Lawyers in the blogosphere are always complaining that having a presence on the internet doesn't bring them more business, just more people asking for free legal advice. Today, while cleaning out a bunch of spam email, I discovered that somebody was asking me for free legal advice.

Since I'm not a lawyer in any way, shape, or form, I figured I'd throw it out to all my readers, some of whom I believe are actual lawyers.

I came across your site / blog and I thought perhaps you could answer a question.  My 23 yr old sister has started making extra money selling her used panties.  Is there anything illegal in Illinois regarding buying or selling used panties?  I worry about her safety, but also the legality.  Perhaps, this would be an interesting topic for you as well.  Thanks

Used panties are not really a very interesting topic for me, thanks for asking. Nevertheless, I'm throwing it out for my readers. Any takers? Anyone want to jump in here? If you're an Illinois laywer, this could be your chance to own the state's used-panty legal advice market!

I've learned from long experience that nobody ever contributes anything if you just ask. But if you write something yourself, everybody will jump in to correct it. So here are my NON-LAWYER bits of advice to young ladies thinking of selling their unmentionables:

• Get advice from an actual lawyer.
• Illinois law enforcement is probably not the problem. Federal law enforcement is.
• Invest in a plastic bag sealing machine to keep in the freshness of that just-sweated scent.
• Just because it's kinky doesn't mean you won't have to do all the paperwork any other business would have to do. If local authorities discover your activities, this is an easy way for them to make trouble for you.
• The limiting production factor is the time it takes to wear the panties long enough to impregnated them with the smell of a woman. To avoid idling the process, be sure to order new panties well before the last pair ships. Don't forget you'll need time for modeling and updating the web site before you can bring in new orders.
• There's probably nothing illegal about selling used clothing or shipping it through the mail. But when you model the clothing and send flirtatious messages to customers, it becomes a sex-related business, and the government gets a little weird about stuff like that.
• Boyshorts are slower movers than you'd think. You'll need them for completeness, but don't let them build up in inventory.
• There's a world of difference between soiled and wet. Shipping bodily fluids through the United States Postal Service is probably a very bad idea. You say "soiled panties," the Postal Inspection Service says "biological hazard in contravention of anti-terrorism laws." I made that up, but the post office really can be dickish about things like that.
• Including a "special" photograph and a hand-written perfumed note is a nice way to say "thank you" to a regular customer. Don't put the note in the bag with the panties though, it ruins the smell.
• Always follow Mark Bennett's million dollar legal advice.

That's all I've got. Anybody else have suggestions? Corrections? Angry and abusive rants?

If you've ever tried to use Google to find a lawyer for a DUI or traffic offense, you've probably stumbled across one of those relentlessly SEO optimized sites that isn't actually a law firm but promises to put you in touch with a lawyer. Basically, they're referral services.

This always seemed annoying but harmless to me. To Spokane, Washington criminal defense attorney Steve Graham, however, it seemed like something worth a bit of investigation:

I googled the phrase "Spokane dui lawyer" and came across the site www.1800duilaws.com, and typed in some very sensitive information about my "case". I conducted the experiment from a coffee shop in north Spokane. About 5 minutes after I entered the details of my "Spokane DUI case", the comment I had entered into the site 1800duilaws.com came back to me in the form of a spam email to my law firm email account.

The contact form on these websites usually includes something along the lines of "you are not forming an attorney-client relationship," which sounds like they're just warning you that no one has promised to be your lawyer yet. What they don't say explicitly, however, is that this means that what you are writing is not a privileged communication. The people who receive them are not acting as your lawyer, and they have no legal obligation to keep your secrets.

I was aware of this, but as Graham explains, it's much worse than I thought:

The lawyers who receive this information aren't even necessarily DUI lawyers...Many of the lawyers could be friends, neighbors, or relatives of the DUI suspect, and the lawyers are under no obligation to keep the information confidential. In Washington state, it is not uncommon for a lawyer to defend DUI cases in the county district courts, but to work as a part-time prosecutor in the local city or municipal courts...It is possible that a DUI suspect could have his or her DUI case information sent directly to the city prosecutor's email inbox.

Geez. I did not see that one coming.

Steve Graham's post has a lot more information, including one site that masquerades as a law firm with offices in thousands of U.S. cities.

Read the whole thing.

Remember Lori Drew? She's the woman who used MySpace to play a very unkind trick on a teenage girl named Megan Meier, who killed herself. Prosecutors in Missouri, where Drew and Meier both lived, didn't prosecute her for this, probably because saying mean things to little girls isn't a criminal act.

That didn't stop grandstanding U.S. Attorney Thomas P. O'Brien from stepping in. Even though he was located 1500 miles away in the Central District of California, he used the fact that MySpace's computers were located in California to charge Drew with computer fraud because she violated MySpace's Terms of Service (TOS) when she used fake information to setup her account.

Fortunately, the judge assigned to the case wasn't having any of that and dismissed the case. If this had gone forward, it had the potential to set a horrifying precedent. Instead of being merely a contract between us and the websites, the TOS would essentially be elevated to federal law. All that stuff you click past would be something that could send you to jail.

Well, according to a terrific post by Gideon at a public defender, something similar is happening to Reddit's Aaron Swartz. It sounds like an ordinary hacking complaint at first, but it's not, because Swartz did not apparently hack past security. He just downloaded more stuff than the TOS allowed. The full story is up at Wired, but read Gideon's post first.

Update: Scott Greenfield agrees the government's position is absurd, but finds the intellectual property issues more troubling.

I'm not sure, but I think I may have just taken a huge step toward solving one of the toughest problems in criminal law: The meaning of reasonable doubt. It is famously difficult to define this standard for members of the jury, which is a problem, because they're supposed to use it to decide if someone is guilty.

