All the hoopla that goes along with the freeing of the innocent, the righting of the wrong, must certainly make a guy in prison for 9 years, convicted of a capital murder he didn’t commit, feel pretty darn good.  But it’s not the same as compensation for the years lost.

So when Douglas Warney was finally freed with the help of the Innocence Project based upon DNA proving that he was innocent of the crime, it didn’t seem much of a stretch to expect the state to pay under the wrongful.  That was a mistake.  His claim was dismissed, and affirmed on appeal.  Peter Neufeld took it to the Court of Appeals, where the case was argued in February.

Via the Gotham Gazette, Emily Jane Goodman (who happens to be a Supreme Court Justice in her spare time) explained the state’s position:

Arguing for the state, attorney Alison Natnah told New York’s highest court that Warney had “no entitlement to compensation” for his years spent in prison since he should have been able to foresee that his own admission and self-incrimination, which she called “voluntary,” would lead to his conviction. In other words, it was Warney and not the government who was responsible for his conviction and the years of incarceration. That it is wrongful and unjust — not just a mistake — is insufficient to allow the claim to proceed argued Natnah, who has recently been recommended by Sen. Charles Schumer for a federal judgeship.

A curious argument indeed.  It was Warney’s fault for confessing, falsely, and the state should be off the hook.  Warney should have known better, as a brilliant rocket scientist.  Actually, Warney wasn’t quite so smart.

Douglas Warney, a man with a history of mental health issues, an eighth-grade education, and advanced AIDS, called the police stating that he had information about a homicide. He knew the victim: he had cleaned the victim’s house and shoveled snow from his driveway just two years before the murder. Warney was interrogated for 12 hours by police, he confessed and provided details that only the killer could know – that the victim was wearing a nightgown, that he had been cooking chicken, and that the killer cut himself with a knife and wiped it with a tissue in the bathroom.

The sophist’s circle makes one wonder how we can blame the police if Warney knew so much about the murder.  Wasn’t it the absolutely, totally, completely innocent defendant’s fault that he misled the cops?  Logic, however, flows in the opposite direction.

Given that he has been ruled out as the perpetrator, “How could Warney have known that the weapon was a 13-inch serrated knife, and that a victim was stabbed 15 times?” [Court of Appeals Judge Robert] Smith wanted to know. He prodded the prosecutor to tell the court how Warney could have had these facts — unless the police told him. Natnah was unable to provide an explanation that seemed to satisfy Smith. Meantime, Chief Judge Jonathan Lippman asked how Warney’s “confession” could be considered credible if “90 percent of what he knew was planted in his mind by the police,” especially when one week earlier the police had taken Warney to a psychiatric hospital.

While it all seems pretty obvious, bear in mind that Warney has lost up to this point, his claim being dismissed by Judge Renee Forgensi Minarik of the Court of Claims, who held that the fact of Warney confession overrides why he confessed. 

The New York Times editorial argues for the Court of Appeals to reverse:

New York State has primarily argued, and lower state courts have rashly agreed, that Mr. Warney’s false confession makes him ineligible for compensation because the Unjust Conviction and Imprisonment Act bars recovery for those whose own misconduct caused their conviction.

That limit was meant to weed out deliberate misconduct to gain some tactical advantage, say a confession intended to conceal a loved one’s guilt. Mr. Warney’s false confession was not the product of misconduct. It was the reaction of a particularly susceptible individual to common police interrogation techniques that sometimes cause innocent people to confess. That phenomenon was illuminated in a friend-of-the-court brief filed by the American Psychological Association.

It would seem definitional that a false confession, defined as one obtained via police manipulation, cannot constitute misconduct that would preclude an innocent defendant from obtaining compensation.  While a tactical confession would suffice, the courts ought be up to the task of distinguishing between the two.  The per se rule that a confession alone is sufficient to defeat the claim of an innocent and wrongly convicted defendant should be reversed, not only on the obvious humanitarian basis but because it’s irrational.  The innocent victim isn’t to blame for the police feeding him, manipulating him, coercing him to confess.

There remains, however, an issue beneath the surface of this claim for compensation, and at the heart of the underlying problem.  As long as the courts remain wedded to the notion that intentional, deliberate, methodical deception by police constitutes a perfectly lawful and appropriate law enforcement method, they encourage the police to say anything, do anything, to nail the bad guy. 

Except it’s not always the bad guy they nail.  The same methods, like their beloved Reid Technique, that are so effective in obtaining confessions from the guilty are equally effective in obtaining confessions from the innocent.  With the encouragement of decisions like Whren, the police use pretext to seize the innocent as well as the guilty, and we can’t even begin to know how much more often since their mistakes are concealed by their letting them go on their way.

If the police are not merely entitled to lie, cheat and steal to get their guy, but encouraged to do so, then there’s a perverse logic in the state’s argument against Warney’s claim.  Why blame the cops for manipulating a mentally challenged person into confessing when truth and honesty play no role in their job?  They got a man to confess.  That’s what we pay them to do.  That’s what the courts tell them to do.  Nobody made Warney confess, as the state now argues, provided there’s nothing wrong with manipulating the innocent into falsely confessing.

