable, as their efforts were under the protective arm of the government.  But these actions will at least make it known within their profession that these were the people who used their education, knowledge and experience to make torture possible.

State courts would be reluctant to intervene in complaints against military psychologists because they would “tend toward the view that these are matters of federal policy and federal law” that the government should address, said Dr. M. Gregg Bloche, a professor at Georgetown University who is both a lawyer and a doctor.

Ironically, one of the justifications for the acceptability of the abusive interrogation techniques offered by the administration was that they were designed by doctors.

The psychologists may also benefit from circular reasoning by the government and ethical authorities, said Dr. Bloche, whose book, “The Hippocratic Myth,” explores the tension of doctors’ ethical commitments.

While the Justice Department under President George W. Bush said its interrogation guidelines were legal because psychologists designed them, the American Psychological Association has said that the psychologists who consulted on interrogations had a duty to follow government guidelines, Dr. Bloche said.

While psychology may be a bit dubious in its therapeutic benefit for most, apparently its effectiveness when it comes to torture is no longer in doubt.  When the government needed torture, the whole “do no harm” myth went up in smoke, trumped by the overarching duty to please the customer.

There’s a tendency to forget, as we blame the government for things gone bad, that they wouldn’t be able to accomplish nefarious covert goals without the help of others.  Had no psychologist been willing to lend his craft to torture, there would likely still have been abusive measures, but without the imprimatur of medical approval.

Remember John Yoo, the justice department toady whose notorious torture memo provided the government with the legal rationalization to do harm?  Remember how he ended up in prison as a law professor at University of California, Berkeley because of this? 

That wrongs committed at the behest of the government, and those who use their professional prowess to make it possible (or more effective), rarely end up with anyone paying a price, doesn’t necessarily mean that they can walk away free and clear.  There may never be prison sentences for this psychologists, or even a day’s suspension of their professional licenses, but at least these actions by their professional brethren get their name out there and they will not escape the shame of enabling this disgraceful moment in American history.

It might not be much, but it’s better than nothing.  And if they ever make a movie about them, I hope they model after Marathon Man.

At Volokh Conspiracy, Orin Kerr points to two new decisions on dog hits that reflect a monumental clash.  The first, from the Tenth Circuit Court of Appeals, is United States v. Ludwig, and it’s a stunner.

[I]t surely goes without saying that a drug dog’s alert establishes probable cause only if that dog is reliable. See id. at 1283. But none of this means we mount a full-scale statistical inquisition into each dog’s history. Instead, courts typically rely on the dog’s certification as proof of its reliability…Of course, if a credentialing organization proved to be a sham, its certification would no longer serve as proof of reliability. But the judicial task, we hold, is so limited: to assessing the reliability of the credentialing organization, not individual dogs. And in this case there is no suggestion that the California Narcotic Canine Association, the organization that credentialed the drug dog in this case, is all smoke and mirrors.

[T]he dog’s records—spanning some 200 pages in the record and covering 7 years’ worth of data—reveal that its alerts have identified a seizable quantity of drugs . . . 58% of the time. . . . While we hesitate to get into the business of affixing figures on probable cause, if we were pushed to do so we would hold this to be enough. After all, probable cause doesn’t require an officer’s suspicion about the presence of contraband to be “more likely true than false.” Texas v. Brown, 460 U.S. 730, 742 (1983)…

[W]e hold that evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog‘s reliability for purposes of determining probable cause— especially since training and certification in this state are not standardized and thus each training and certification program may differ with no meaningful way to assess them.

Accordingly, we conclude that to meet its burden of establishing that the officer had a reasonable basis for believing the dog to be reliable in order to establish probable cause, the State must present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog‘s reliability in being able to detect the presence of illegal substances within the vehicle.

While the Florida Supreme Court still begins with the notion that magic sniffing dogs, with the right papers, can be reliable, at least the court recognizes one of the critical failings noted by the report of the National Academy of Sciences, that law enforcement “creates” a forensic science, validates it, and then creates its own organization to certify it.  In other words, one lies and the other swears to it.

Of course, even the Florida decision fails to address two other pervasive failings in what has become generally accepted forensic science, that it’s never been scientifically validated using real scientists and real scientific method, and that it’s performed under uncontrolled conditions.  We know this because whenever its tested under controlled conditions,  it comes out the other way.

The problem we’re saddled with is that there is a wealth of junk science already deeply embedded in law enforcement and the legal system that could never pass muster under Daubert if it was given any meaningful scrutiny.  As it’s already been accepted despite its lack of scientific basis, courts just keep pushing it along as precedent, even if it holds no scientific water.

The 10th Circuit decision provides as clear a picture of abdication of responsibility for allowing junk to be perpetuated, but goes a step further.  Rather than acknowledge its gatekeeper role when it comes to junk science in the courtroom, the Circuit has handed its responsibility over to the California Narcotic Canine Association, then wiped their hands and walked away.  Mind you, rather than require the prosecution to prove that the credentialling agency wasn’t a law enforcement controlled sham, they shift the burden to the defence to prove that it wasn’t “smoke and mirrors,” because the defense certainly has the inside dirt on how the run the show.

While the Florida decision offers a small opening in the junk science door, at least the court shows the presence of mind not to rubber stamp junk science because it’s been going on for decades.  It may not be much for law enforcement to fabricate some self-serving statewide standards and pretend that makes their magic dogs reliable, but it’s a start.

Someday, courts may be willing to take a hard, fresh look at all the wonderful forensic science that has been used to stop people, convict people and lock them away, despite the reality found by the National Academy of Sciences that law enforcement has just been making this stuff up all along.  But then, if they do, it will be pretty darned embarrassing for judges to have to face the fact that they’ve been played for a generation by charlatans with make-believe science.

Which brings us to the only real question that matters:  Will judges be willing to look historically foolish rather than enable the conviction of innocent people based on junk science?