Scott Greenfield brought this up again a couple of months ago in connection with a California court ruling:

Yet, even this resort to once-pop culture doesn't overcome the utterly amazing reality that we persist in using a phrase to decide whether a person goes to prison, gets executed, that defies definition. We don't know what it means.  Jurors don't know what it means. Every time a judge or lawyer makes an effort to explain it, he ends up making things worse, obscuring it more.

...

That's the problem with vagaries, that they end up becoming whatever a juror ultimately decides to make of them. We can't articulate a meaningful definition, and they can't conceive of what exactly we expect of them. It's not their fault. Not in the slightest. It's our fault for acquiescing in the perpetual use of this meaningless phrase because we can't seem to figure out a definition that means what we intend it to mean.

The irony is that our inability to arrive at a viable definition reflects our own inability to agree on what this phrase means, or how one could possibly explain it to others.

As you'd imagine, leaving one of the most important parts of a juror's duty completely undefined tends to make the whole rendering-a-verdict process very unpredictable.

(I've often wondered if that was the intent, if the unpredictability of individual cases somehow improves the system as a whole. There are biological mechanisms and scienctific processes that make good use of the effects of randomness. However, I haven't been able to form concrete theory of why randomness would be good for our justice system.)

Jeff Gamso dropped by in the comments and wrote this:

Back when I was in Texas, judges weren't even supposed to define reasonable doubt. That left prosecutors free to tell jurors something like "reasonable doubt is a doubt for which you can give a reason," which is horrible. More than one criminal defense lawyer gave what's always seemed to me to be the clearest definition. "You've got to be real sure."

Gamso knows a hell of a lot more about these things than I do, but the definition that "reasonable doubt is a doubt for which you can give a reason" has great appeal for me because it's an operational definition. That is, it doesn't just define reasonable doubt, it defines a test procedure that jurors can perform to determine reasonable doubt. Operational definitions tend to make it much easier to reproduce a result. Perhaps this definition leads to injustice, but it's the right kind of definition for an important decision making process.

A little later, my Nobody's Business co-blogger Rick Horowitz posted on his blog in attempt to exhume the original meaning:

In any event, I disagree with Scott Greenfield that the problem is the phrase's inherently undefinable quality. The phrase is not indefinable; it's just that most of us have lost touch with the historical roots that could lead to a clear understanding of the phrase.

...

Our problem today, contra Greenfield, is not, as he declares, that the concept "defies definition." While it's true that "we" (I assume he means, at least, "most lawyers") don't know what it means; juries don't know what it means; and judges are too fucking stupid and ignorant of history to explain it, the concept itself no more defies definition than does any other concept from the past that ordinary students make sense of every day.

Rick then goes on to link "beyond a reasonable doubt" with "to a moral certainty" and quotes Barbara J. Shapiro:

Initially, there had been little need to construct a rationale for the truth-finding capacities of juries who reached verdicts based on their own common sense and knowledge of the facts. As the role of witnesses increased in the late medieval and early Roman period, the problem of the credibility of second-hand reports of facts that had become central to theologians, naturalists, and historians became central to legal theorists who borrowed conceptual elements from the new empirical philosophy.

Ah, "the new empirical philosophy." I assume that would be science. This appeals to me. I have some knowledge of the history and current meaning of scientific knowledge.

Throughout [the development of the standard of proof for criminal trials], two ideas to be conveyed to the jury have remained central. The first idea is that there are two realms of human knowledge. In one it is possible to obtain the absolute certainty of mathematical demonstration, as when we say that the square of the hypotenuse of a right triangle is equal to the sum of the squares of the other two sides. In the other, which is the empirical realm of events, absolute certainty of this kind is not possible. The second idea is that, in this realm of events, just because absolute certainty is not possible, we ought not to treat everything as merely a guess or a matter of opinion. [...] The highest level of certainty in this realm in which no absolute certainty is possible is what traditionally has been called moral certainty.

Shapiro goes on to give a jury instruction of sorts:

We can be absolutely certain that two plus two equals four. In the real world of human actions we can never be absolutely certain of anything. When we say that the prosecution must prove the defendant's guilt beyond a reasonable doubt, we do not mean that you, the jury, must be absolutely certain of the defendant's guilt before finding the defendant guilty. Instead, we mean that you should not find the defendant guilty unless you have reached the highest level of certainty of the defendant's guilt that it is possible to have about things that happen in the real world and that you must learn about by evidence presented in the courtroom.

That sounds fascinating, but I wish Rick he had provided some more explanation of what Shapiro means, or perhaps even a few examples of how jurors could apply an instruction like this. (Shapiro's paper itself does not appear to be available online for free, which means it might as well not exist for me.) As it is, however, I'm going to have to guess. And that may be a problem, because as stated, Shapiro's standard seems impossibly high.

That's because in the new empirical philosophy of science, there is no "highest" level of certainty in a statement of truth. What happens is that as more and more supporting evidence piles on, our level of confidence improves, but never quite reaches absolute certainty. So there is no highest level of certainty because more supporting evidence will always make us more certain.

But perhaps I am abusing the argument with too much modern scientific analysis. The statistical distributions that are used to analyze scientific certainty weren't derived until the late 1800's and weren't put to use until the early 20th century, long after the concepts of reasonable doubt and moral certainty entered use in law. Moreover, no one actually expects jurors to think about guilt in mathematical terms. Perhaps instead of interpreting the "highest level of certainty" as a precise mathematical test, I should interpret it on the scale and resolution of normal human reasoning, using the normal human meaning of "highest level of certainty."

That's a bit vague, but there is an interesting implication we can make use of: If we are at the highest level of certainty, then no higher level is possible. The highest level of certainty is that level of certainty which cannot be improved upon, not even by the introduction of more evidence.

This leads us to a nice operational definition that jurors can use: If a juror believes the defendant is guilty, he can then conduct a thought experiment by imagining that the prosecution was allowed to re-open the case and produce additional evidence. If he can conceive of no possible evidence that would further increase his level of certainty of the defendant's guilt, then his current certainty the highest level of certainty, and he can confidently vote Guilty. But if the case fails this test, if the juror can imagine additional evidence that the prosecution could resonably produce but did not, then he has to return a verdict of Not Guilty.