The courts can’t have it both ways.  It’s time to jump off that slippery slope of encouraging law enforcement deceit if they can’t embrace the natural outcome.

The  WSJ Law Blog wrote about a phenomenon that most think is all but extinct in the United States, debtor’s prison.  Guess what?

More than a third of all U.S. states allow borrowers who can’t or won’t pay to be jailed. Judges have signed off on more than 5,000 such warrants since the start of 2010 in nine counties with a total population of 13.6 million people, according to a tally by The Wall Street Journal of filings in those counties. Nationwide figures aren’t known because many courts don’t keep track of warrants by alleged offense. In interviews, 20 judges across the nation said the number of borrowers threatened with arrest in their courtrooms has surged since the financial crisis began.

This is somewhat misleading, as the warrants are issued for the failure of debtors to appear and being held in contempt, not simply because there is a debt.  Still, but for the debt, there would be no compulsion to appear.  No matter how one spins it, it’s all about the debt.

The unspoken problem is that debt collection has become a cesspool, with failed service, bad information generating flawed complaints and the wrong people being subject to unwarranted litigation.  The news about these problems is pervasive, but there has been little mentioned about the consequences, the jailing of those whose never knew they were in trouble to begin with.

In September 2009, Jeffrey Stearns, a concrete-company owner, answered a knock at the door from a Hancock County, Ind., deputy sheriff. The deputy was holding a warrant to arrest Stearns for not paying $4,024.88 owed to a unit of American International Group Inc. on a loan for his pickup truck.

After being handcuffed in front of his four children, Stearns, 29 years old, spent two nights in jail, where he said he was strip-searched and sprayed for lice. Court records show he was released after agreeing to pay $1,500 to the loan company. “I didn’t even know I was being sued,” he said, though he doesn’t dispute owing the money. “It’s the scariest thing that ever happened to me.”

This isn’t about being sympathetic to those who lived high on the hog on someone else’s money, then ran from their responsibility when the bill came due.  A debt is a debt, and repayment is part of the obligation that one undertakes when accepting the money.  If a loan was taken foolishly, without intention of repayment, then they deserve to face consequences.\

But those consequences don’t include arrest and incarceration. 

Most of the people unable to repay their debts aren’t intentional deadbeats, but people who have been swept up in the very same economic collapse that affected everyone.  The businesses to whom the debt is owed know it.  The judges ought to know it too.  That circumstances have precluded a person from repaying (you can’t get blood from a rock) doesn’t mean that the lender isn’t harmed or isn’t due repayment, but that the debtor isn’t malevolent, but without the power to comply.  We don’t jail people for misfortune.  Not even foolish misfortune.

In those instances where a debtor engaged in fraud, accepting money with no intention of ever repaying, the situation is different.  Fraud may well be a crime, and should that be the case, then the criminal law provides recourse.  Let the debtor seek the aid of prosecution, affording the debtor and alleged criminal the full panoply of rights and protections given anyone accused of a crime.  If fraud is proven, the impose the punishment appropriate for the crime.  Not because it’s a debt, but because it’s a crime to defraud.

The rationalization of lawyers representing lenders, assuming they aren’t the ones suing the wrong people without proper papers, minimal diligence and a modicum of regard for misapplied process, is severely misguided.  They explain that the debtor owes money and they are entitled to compel the miscreant to come to court and disclose the whereabouts of their assets, upon pain of incarceration.  This is an anachronism that, sadly, remains part of our common papers, the old fine or imprisonment language we use to make people do as we demand.

This is nothing more than a throwback to the debtor prison days, when cash was king and the poor deserved whatever they got.  It’s time we adjusted both the language and the reality to reflect the fact that we no longer jail people for debts.  Yet that doesn’t seem to be the level of concern.

But now a backlash is building against use of the debtor’s prison. It’s a reaction to sloppy, incomplete or even false documentation that can result in borrowers having no idea before being locked up that they were sued to collect an outstanding debt.

Certainly those who are jailed due to sloppy, incomplete or false documentation shouldn’t be.  That this is characterized as a mere “backlash” is outrageous.  The idea of jailing someone as a product of a wrong committed by the party seeking the jailing shouldn’t present any question at all.  Of course it’s wrong, and this should never happen or be allowed to happen.  This isn’t a backlash at all, but a gaping flaw in the legal system that demands the immediate attention of the courts and a complete fix.  Even this appears to be mired in controversy, though there should be nothing controversial about it.

In the meantime, what about instances where the problem isn’t sloppy, incomplete or false documentation?  This doesn’t appear to be of sufficient concern to the courts to put a stop to the jailing of debtors.  Few of us realized that this nation, with an incarceration rate that makes Banana Republic dictators chuckle, still has debtor prisons.  We do, and we have judges willing to sign the warrant to put the poor in jail for being poor. 

While we fight for those who are accused of crime to prevent them from going to jail, we don’t even notice those who are going to jail without being accused of any crime at all.  Anybody have a nice platitude to justify this?

An email came in this past week from a relatively new blawger.  His blawg is exceptionally good, funny, thoughtful, bold and pointed.  He showed no fear of taking a stand.  But up to that point, the comments he received were generally supportive, interesting or funny.  This time, a commenter attacked.

The transition from being read by a few friendly folks, who find a blawg and stick around because they share the perspective of the author, to gaining interest outside a small circle of friends can be jarring.  We all prefer to hear that others agree with us, think we’re not dead wrong if not awfully darned right.  It’s natural.

Many blawgers actively avoid anything that might make a reader not agree with them.  At most, they offer tepid opinions, then qualify them so that no one could ever be offended.  They sacrifice strength and clarity, even having a point, for fear that it will upset someone, turn them away, make them hostile.  They cannot bear the idea of someone not liking them.

The difference between law blogs, blawgs as I prefer to call them to distinguish blogs that are written by or about the law from marketing blogs, aggregating blogs and weblogs that catalogue the daily activities of people, is that they are written by men and women whose purpose is to express a point of view on a subject of overarching public interest, the law. 

While blawgs are hardly as in-depth as law review articles, they do offer substantive information and, to some greater or lesser extent, reflect a perspective on legal issues.  They stand for something.  Any time you take a chance, put an idea into the public marketplace and subject it to peer (and general, as you have no control over who reads what you write), review, there’s an excellent chance that someone is going to disagree with you.

If you can’t handle disapproval, then you should not have a blawg.

At Above the Law, David Lat pulled off a monstrous coup in getting Mark Herrmann, formerly of Drug and Device Law, who moved from Jones Day partner to in-house, to write a column.  The comments following Mark’s first column were generally directed toward his physical beauty, with the commentariat ignoring the fact that under no other circumstances would the riff-raff have access to so accomplished a lawyer.  Yet they preferred to discuss his appearance than express their appreciation for Mark’s taking the time to write for them.

Subsequent critics of Mark Herrmann’s columns argued that they wanted to hear other aspects of in-house life rather than what Mark chose to write about.  Lat responded, in the comments, that if there was another in-house lawyer who wanted to write a column about the subjects the commenters raised, he was open.  But he added some qualities that were required for the job.

As for the commenters (the delightful present company), (1) using a pseudonym doesn’t prevent the writer from getting his or her feelings hurt (just ask Roxana of “Notes from the Breadline”), and (2) if you can’t stand the heat, then get out of the kitchen. If you’re going to write on the web, you have to be ready to be insulted, attacked, and mocked. If you can’t handle a few nasty words, then you don’t belong on the internet.

If lawyers are judged by the caliber of enemies they make, you’ve done an exceptional job. Congratulations.

I can only dream of my puss gracing a dart board somewhere in the bowels of the Department of Justice.

Don’t fear the attack or disapproval.  Embrace it.  There’s no way you can stand for something without generating enemies online, as the universe of readers will naturally include those who will disagree and feel compelled to let you know that out there, in that vast digital wasteland, there is someone you don’t know who comes to your home to enlighten you with the fact that you are wrong, stupid, ugly and evil. 

For those who seek validation from the internet, you don’t find it in approval, as there will always be blithering idiots who agree with you as well as those who don’t.  You are validated by those who attack you, for you’ve said something that mattered enough to make them angry.

For the rest of us, just take it as proof that you’re alive.  Only dead lawyers have no enemies.  If no one says mean things about you, then you’re doing something very wrong.

Following up on the Law School edition, the issue of leaving school, license in hand, with an adequate breadth of knowledge to go out and represent living, breathing human beings remains problematic.  That would seem a reasonably uncontroversial idea, but it’s not.

When someone sent me a link to a post at Shilling Me Softly, a blawg dedicated to exposing the lies sold to those applying to law school with the expectation that becoming a lawyer is a guarantee of wealth and prestige, I saw much of the anger and confusion that gives rise to the conversion of law school inadequacy to lawyer incompetence.

Before going there, I should note that much of what Kimber Russell and the scambloggers (the name given the disaffected young lawyers who are angry at being deceived by law schools) say is absolutely true.  Neither law schools nor the ABA, nor the ancillary forces that support them, have been honest with law students, dealt with producing far more lawyers than society can absorb or sucked money (as reflected by law school debt) from students in the worst investment they will ever make.  But these are all problems I’ve discussed many times before.

That wrongs have been done to law students doesn’t lead to Russell’s conclusion that the nascent lawyer is entitled to do anything they can to make a buck.  She leads into this with support for the law student who came up with Shpoonkle.

One might expect that a future unemployed attorney who goes to such lengths to forge an innovative career for himself would be lauded for his efforts. Not so much, as evidenced by Scott Greenfield in his popular blog, Simple Justice.

But Mr. Greenfield is operating from the false assumption that those attorneys seeking clients from this type of online service are incompetent and unable to obtain clientele any other way.  What about young attorneys who simply have no funds to start a traditional solo practice because they are already carrying hundreds of thousands of dollars in non-dischargeable student loan debt?

§§§

I don’t know where you’ve been, Greenie, but the legal “profession” has been on the downslide for some years now, and once the ABA opened the door to legal process outsourcing, we’ve seen plenty of services previously done by expensive attorneys being shipped offshore to be done for pennies on the dollar.  And that is all at the clients’ behest, as they have finally awoken to the fact that legal fees have been wildly overvalued for decades, and much of the work can literally be done by any creature possessing opposable thumbs.