That sounds like it would work, but it still seems to set the bar awfully high. Would more than a tiny fraction of criminals ever be convicted? And what about DNA? The introduction of DNA evidence would make a lot of cases tighter, so does that mean that any case without DNA should automatically lead to a Not Guilty verdict? Again, that would make it awfully hard to convict anyone. I know I tend to root for the defense, but that's an awfully tough standard for the prosecution to meet.

I imagine jurors could be instructed to consider only the kind of imaginary evidence that would be pertinent (e.g. DNA not needed when identity is not in doubt) and reasonable (e.g. no new DNA evidence in a 30-year-old cold case) but that would seem to require juries to have unrealistically comprehensive knowledge of crimes and criminal investigations. Then again, don't we expect that of them now?

It feels like I've gotten somewhere with the concept of reasonable doubt, but I'm not sure if I've gotten anywhere useful.

And there it would have remained, if Scott Greenfield hadn't posted about the acquittal of two cops for raping a woman in their custody.

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.

Suddenly, I saw the light and had my answer:

Proposed model jury instruction on reasonable doubt:

In considering your level of doubt, imagine that the the defendant is a police officer who has served the public for many years. And further imagine that this courtroom is filled with his fellow officers, in full uniform, who are here to support him. If convicted, he could be imprisoned and forced to spend months or even years locked in a cage with the same kind of villainous scum he has been arresting his whole career. Even if he receives no jail time, your finding of even the slightest bit of guilt will likely bring his police career to an ignominous end. You will have declared him a disgrace to the uniform. He will be kicked out of the best job he has ever known and never allowed to return. The brotherhood of police officers will turn their back on him. His friends will leave him, and he will forever lose the respect of his family. To find a police officer guilty is to ruin him.

Now, as it happens, this defendant is not a police officer, but the standard of reasonable doubt is exactly the same. If the evidence is not good enough for you to convict a police officer, it's not good enough to convict this defendant either.

Of course, in a bench trial, this could be shortened to a procedure in which the defense attorney moves that his client be "tried as a cop."

Jamison Koehler takes on the topic of accepting responsibility. I read about it all the time in crime stories and legal blogs: The defendant is convicted, and the severity of his sentence depends on a number of factors, one of which is "accepting responsibility" for his crime. Jamison saw a case where it went like this:

During sentencing, the judge told Bruckheim that he was struggling with the fact that the defendant had not accepted responsibility for his actions.  All I have seen, the judge said, is denial.

...

Bruckheim asked for a few minutes to consult with his client, and the court took a quick break.  When the hearing reconvened, the defendant offered a convincing apology for the behavior that led to the charges.

Does anyone really believe that "accepting responsibility" is going to change a criminal's behavior? Who among us, if caught committing a crime, wouldn't be willing to apologize in as sincere-sounding a manner as we possibly can, if we're told it could knock months or even years off our sentence?

For that matter, do judges actually believe that just by watching and listening they can tell if an apology is sincere, even if it's the first time they've ever heard the defendent speak? If judges really believe they can do that, I urge them to get in touch with me right away, because I have a number of important real estate and precious metals investment opportunities I'd love to talk them about.

I'm pretty sure that lots of criminals can look you squarely in the eye and tell you very sincerely that they didn't do it, right up until the moment they're convicted and offered the chance to accept responsibility, at which point they can look you squarely in the eye and tell you very sincerely that they're sorry they did it.

You know who's going to have trouble accepting responsibility? People who are factually innocent. It's a lot harder to say you did it and you're sorry when you didn't do it at all, when you're not the type of person who habitually lies about everything, and when you're angry that you've been falsely convicted. Maybe you're hoping to win some sort of appeal that will vacate the guilty verdict. Wouldn't confessing to a crime you didn't commit make that a lot harder?

Requiring defendants to "accept responsibility" is a policy that rewards the truly guilty while punishing the truly innocent.

And then there's this problem:

In addition, a defendant who is found guilty after testifying in his own defense is in a double-bind.  Accepting responsibility during sentencing would require him to admit he lied on the stand, thereby subjecting himself to perjury charges and enhanced punishment.

To me, it feels as if the courts are engaging in a policy of collective moral cowardice. It's as if judges don't really believe the system works. The jury has been told to trust the system, and they do, rendering their verdict of guilt based on what they saw and heard during the trial. For the judge, however, that's not good enough. He'd like to tie it up all neat with a confession just to be sure, even if the confession is coerced by a threat of a tougher sentence.

I can understand why police want to make a suspect confess. It's part of the investigative process, part of building a case. But this practice of pressuring a person to confess after conviction reminds me of nothing less than the Moscow show trials under Stalin, when those accused of crimes against the state were coerced into confessing to whatever crimes they had been convicted of in the rigged trials.

American trials really shouldn't borrow features from the Stalinist regime.

There's a lovely case over at Simple Justice today. According to the news story, it went something like this:

A guy was murdered, and a man named Douglas Warney came forward to police saying he knew something about the victim. Police interrogated him, and he apparently confessed, providing eleven details about the murder that only the killer could have known. He was found guilty at trial and sentenced to 25 years in prison.

Nine years later, DNA testing exonerated Warney and implicated another guy who was already in jail for another murder. This other guy confessed and said Warney was not involved. So Warney was released after serving nine years for a crime that he did not commit.

So why did Warney confess? The likely explanation is modern police interrogation methods--particularly the Reid technique--in which the police try to convince their suspect that the evidence against him is overwhelming. If the police don't actually have an overwhelming case, they simply lie about it, making up forensic evidence, witnesses, and accusations by the suspect's friends accomplices. If the technique works, the subject becomes convinced that he is doomed, that he has no chance of avoiding a long jail sentence.