Why shouldn’t client demand drive the market for legal services, especially nowadays when we have such a surfeit of licensed attorneys?  Why is the mere notion of using technology to pair needy clients with attorneys who need the work comparable to working the corner, as Mr. Greenfield so eloquently puts it?

The reality is undeniable.  If I was in high school today, I would emerge a felon.  There was the time I replaced the frog reproduction movie in biology with the reel of Sally Rand, the bubble dancer, I found in my grandfather’s sock drawer. 

Then there was the time we took everything, and I mean everything, out of the algebra teacher’s classroom and she found us sitting on the floor when she came in.  She cried, then got the gym teacher to berate us for making her cry. Or the time I grabbed the 20 gallon bottle that looked like a hookah from chem lab and tried to sneak it out without the teacher knowing.  He saw and chased me (carrying this monster bottle) around the outside of the school, past every classroom window on the first floor.  Yeah, I was a prankster.

Somehow, I was never arrested. Never suspended.  Not even given detention.  I was called to the assistant principal’s office to be chewed out for nearly giving Mr. Corso, the chem teacher, a heart attack by making him run after me, but the assistant principal found it impossible to keep a straight face.  Yeah, I was a prankster then.

Today. I might be a felon.  A recidivist.  There’s a good chance the Sally Rand movie would place me on the sex offender registry.  I wouldn’t be a lawyer.  I wouldn’t have gotten into college.  I might be forced to live under a bridge.  My opportunities would be limited to street sweeper or a life of crime.  That’s what becomes of pranksters today.

Three kids in Woodbridge, New Jersey, not far from where I grew up and went to school in Metuchen, pushed  some live chickens through a window into their school. 

Cesareo and Tyler Bruno said they bought live chickens from a store in Newark and pushed the chickens through a window at Woodbridge High School in the middle of the night. A janitor found them in the morning before school started.

“I am very worried,” Pater said.

Pater said he’s not happy about the charges and of not going to the prom.

“For us not to be there, it would just be heartbreaking,” Pater said.

“It’s not fun anymore. No one knows how to have a good laugh,” Anthony Cesareo added.

Kids.  Anything for a laugh.

It may have been a joke to them, but police said it wouldn’t have been so funny if a student got hurt.

Get hurt how?  Chicken flu?  Slip on chicken shit feces?  Feather allergies?  Is there a significant chicken threat to the safety and welfare of students that I’ve missed?

I suspect there is.  From just a bit of poking around, I see parents, police, politicians and especially school administrators speaking of catastrophic concerns for children.  Apparently, everything is a potential threat.  There is an expectation that by insulating children, bubble-izing them, they will never skin their knee (and become infected with a life-threatening bacteria), become overheated (and die of heat exhaustion on the playing field) or be exposed to language or ideas that will turn them into serial killers or drug addicts.

I’m a parent.  I understand and appreciate the concerns a parent has for the safety of their child.  But this “new normal” belief that we can simultaneously eliminate every potential threat that conceivably exists while affording them the joys of childhood (provided they enjoy playing “peacemaker,” by “creating ‘a roundtable with a mediator and write a peace accord “).  Where does this fantasy world exist?

It’s not enough that children today will never have the horrible experience of falling down on the jungle gym and skinning their knee.  Heck, they don’t even get cavities anymore unless their hygiene is just awful.  They never learn how to deal with hurt feelings because no one is allowed to say a discouraging word.  And if they push a couple of live chickens through a school window, they will be labeled criminals.

The more I think about it, I wouldn’t just be a felon today.  I might be staring down the firing squad.  What normal person who grew up when I did wouldn’t?  And yet we facilitate, enable and empower those we entrust with our children to turn them into criminals.  We have failed as parents, and we have done more harm to our children than a couple of chickens ever could.

H/T Turley

There have certainly been a widespread public outcry against the use of full body scans or enhanced patdowns (feel ups?) by the TSA to protect us from the terrorist threat of old white women in wheel chairs and infants in diapers.  Has any initiative under the purported need of protecting the public met with such public disapproval?

No matter.  Stewart Baker posts at  Volokh Conspiracy that the government, in its largesse, has heard our cries and, because it’s good and benevolent, is trying to soothe our anguish.

I testified yesterday at a government oversight hearing on TSA.  It was a through-the-looking-glass experience for anyone whose memory extends back to, well, 2007.  That’s because the Republican members mostly lined up to bash whole body imagers and talk about privacy while the Democrats mostly spoke about the importance of air passenger security.  Government Oversight chairman Issa and subcommittee chairman Chaffetz were particularly vocal in scorning TSA’s current approach. This is reminiscent of the “big switch” on privacy in the late Clinton years, when Republicans began attacking the Clinton administration on civil liberties grounds.

When your party doesn’t control the Executive, the playbook says you should attack the administration on almost any basis.  So the switch isn’t a complete surprise.  But attacks like this have consequences, and the most obvious consequence of a successful campaign against TSA will be more reliance on metal detectors, which have no hope of catching any of the bombs al Qaeda has used since 9/11.

Baker’s Dodgson-esque experience likely won’t surprise anyone with an iota of cynicism any more than it did him.  It’s not that politicians lack principles, but that their guiding principle is the side opposite of their adversary, whatever that may be.  But where he goes from there is curious.

Still, there are things TSA could do to improve security and passenger dignity, and they got some attention yesterday.  TSA should spend more time looking for terrorists, and less looking for weapons. 

Why, that sounds remarkably like profiling.

We could see a TSA “known traveler” program in which passengers can volunteer more information in exchange for streamlined screening . . .

Why, that sounds remarkably like trading off the inconvenience of worthless searches for giving up one’s personal information to the government and becoming a trusted traveler.  Here’s the story he told the congressional committee:

Imagine you are among the majority who don’t see what the fuss over travel data is about.  You authorize TSA to access data about you – travel data,say, and perhaps criminal or other records.  When you show up for your flight, your boarding pass has already been coded to show that you’re entitled to use the trusted traveler lane.  Good thing, too, because that line is much shorter.  The TSA official checks your ID and boarding pass as usual, but he waves you into a fast lane, where the most aggravating and time-consuming security procedures have been eliminated – the liquids and laptop inspections, perhaps the shoe inspection too. 

No wonder the trusted traveler line is shorter; it is moving twice as fast.  Every once in a while, though, scanning the boarding pass sets off a beep, and the officer waves you into a standard line for the usual drill.  This is a random event, programmed into the system in advance based on all the data that TSA has.  The line is still a lot faster, because only a few of the trusted travelers end up in the standard inspection, but that random event makes it difficult for terrorists to game the trusted traveler program. The upshot would be faster inspections, less hassle, and more security.  More privacy too, for those who think that giving up a little information is a fair trade for fewer scans and patdowns.

After all, most people would be happy to tell the government anything it wants to know to be on the fast line.  Whatever could there be to hide?  We’re all good, law-abiding citizens.  Hardly terrorists.  We have no secrets, nothing to hide from our own government.  And we really hate the enhanced pat downs.  And we might even avoid having to take off our shoes and walk around barefoot on that dirty, disgusting airport floor.

From the outset of the TSA’s initiation of full body screenings and enhanced pat downs, pretty much everyone under the sun with any knowledge of security said it was an empty, worthless gesture despite the annoyance, intrusiveness, offensiveness felt by the public subject to it.  Should the government, in its benevolence and concern for our feelings, give it up in exchange for, say, the authority to profile combined with gathering as much of our personal information as it wants,

If this was the plan from the outset, it’s worthy of applause as being one of the most ingenious and well-conceived ever employed by the government.  I wouldn’t have thought the government capable of coming up with, and properly executing, such an involved scheme to circumvent the Constitution and get us to not only go along, but to beg them to make it happen.

Baker is quite right, that much of this country would adore the opportunity to beat the lines, the searches, the ugliness, at our airport gates.  Much of this country has no concern for their privacy, and would never see an issue with surrendering what little personal privacy remains for the transitory benefit of being in the fast lane.  And those who bristled at the idea would be begging to land on the potential bad guy watch list.  After all, refusal to play along, to give it up to the government, obviously suggests you have something to hide.

This is really a brilliantly nefarious plan, if plan it is at all.  Personally, I think they just lucked into it as the government could never produce such a coordinated, long term scheme to get the public to willingly surrender itself.  They just see the opening now and can’t help from exploiting it.

After all, wouldn’t any red-blooded American do anything to get through the airport faster?  Anything?

Rarely have I found myself in agreement with the politics of Wisconsin lawprof Ann Althouse, but that doesn’t mean she hasn’t raised significant issues or has the right to speak out about them.  Thus, any disagreement is meaningless in the face of  this missive that appears at her blog.

The caveat is that this may be a joke, or a threat that is only meant to scare.  For all I know, this is the newest meme by a couple kids who think it’s hysterically funny that anyone, particularly Althouse, took note of it.  Whatever it is, it is.  Here are brief excerpts.  The original goes on for four pages.

WE WILL FUCK YOU UP. We will throw our baseballs in your lawn, you cranky old pieces of shit, and then we will come get them back. What are you gonna do? Shoot us? Get Wausau Tea Patriots to form an ad hoc militia on your front lawn? That would be fucking HILAROUS to us. You could get to know the assholes on your side in real fucking life instead of sponging off the civil society we provide for you every single day you draw breath.”

Package 1: Pay your damn dues, you Union Freeloading pieces of shit

You are getting fat on union money. You are getting fat on our tax money. You are getting fat on an undeserved bully pulpit that you got from credibility won from the hard struggles of public sector workers, university professors and unions throughout history, and that increased dramatically in scope due to OUR MOVEMENT. So PAY YOUR DUES. We demand:

1) Because you have taken the words from our mouth — A complete recantation of all lies about #wiunion (not lies in leagalese – lies in the commonsense moral definition of the word. Choose an ethical system that you believe is fair, run it by us, and we will let you know which posts violate it) posted on your personal blog,in all comments sections of all other blogs, on your flickr account and your youtube account, spoken in podcasts or on bloggingheads, or said out loud anywhere in Madison. Take it all back. We don’t trust you, so we will draft a statement for you.