Then the police throw him a lifeline: They suggest different reasons why the crime might not be as bad as it appears--perhaps it was self-defense, perhaps somebody put him up to it--and they make it clear that this is going to be the suspect's last chance to explain what really happened. If he had a good reason for doing what he did, now's the time to tell it.

What the suspect doesn't realize is that any explanation he offers for his crime is sure to include a confession to the crime. And once the police have his statement, they'll just pocket the confession and ignore the rest of the explanation. E.g. "I killed him in self-defense" is an admission to a killing. The prosecutor can indict on that and leave the self-defense angle for the other side to worry about. Besides, since the suspect was unprepared and unfamiliar with the law, his explanation is probably legally useless.

The problem with this technique is that the suspect faces the exact same choice regardless of whether he did the crime or not. If he's innocent, and the police are lying to him about how good their case is, at the very least, he's going to think he's been framed. No matter how wrong it feels to confess to a crime he didn't commit, once he thinks he's doomed to be convicted, he's likely to leap at any way out--any way to mitigate the damage--and inadvertently confess to a crime he had nothing to do with.

This is even more likely when the suspect has memory problems and can't be entirely sure he didn't do the crime. After all, the police say they have his prints on the gun, they have two eyewitnesses, and his best friend says he did it. Maybe he did do it. These memory problems could be caused by abuse of drugs or alcohol or--as was the case with Douglas Warney--he could have an IQ of 68 and be suffering from dementia. Really.

I have to admit, it seems plausible that police detectives of good will could, in their zeal to catch a murderer, accidentally pressure an innocent mentally incapacited man like Warney into making a false confession. But...what about those eleven details which only the murderer could know? If Warney wasn't the murderer and had nothing to do with it, who told him about those secret details?

It has to be the cops.

I could even see how it might have happened unintentionally:

Q: How many times did you stab him?

A: Ten times.

Q: Are you sure it wasn't a few more than that?

A: Fifteen times?

Q: Good. Moving on...

Detectives get tired. Detectives make mistakes. I could see the detectives doing something like that entirely by accident. Once. But eleven times? That's just cheating.

This makes me furious. I've been on a jury. And if I had heard testimony that a guy confessed to a murder and knew eleven separate details about the crime that only the murderer could have known, I would have considered that very strong evidence of guilt. I probably would have voted to convict. And thus the detectives' underhanded lies would have made an accomplice to an atrocity.

You know, I can understand why cops lie about Fourth Amendment issues: They're catching bad guys. Sure, maybe they didn't really see the gun sticking out from under the passenger seat, or maybe they didn't really smell drugs wrapped in garbage bags in the trunk, but when they did their search, there was the gun, and there were the drugs. The defendent really did have them, and the cops aren't about to let him get away on a few legal technicalities. I don't condone these lies, but I can understand how a cop could justify it to himself.

What boggles my mind, however, is the cops who lie in a way that could frame an innocent man. Don't they worry about what will happen to him? Don't they worry that they're letting the real killer get away with it?

Do they really believe they're still the good guys?

Back in July of 2009, I declared myself the Greatest Criminal Defense Blogger in Chicago. This was not a boast, it was a lament. I am not a lawyer, and most of my posts have nothing to do with criminal defense. Yet I seemed to be blogging more about criminal defense than any actual Chicago lawyer.

Rob Deters was gone, Steven Molo's blog was fake, and James Dimeas mostly just rewrites news stories, as does Chris at Total Criminal Defense.  The Cook County Public Defenders Blog is really just an organizational newsletter. Michael J. Petro summarizes 7th Circuit crimlaw decisions, which is probably a great service, but he's not really a blogger. Pete Guither at Drug WarRant covered some Chicago crime stories, but he wasn't a lawyer any more than I was, and whoever Kent Dean is, his blog-like things have all vanished.

My big hope was Denise Nalley, whose Chicago Criminal Law Journal didn't have many posts, but they all read like real blog writing, not marketing. Alas, she hasn't posted anything since August of 2009, although she was nice enough to answer a question for me.

I had a lot going on that summer, so after a couple of posts I pretty much stopped looking for Chicago crimlaw bloggers. That's too bad, because if I'd been looking, I might have noticed a new blog called Chicago Criminal Defense by Chicago Lawyer Marcus L. Schantz.

Folks, this is the real deal. An actual blog, by an actual criminal defense lawyer in Chicago, and he's actually still doing it. He wrote 107 posts last year, most of them pretty long.

(By the way, certain people like to make fun of young lawyers who get excited about things like iPads and virtual offices. But I'll bet most of the complainers probably work in small court systems like Miami and Manhattan. Consider this:

Not including traffic court, there are 7 criminal courthouses in the city of Chicago (5 branch courts, Domestic court on Harrison, and 26th & California). Add the suburbs and that makes 12 courthouses for the entire county.

...

I spend a lot of time in my car. There are mornings I have cases in Bridgeview and Skokie. Take all of this running around, add all of the secretarial work I do in addition to running my practice entirely by myself and it's easy to see how I move all day. On Saturdays I usually meet new clients and I am in the county jail almost every Sunday visiting clients that are in custody.

You're damned right he has an iPhone! What's really puzzling is that he bothers to keep an office.)

Schantz's first few posts were just some introductory material about how the process works--indictments, arraignments, grand juries, the difference between the Miranda right to an attorney and the 6th Amendment right to an attorney... It's the sort of thing he might have been told to blog about to make sure he hit all the right buzzwords, but his writing about it is not just rote regurgitation. He's actually trying to teach his subject to his readers.

Then he starts telling stories. He's the kind of lawyer who's willing to tell stories about his cases, although he seems pretty careful not to discuss things that wouldn't already be known to the other side, and he doesn't name names. Most of it is probably pretty routine, the day-to-day work of criminal defense (kind of like Ken Lammers used to do before he switched sides), but to a fan of courtroom stories like me, it was fun to read. He's obviously a bit new to the profession, and still finds it exciting.