2) Because you have taken the bread from our table – a 5,000 dollar donation(each) in your own names and made public to the Industrial Workers of the World general fund, the Bradley Manning Defense Fund, the Recall Alberta Darling effort, a group of our choosing that advocates for the pro-democracy movementsin #libya, #algeria, #iran or in Pizza for the Protesters (we prefer Ian’s, the Nickelor Roman Candle, but any friendly place will do – if you attempt to order us shitty pizza or pizza from an unfriendly restaurant we will eat it and consider are demands still unmet).

3) Because you have attempted to take our very safety and indeed our lives,because you have incited violence against us and above all because you have proven yourselves inadequate to the grave and solemn responsibilites of Citizen-Journalism – Your silence. You want to make everyone shut the fuck up? Be the change you seek. We demand ZERO more posts about us, ever. We demand the admin pw for all of your shit to be publicly posted on a movement friendly facebook group or 4chan. We demand to be allowed to vet everything you post before you post it and edit it for any and all lies related to #wiunion, #wewarewi,#union, #usuncut #opesr #wikileaks #solidarity and#allthatisgoodandholyonthisearth. We demand that you Delete Fucking Everything.

4) You will never, ever, ever, ever in your motherfucking life come within 20 feet of the statue of Hans Christian Heg. Althouse, you are a job-hopping carpetbagger from New England. Meade, you are an obnoxious right-to-work Zombie from southern Ohio who only lives here because its apparently the only place in the world you can get laid. Heg is OURS. We are WISCONSIN. You don’t fucking touch Hans Christian. Ever. And that goes double for the Lady on the other side.

Package 2: Move the Fuck out of Our City

Get out, and stay out. Far out. Meade — You ain’t no man for this city. We’re out on the streets every day, all day. The 77 square is not for y’all. You say we’re from out of state? Bullshit. You’re from fucking out of state. We’ll show you just how fucking Madison we are. Althouse, we will ruin your goddamn career, your comfort, your pocketbook, your sense of safety and wellbeing, and your life. And don’t try to pull up at another one of our cities either. Don’t like your AAUP card? Turn it in. If you want to carry water for Koch and the Chamber, they can foot the fucking bill for it. Get a job on the Tea speaking circuit or with AEI or some other garbage think-tank in DC or Claremont or whatevs. We have friends everywhere. All land-grant University towns are occupied. All major cities are occupied. Everywhere with a critical mass of smart, uppity people is Occupied. If you want to advocate for national internetless, right-to-work rural fortress state hell with no transit in or out, you can live in it. If you want to defend Falangist Michigan, move to Pontiac. If you want to make us all work for Olive Garden you can fucking eat there. Why don’t YOU go shop at Wal-Mart. Because the shit you wear looks like it comes from places like Jazzman and Bop and we work there too and we aren’t having it any more. No more free rides, baby.

If you have not acceded to our demands within a week, it is ON LIKE DONKEY KONG. WE AREN’T GOING ANYWHERE. EVER. WE LIVE HERE 100% OF THE FUCKING TIME. YOU CAN’T BAN MADISON FROM LIVING IN MADISON, BUT WE CAN SURE AS SHIT BAN YOU. WHO ARE YOU GONNA CALL? COPS FOR LABOR? THE CHICKENSHIT TEA ASSWIPES WHO ARE SCARED SHITLESS OF THE TEAMSTERS TRUCKS? THE NATIONAL GUARD? SCOTT WALKER? NO ONE IS GOING TO COME AND CRACK DOWN ON US FOR YOU. THERE IS NO CAVALRY. ITS US VS YOU ON THE STREETS OF THE CITY GOING AS FAR AS IT HAS TO GO UNTIL A ) WE WIN OR B ) DOOMSDAY.

Chances are that there is nothing behind this, empty threats by idiots who will revel in the reaction they get.  I mean, “on like Donkey Kong?” Yet Ann Althouse and her husband Meade don’t need to concern themselves with this terribly funny, deliberately threatening, type of crap because she has disagreed with their politics by her public writings.

If this is real, then these people are sick.  If this is a joke, then these people are sick.  If you think this is funny or deserved, then you’re sick too.  You can disagree with someone all you want, but this is not a legitimate way to deal with it.  Ann Althouse is no teacup, too fragile to stare down disagreement, and it’s unlikely that this insane threat is going to cause her to pause in the expression of her thoughts for a second.  Still, nobody needs or deserves garbage like this.

And if this is a prank by a couple of kids to see whether they can get a rise out of someone whose words carry as much weight as Ann Althouse, then I hope to God that their parents give them a damn good spanking and ground them for a long, long time.

You vehemently disagree with someone on the internet?  Atlhouse?  Me?  Anyone?  Great, start a blog, write to your heart’s content and let the merit of your views draw in readers and persuade people to accept your point of view.  Anything else is garbage.  This letter to Ann Althouse, real or joke, is garbage. 

Update:  The author of the Althouse screed, Jim Shankman, is interviewed by Dan Riehl at Breitbart’s Big Government.

Shankman is currently unemployed, claims to not be a member of a union and says he most often works as a dishwasher when employed. He insists that he does not advocate for violence and in some ways sought to distance himself from his “manifesto,” while also acknowledging authorship. He says he’s done with the issue and was simply giving voice to thoughts and rhetoric he “regularly hears in the street.”

“I’m done with it,” said Shankman, adding that he intends to pull back some from social media. However, he did not back away from the manifesto, claiming he wanted to elevate the idea and that if others in Madison wanted to embrace it, then so much the better.

Welcome to the wild world of whackjobs on the internet.

H/T  John Burgess (below)

At PrawfsBlawg, Ari Ezra Waldman announces with some pride that he’s given testimony to the Hawaii Senate in support of a bill to conceal the names of “harassment victims so they could bring lawsuits against their attackers.”  While this suggests civil actions, it apparently covers criminal prosecutions as well.

The bill currently being considered allows certain domestic abuse victims to sue as “Jane Does” or “John Does.” It is an important bill and one, I must admit, I was surprised to learn was not already an option in every jurisdiction.

First, “John Doe” and “Jane Doe” filings do not prevent defendants from investigating and preparing defenses. It is a fallacy to suggest that such complaints are clouded in mystery until the moment trial begins and the plaintiff is sitting in his or her chair. Filings with pseudonyms shield identification and private information from the public, not the parties involved in the case.

it’s unclear what he means here, whether this is to suggest that the defendant, being guilty and all, obviously knows who he harassed, or that the defense will be given names while public documents will have the names concealed.  If the former, then Waldman is, well, nuts.  If the latter, then the law is either a sham as far as having any real purpose, since the defense can disclose the names publicly, or, assuming the defense doesn’t do so, the purported victim will be able to conceal their victimhood from the next person who attempts to research how many times a person raised allegations of harassment.

Second, while some evidence suggests that pseudonym filings make fact-finders wonder what would cause the plaintiff to hide his or her identity, judges can head this off at the pass by issuing clear jury instructions that the “John Doe” or “Jane Doe” filing means nothing with respect to the credibility of the defendant or his witnesses. Jurors are surprisingly smart when it comes to compartmentalizing inadmissible nonsense when given clear instructions from a judge.

Note the strong empirical basis for asserting that jurors can’t be prejudiced because they are “surprisingly smart” about this sort of thing.  I assume this comes from Waldman’s vast jury experience and the fact that all juries are the same anyway.

Third, open access to the courts is indeed an important value, but it is not absolute. Even if we require “strong counterveiling reasons” to insert some measure of anonymity into the process, those reasons exist. Domestic abuse is a grave problem, both in straight and gay relationships, and coming forward knowing that you will be identified as a victim of domestic violence is emotionally daunting and physically dangerous.

Physical danger is one thing, and the protection of the accuser from harm is a strong countervailing reason to conceal someone’s identity.  But from whom?  If it’s domestic violence, “a grave problem,” does the defendant not already know who his domestic partner is, whether or not the accusation is true?  Certainly, threats of physical violence aren’t going to come from the public, so who’s left to threaten the accuser?

But the trick isn’t the threat of physical violence, but the “emotionally daunting” nature of accusing someone of a crime.  No doubt it is emotionally daunting.  As it is in many allegations of crime.  As it is supposed to be in order to prevent false accusations. 

Finally, as to the unnecessary point, I am normally sensitive to this argument. Unnecessary laws are bad laws. But, this law is not unnecessary. In Hawaii, judges have routinely denied “Jane Doe” or “John Doe” filings without even considering a balancing of the harms. In fact, the drive for this bill came from a woman’s case where a judge rejected the premise of pseudonym filings out of hand.

And once again, a single case gives rise to a new law.  While Waldman neglects to mention the impetus for this bill, the ongoing theme of a law developed because of one bad outcome has become a meme in the law.  Omitted from his analysis is that judges have the power to conceal a purported victim’s identify.  That they don’t use it to Waldman’s satisfaction isn’t a reason to enact a law to conceal it, but a reason to appeal if the judge rejects the application improperly.  Of course, defendants don’t get interlocutory appeals, so if the judge granted it inadvertently, the defendant is screwed.

Of course, not everybody is in favor of this law.  The Hawaii Office of the Public Defender, the American Civil Liberties Union of Hawaii and practicing lawyers oppose it.  But what would they know, compared to a lawprof? 

And lest I be unfair to Waldman, he’s not alone in his support of the bill.  Standing beside him is my old pal, Professor Danielle Keats Citron, of the University of Maryland Law School, who invited Waldman to the party.

Professor Citron’s testimony focused on female victims of cyberharassment — a growing problem indeed.

Come on.  You had to guess that Danielle had her finger in a law that was so fundamentally wrong and ill-conceived.  After all, the delicate teacup ladies of the internet can’t possibly survive without their advocate of cyber civil rights.

Riccardo McCray’s defense lawyer, Joseph J. Terranova, called them human cockroaches.  It was such an apt image that prosecutor James F. Bargnesi  sought a gag order to shut Terranova down.