Schantz hasn't posted a lot of entries on his blog, but most of his posts are very long, and after reading the first dozen or so, I realized I was not going to be able to read them all right now, so I skipped to the end to read the last few.

You know how every American President seems to visibly age in office? Even if it's only a four-year term? Skipping to the end of Schantz's blog was the same way. He's still enthusiastic about his career, but two years down the road and two major losses in felony trials, and the blog is now being written by an older man, or at least one who's taken a bit of a beating.

Marcus Schantz, if you come across this, welcome to the Chicago blogosphere. Sorry I missed your arrival. I think perhaps Chicago has at long last produced a real criminal defense blogger. You have drawn the sword from the stone.

I wish you well.

(Hat tip: I wouldn't known about Schantz if Jamison Koehler hadn't mentioned him in his terrific Blawg Review #296.)

It's a good question, really...

Over at Popehat, Patrick has this to say about Joel Rosenberg's defense fund:

Note that this is not tax-deductible. The government does not encourage its subjects to stand up for the blameless.

Well, why the hell not?

As far as I can tell, the tax rule for legal expenses is that the expenses are tax deductible only if they are business or income related. Criminal defense is considered neither, so criminal defense fees are not tax deductible. Which is kind of odd when you consider that it's pretty hard to earn a living if the government throws your ass in jail.

Also, the need for criminal defense arises from the government's own legal actions. It seems cruel to force the defendent to pay taxes to the government for the cost of defending himself from that same government.

Of course, if you do try to deduct your criminal defense fees, and the IRS comes after you, your tax defense expenses are tax deductible.

Scott Greenfield is more familiar than I with the history of Joel Rosenberg's recent conflicts with the Minneapolis police department, leading up to Joel's arrest, and in his latest post Scott offers this important bit of background:

For a fellow who sincerely believes in principles, there comes a point, a threshold if you will, where he decides to take a stand.  Some of us have such a threshold. Others have none, though they may talk as if they did and lie to themselves that there's a point where they would take a stand.  These people never, ever reach that point.  Others, like Joel, decide where that point is for themselves.  As he likes to say, your mileage may differ. The point is personal.

Joel hit his point when a mother/daughter altercation broke out.  Not a particularly big deal, except that an overly helpful passerby observed SWMBO, also known as Joel's wife Felicia, trying to get their daughter, who can be a bit rebellious toward parental authority, to follow the rules of their home.  The backstory there is neither particularly relevant or interesting enough to provide details, but Joel learned, as his wife was arrested on the word of an ersatz good samaritan (which was subsequently dismissed, then subsequently reinstated after Joel's run-in with Sgt. Palmer that gives rise to his arrest), the ordinary injustice of cops' lying to make a case wasn't something he could stomach.

Even if we assume for the sake of argument that the initial arrest of Joel's wife was reasonable--in the sense that an officer honestly thought something illegal was going on--the chronology is suspicious:

• Felicia arrested by Minneapolis police.
• Charges dropped against Felicia.
• Joel requests public records about the matter.
• Joel arrives at police station to pick up public records and has a run-in with Sergeant William Palmer.
• Joel files a complaint against Palmer and releases public statements.
• Charges reinstated against Felicia.
• Joel arrested.

No word yet on whether Sweden will be filing rape charges...

I need to beg my legal readers for some information. I've been arguing with some guy in another blog's comments that if the airport passenger checkpoints were operated by private security firms instead of a government agency, we'd have a better chance of suing the screeners when they do something wrong.

My argument is based on the fact that the TSA's employees benefit from the government's sovereign immunity. As I understand it, the Federal Tort Claims Act allows us to sue the government or its employees, but with some very strict limitations that don't apply to private parties. Basically, the government and its employees are immune from a lot of lawsuits.

My opponent refuses to believe that government employees have "magic blanket immunity." I think he may be a moron (or more likely, a troll) but having read up a little on the TSA's Screening Partnership Program, I'm starting to think he might have a point of sorts. It seems there's something called the "government contractor defense" which apparently extends some immunities to those doing government work on contract instead of as employees. Also, there's the SAFETY Act which affects libility for qualified anti-terrorism technology.

This is all way, way, way, way over my head. Does anybody out there (a) know how this stuff really works and (b) feel like answering a legal question for free?

It's still October, but it's not too early to get into a Thanksgiving atmosphere. Jimmy John's is suing Halsted Street Deli (a local sandwich shop here in Chicago) over the names of two sandwiches. Jimmy John's uses the sandwich names "Turkey Tom" and "Hunter's Club" while Halsted Street Deli uses "Tom Turkey" and "Hunt Club".

Deep inside the cynical exterior of a Miami criminal defense lawyer...beats the heart of a true believer. Brian Tannebaum wins his case, and shows us that sometimes not even the federal government can send a man to prison for doing nothing wrong.

This was not about an acquittal, a framed verdict form on an office wall, or an "attaboy" from my colleagues. This was about how the government can create criminality from stupidity, from naivety, from a desire to send a message to society that is mired in an environment of blame.

I think that if I was on that jury, I would have second guessed myself a bit too: Am I missing something, or could the feds really have gone to all this trouble when they don't have a case?

There's been a lot of discussion in the criminal defense bloggosphere about the role of the criminal defense lawyer. Basically, prosecutors are supposedly charged with seeking justice. The question naturally arises then, are criminal defense lawyers also supposed to seek justice? And if so, what is their duty to their client?

As near as I can tell, it started with a comment left by John Kindley at Defending People, which he expanded into a post on his blog (followed by several more) which quotes Vincent Bugliosi, which lead to a rebuttle by Mark Bennett and comments by Scott Greenfield, Jeff Gamso, Norm Pattis, Gideon, and probably a whole bunch of other bloggers (feel free to drop a link in the comments if I missed you).

I figure I might as well take a shot at it and explain what I think criminal defense lawyers are supposed to be doing. Naturally, I see a science angle. And it has something to do with toilets. I'm going to digress a bit before I come to my point.