McCray is on trial in Buffalo for the City Grill Bloodbath.

Twenty-four-year-old Riccardo McCray is charged with first- and second-degree murder, along with attempted murder and weapons possession in the Aug. 16 shooting outside the City Grill that left four dead and four wounded.

It’s a big case, and who doesn’t want to be in on a big case?  Not these guys :

One is a paranoid schizophrenic who helped McCray write letters while locked up with him in the Erie County Holding Center.

Another jailhouse informant, a crack cocaine abuser, spent recreation time with McCray on the Holding Center roof.

A third accuser, in the Holding Center for alleged sex crimes, sent nine letters to prosecutors offering to open up about his talks with McCray as a way to “seek atonement.”

A fourth witness never talked with McCray face to face but communicated through air ducts in the Holding Center, then approached prosecutors because “I needed a favor.”

The problem stems from the fact that McCray, whose entire criminal history consists of one conviction for disorderly conduct, an non-criminal infraction, but whose nickname according to the jailhouse snitches is “Murder” or “Murder Matt,” couldn’t be identified by one of the victims, Tillman Ward.

Police tried to get Ward to talk for months without success. He recently changed his mind after prosecutors offered to go easier on him in on felony weapons charges that he faces.

Tillman Ward, one of the victims in the carnage outside of City Grill — identified McCray as the gunman in an interview with police detectives last weekend at the Erie County Correctional Facility in Alden, where he’s now jailed.

Miraculously, Ward ID’d McCray two days before jury selection, promise of leniency in hand.  But the gap in proof caused a loud bell to go off throughout the Erie County Holding Center.  It was the sound of opportunity, audible only to the ears of human cockroaches.

“We frequently see this in this kind of case. The human cockroaches come out of the shadows in all of these high-profile cases, and they’re willing to say what it takes to benefit themselves,” Joseph J. Terranova, McCray’s lawyer, said after Monday’s pretrial hearings in Erie County Court.

It was this reference to human cockroaches that so angered the chief of the Erie County District Attorney’s Homicide Bureau that he sought a gag order from Judge Sheila A. DiTullio.

Bargnesi told DiTullio that the name-calling violated rules of professional conduct.

While reporters are free to cover the proceedings “for as much or as little as they desire,” the interviews outside the courtroom are not necessary, Bargnesi said.

“It’s a distraction,” he said.

Human cockroaches. Rats.  Whatever animal comes to mind, it doesn’t alter the nature of the witnesses Bargnesi plans to use.  As Terranova says, you turn on the light and they scramble.  Is that the defense’s fault?

The problem facing the prosecution has nothing to do with the language used to describe its witnesses.  The problem is the witnesses.  The prosecutor will scrub them, comb their hair, put them into thoughtful looking glasses and dress them up in demure neutral colored cardigans to give them that Mr. Rogers’ look.  And they will still be jailhouse snitches, whose claims that the defendant said something inculpatory to them relies solely on their word.

Even Tillman Ward, who can at least take comfort in the fact that he was wounded to prove that he has some, any, legitimate connection to the crime, has a case to work off, and refused to identify McCray until a deal was cut.  One might impute a better motive to Ward, that he would want to convict the person who shot him (why would he lie?), but that ignores street justice.  Ward can always deal with his nemesis later.  Right now, he needs a favor and pointing at McCray is the way to get it. 

One might think that the prosecution in such a high profile case, given the alluring name “City Grill Bloodbath,” would be very cautious, very circumspect.  They must realize that it would attract every jailhouse snitch looking for a quick route to the door.  It seems impossible for them to not see that half the Erie County jail population heard that opportunity bell go off, and would be more than thrilled to answer its call.

McCray, in the meantime, says he’s just not the shooter, no way, no how.

McCray did not speak in court. But in a letter published in the Buffalo Challenger newspaper, McCray said he’s “about to be slaughtered in public for a crime that involves multiple people.”

“Please let the public know that several people were suspects in this case and because they are now witnesses instead of suspects, because they had something to say, I am left holding the bag,” McCray wrote in the letter.

“I am innocent of these charges, yet from the beginning of my arrest I’ve been treated as the guilty party,”

Talk about naive.  Did he expect the presumption of innocence?  What was he thinking? In the meantime, McCray says that his lawyer withheld witness statements from him.

McCray wrote that he was denied witness statements by his lawyer. “When I asked if I could have copies of the witness statement he told me no, because he didn’t want anything to happen to the witnesses,” McCray wrote.

“My heart goes out to the victims and their families, but I am not the shooter.”

Apparently, Terranova would prefer to make sure that none of the witnesses disappeared with extreme prejudice before trial, not exactly a rousing sign of faith in the innocence of his client, but perhaps a wise exercise of caution just in case.  Should anything happen, at least his client can’t be blamed given that he wasn’t provided the witness statements.

This will likely be an ugly trial, with some fertile ground for attacking the credibility of the witnesses against McCray.  Even if the prosecution gets its conviction, it will be permanently tainted with the nature of the witnesses it dredged up from the Erie County Holding Facility.  Call them rats, human cockroaches or snitches, they all come from the same menagerie, and no gag order is going to change that.