You may have heard the science factoid that toilets in the southern hemisphere flush clockwise and toilets in the northern hemisphere flush counter-clockwise. The supposed reason for this is the Coriolis effect, which is caused by the Earth's rotation.

Basically, everything on the surface of the Earth revolves eastward in a circle around the planet's axis. However, objects closer to the equator have to follow a longer path than objects that are closer to the poles. Since everything has the same amount of time to complete a rotation, the objects taking the longer path -- those closer to the equator -- must be moving faster.

Now imagine an object that starts near the equator and begins moving northward. At the equator, both the object and the land beneath it are moving eastward with the Earth's rotation. As it moves north, however, it passes over land that is closer to the pole and therefore moving eastward slower than at the object's starting point. The object will still have it's original eastward velocity, so it will tend to get ahead of the land below and begin to drift eastward. Similarly, an object moving southward will be starting with a slower speed and therefore fall behind, drifting to the west.

In the southern hemisphere, the exact same thing happens except that the directions are reversed because the rotational speed at the surface declines as you get closer to the south pole.

When you flush a toilet, all the water in the bowl flows toward the center. The water in the northern half of the bowl moves south, and therefore Coriolis forces push it to the west. The water in the southern half of the bowl moves north and gets a shove to the east. Thus, the story goes, the water is pushed in a counter-clockwise direction, and that's the way toilets drain in the northern hemisphere. And vice versa in the southern hemisphere.

At least that's the theory. But does it really happen? Do toilets really flush in different directions in different hemispheres?

No, as you can easily determine for your self by watching a bunch of different toilets. The reason is simple: Toilets are too small.

The Coriolis effect works quite well with very large things because the speed difference is much greater over large distances.  The low pressure zone in the center of a hurricane pulls air in from all directions for hundreds of miles, and the northern and southern edges are far enough apart that the Coriolis effect induces a gigantic spinning cyclone with air speeds that can easily reach over a hundred miles an hour. Even better, hurricanes spin clockwise in the south, and counter-clockwise in the north, exactly as we'd expect from the Coriolis effect.

On the other hand, the surface of the water in a toilet is less than a foot across. When you do the math, it turns out that as the toilet follows the Earth's daily revolution, the maximum possible speed difference between opposite edges is only about three inches per hour. That's so small that it's overcome by water movement caused by vibration of the floor or air currents stirred up by somebody moving around in the same room as the toilet. Even worse, the currents set up in the toilet when it fills (or when certain other materials are added to the bowl water, if you know what I mean) can persist for hours and have enough inertia to resist Coriolis forces. Finally, imperfections in the shape of the bowl can cause the water to flow in a preferred direction that has nothing to do with Coriolis forces. So, in theory, the Coriolis effect is there, but it's too small to detect in a real-world toilet.

Scientists have tested this under laboratory conditions, however, and it really does work: When the run the test in the southern hemisphere, the water picked up a gentle clockwise swirl every time. Repeating the experiment in the northern hemisphere, the water swirled counter-clockwise.

The experimental setup is interesting (meaning I'm finally getting to the point of this post). The scientists wanted to eliminate all sources of water motion that might hide the Coriolis effect. They began by setting up their apparatus on a base that isolated it from vibration and in a room with no vents or heat sources to cause air motion. Instead of an off-the-shelf toilet bowl, they carefully constructed a funnel about six feet across and as near to perfectly round and smooth as possible.

The scientists knew that after filling the bowl with water, they'd have let it sit for several hours to allow the residual currents to die down. But just to make sure the residual currents didn't contaminate the experiment, they did one more thing: They filled the bowl in the opposite of the expected direction of spin, so that the water was initially swirling the wrong way. If any of that swirl remained when the drain was opened, it would not cause a false positive result.

A criminal trial is a bit like that experiment. It's a highly artificial environment created to get an answer to an important question. It's isolated from the real world, and an attempt is made to remove distracting influences which might lead to an erroneous result. As for criminal defense lawyers, they're that swirl in the wrong direction.

You see, by starting with the water swirling in the wrong direction, the scientists added an influence that would have produced the the exact opposite result from the hypothesis they were testing. This opposing swirl would have to be overcome by the forces hypothesized to be at work in order to get the expected result.

That's the role that criminal defense attorneys play in our justice system: They oppose the government's theory that their client is guilty. This opposition is necessary so that if the government achieves the result it's hoping for -- a guilty verdict -- we can be confident that it was arrived at for the right reasons.

If my explanation of the role of criminal defense attorneys doesn't seem very original, that's because it's not. It's basically a variation on "putting the government's case to the test" or "ensuring procedural due process." I'm sorry if you were expecting something more enlightening or profound. I've no reason to seek a novel explanation when the existing explanations are so good. But I do hope you found the science of toilets and hurricanes a bit entertaining.

I'm not saying that this is the only role a defense attorney should play in the system. There are other ways to serve justice in the larger sense, and there are other ways to serve their clients, and doing either of those things need not compromise their role as the opposition.

Nor am I saying that this is what motivates criminal defense lawyers on a personal level. They may serve out of compassion for the oppressed, abhorrence of the urge to punish, thirst for social justice, or desire to be a badass. But whatever their reason and whatever else they do to serve clients or justice, they also serve the purpose of justice simply by standing in defiance.

Do note, however, that the need to swirl the water in the wrong direction has nothing to do with whether or not the Coriolis effect is an accurate theory. Similarly, the criminal defense lawyer's role does not change with the defendant's guilt or lack thereof.

(Note for science geeks: Wikipedia has a more accurate and rigorous treatment of the Coriolis effect, including a description of the conditions under which Coriolis forces are significant in a physical system. My description of the experiment is from my memory of a book or article I read a long time ago. If you're like me, you're probably wondering how the water would have drained from the funnel if they did the experiment at the equator. Fortunately for both of us, the scientists wondered the same thing. As expected, the water drained quietly away with no significant rotation in either direction.)

Economists generally believe that extremism is probably a mistake. That's because every choice involves a trade off. You'll start with the easiest trades first, but as you push to greater extremes, you'll have to trade off more and more things of value. For example, if you set out to own the fastest production car in the world, it will probably turn out to be uncomfortable, loud, hot, and astonishingly expensive.

You may be that rare person for whom those trades offs are worth the trouble to get the fastest car, but most people would be happier with something a little slower that offers more in turms of comfort and amenities.

One common form of extremism is fear of failure. If no woman has ever turned you down when you asked her out on a date, you've probably been too careful in choosing who to ask out. If you had been a little less careful, you probably would have been turned down a few times, but you would have asked out a lot more women and gone out on a lot more dates.

Similarly, if you've never missed an airplane, you've probably spent too much time waiting around in airports, and a heart surgeon who's never lost a patient has probably turned down patients he could have saved.

Lately, Mark Bennett and Norm Pattis have both been questioning Gerry Spence's claim to have never lost a criminal case. I don't know if that's true or how he defines winning or how many cases he's taken, but I'm pretty sure of one thing: If Gerry Spence has been turning down every case he thought he might lose, then some of the cases he passed up were cases he would have won.

The defense has rested in the corruption trial of Illinois governor Rod Blagojevich without letting the jury hear his testimony. Other people are discussing what it's fair to assume about Blagojevich's guilt based on his not testifying [be sure to read Scott Greenfield's scathing response in the comments below], but I'm wondering how we're hearing about so many details about the inner workings of the defense team.

Last week, criminal defense lawyer Stuart Goldberg was quoted in People discussing his meeting with actress Lindsay Lohan to discuss the possibility of representing her:

"My impression of Lindsay is that she's a fragile lost child - a sleeping beauty with her head in the sand. I found her not fully forewarned of the consequence of her actions," Stuart V. Goldberg, who was contacted by Lohan after her attorney resigned, tells PEOPLE.

"I'm concerned that she's not disciplined or tethered enough to the reality of adult consequences," he says. "She doesn't seem to have the awareness of what's going to befall her."

New York personal injury lawyer Eric Turkewitz called him out about client confidentiality:

Why the hell is this Stuart Goldberg, apparently a Chicago criminal defense lawyer, talking about what he heard or saw in the confidence of his practice? And why would any future client ever trust him to keep a secret?

I had all that in mind as I read a report in the Chicago Sun-Times about the decision that Blagojevich should not testify:

But sources told the Sun-Times that despite the public show of discord, all the members of Blagojevich's legal team -- and the former governor himself -- actually agree that Blagojevich should not testify.

The decision, which appeared to stun prosecutors, one of whom stared toward the former governor as he learned of the defense's intent, is said to have come late Monday after a night of wrangling.

During preparations with his own lawyers and others, Blagojevich showed signs that he would have trouble answering questions clearly and succinctly and might not be able to withstand what is expected to be a withering cross examination, sources said. The defense also took into account the possibility that the government, which put on a quick case after only six weeks, had rebuttal witnesses ready, potentially including convicted businessman Tony Rezko.

How are Sun-Times reporters are getting information about legal decisions from inside the Blagojevich camp? Lohan's lawyer appears to be a publicity-hungry fool who's trying to attract attention to himself by talking about his celebrity almost-client. But Blagojevich is being defended by Sam Adams, who already has a big reputation for not being particularly foolish.

The Chicago Tribune is also reporting a similar story, so unless there's some way in which this leak is part of the defense strategy, it sounds like somebody on the defense side is leaking privileged information to the press.

If I had to guess who's talking too much, the obvious culprit is Rod Blagojevich.

There's been round-the-blawgosphere turmoil about Lee v. Lampert, in which the 9th Circuit basically said that the AEDPA's time limits for filing a habeas petition still apply even though pretty much everyone agrees that the defendant is actually innocent. That is, Lee is innocent, but he just didn't submit the paperwork on time. There's plenty of coverage by Gideon, C&F, Gamso, and Greenfield.

I think that unless the U.S. Supreme court overturns this ruling or the Governor steps in and moots the case with a pardon, this case is probably headed for some crazy legal shenanigans, as the defense tries to find a judge who will go along with some sort of pretextual constitutional issue that will allow the facts to be reconsidered so that justice can be done.

This tends to support my observation that the machinery of justice is missing an important part:

This is an ridiculous situation. Our court system apparently has no simple, honest method of dealing with the possibility that a criminal court followed all the correct procedures and -- perhaps due to facts unavailable at the time -- still reached an erroneous conclusion.

The closest we come to such a method is probably a habeas petition, which is going to be a problem...

I haven't been writing as much as I'd like to lately, but fortunately, there's plenty of other good stuff to read. Mirriam Seddiq has a terrific article about what she's learned practicing criminal law in several different jurisdictions. Her description of Baltimore (and the Baltimore police) is priceless.

Chances are, you don't enjoy movies as much as you think you will. That's because movie tickets present us consumers with a tricky problem of incomplete knowledge. We want to buy tickets to movies we'll enjoy, but the only sure way to know how much we'll enjoy a movie is to watch it, and we can't do that unless we've already bought a ticket.

So we try to make an educated guess. We watch trailers, read reviews, and talk to friends who've already seen it, hoping to get enough information to make a good estimate of how much we'd enjoy it if we bought a ticket. Then we compare our estimate of our enjoyment to the cost of the movie -- including the price of the ticket, the cost of snacks, and the value of our time -- and decide whether or not to give the movie a chance.

We'll never be able to estimate exactly how much we'll enjoy a movie we haven't seen -- we just don't have enough information -- so there will always be an error factor. That is, our estimate of our enjoyment is conceptually equal to our actual enjoyment plus a random error factor (which can be positive or negative).

If the error factor is random, you'd think that would mean we would find ourselves enjoying movies more than we expected or less than we expected with equal probability. But it turns out that that only happens if we ignore our estimates and just go see every movie we can. We get a different result if we only go see movies for which we estimate a high enjoyment value, because the movies we overestimate will tend to have a higher estimated enjoyment value than the movies we underestimate.

For example, if you estimate your enjoyment of 100 movies and split them into two groups by rank -- the highest 50 and the lowest 50 -- the higher group is likely to have more overestimations, and the lower group is likely to have more underestimations. So if you go and see all the movies in the top half, you will see more movies which you overestimated. In other words, you will see movies which you enjoy less than your estimate predicted you would. As I said at the top of this post, you don't enjoy movies as much as you think you will.

This is a variation on a phenomenon called the winner's curse. The name comes from the observation that in an auction, the person who bids highest is likely to be the person who overestimates the value of the auctioned item the most.

I was reminded of all this a few days ago by a post I first saw at Gideon's a public defender blog about a new American Psychological Association paper which shows that lawyers overestimate their chances at trial which has made the rounds of the legal blogosphere. Here's a bit from the abstract of the paper:

The study investigated the realism in predictions by a sample of attorneys (n=481) across the United States who specified a minimum goal to achieve in a case set for trial. They estimated their chances of meeting this goal by providing a confidence estimate. After the cases were resolved, case outcomes were compared with the predictions. Overall, lawyers were overconfident in their predictions

This makes sense as another example of the winner's curse. Lawyers and their clients are more likely to take a case to trial when their estimate of the outcome is high, but because overestimations result in higher estimates, those are precisely the cases which they are most likely to be overestimating. Whereas the cases they underestimate are more likely to look like losers, so they're more likely to settle before trial.

In other words, the cases lawyers take to trial are those in which they have the most confidence, but those are also likely to be the cases in which they are most overconfident.

Unfortunately for my nice little story, the winner's curse is also something of a paradox. The problem is that lawyers presumably know about the winner's curse -- maybe not by that name, but the concept isn't exactly a dark secret. More importantly, the lawyers will have experienced the winner's curse. They will see the outcomes of the cases the take to trial, and they should be able to use that knowledge to adjust their estimates to eliminate the curse. And yet this recent study shows that doesn't happen.

It's not just lawyers. Economists have studied the winner's curse in artificial simulations and in the real world for years, and there is some evidence that people consistently fail to compensate for it. It's a bit of a mystery. The most obvious non-economic explanation is that people are a bit stupid, but that's unsatisfying because it accomplishes too much: Once you assume that people are stupid, you can use that to explain any behavior you don't understand.

The APA paper doesn't mention the winner's curse, but a section called Metacognitive Realism does discuss several possible causes for overconfidence: It could be a side effect of zealous representation, a result of the need to display confidence to attract clients, distortion due to the perception of control, or simple wishful thinking.

I don't know enough about psychology to begin to guess whether any of those theories are correct, but I know enough about economics to notice something that's missing. Lawyers are supposed to represent the interests of the client, but they wouldn't be human if they didn't also consider their own interests. Depending on the fee arrangements, many lawyers get paid more when a case goes to trial, which gives them an incentive to go to trial when it wouldn't be best for the client.

So if lawyers are following the path of higher earnings, we'd expect the rate of overestimation to be higher for lawyers who make more by going to trial.

The APA study doesn't report fee arrangements directly, but we can try to make a few guesses from the data in the paper's Table 2, which I used to prepare this data:

Success rate	Criminal prosecution	Criminal defense	Civil plaintiff	Civil defense
Estimated	72.8	50.1	65.1	65.1
Actual	67.1	43.7	51.6	62.6
% Overestimated	8	15	26	4

Some criminal defense attorneys have a fee structure that brings in more money when they take a case to trial, but as far as I know all prosecutors work for a fixed salary, so the overestimation rate should be higher for criminal defense attorneys than for prosecutors, and indeed the data seems to confirm this, with defense attorneys overestimating their chances of achieving their goals by 15% to the prosecutors' 8%.

For the civil bar, I'd expect to see a similar result, since plaintiffs' attorneys often work on a contingency basis (which aligns their interests with their clients) but civil defense attorneys usually charge by the hour and therefore make more by going to trial. However, the data goes the other way, with plaintiff's lawyers wildly overestimating their chances at 26%, while civil defense lawyers only miss by 4%.

Whatever's going on, I guess it's more complicated than my simple economic theory. Or maybe I'm misunderstand the data. Or else I'm misunderstanding how lawyers earn money from legal work. In any case, it's getting late and I'm going to bed.

Heck, maybe plaintiff's lawyers and criminal defense lawyers are all just romantic dreamers...

Jeff Gamso has a fascinating post about the probabilities behind a DNA match.

If you do felony criminal law (from either side of the aisle) and I tell you the number is 6.17 quadrillion, you probably assume that I'm talking about DNA.

The number will reflect just how unlikely it is that the DNA in the whatever left at the scene could have come from anyone other than the defendant. There are four things you need to know about that number.

If you want to know what those four things are, read Jeff's post. I want to talk about something else. It's that number, 6.17 quadrillion. There's an important proviso that's missing, although Jeff touches on it at the end of his post:

Next time you're on a bus or a plane or a train or in a restaurant or movie theater or anywhere where there are a bunch of people, look around.

You never know when your not-twin, the one whose DNA profile is the same as yours, might be in the crowd. Despite the odds of 1 in 6.17 quadrillion. Hell, it might be one of the jurors.

If you pick a person at random off the street -- or one of the random readers of this blog -- the odds of someone else having that person's DNA are not 1 in 6.17 quadrillion. They're only about 1 in 500. That's because about 1 person in 500 was born as one of a pair of identical twins.

Identical twins occur when a single zygote in the mother's womb splits into two separate zygotes which develop into two separate individuals. Since all the cells in the zygotes trace back to a single zygote and therefore a single fertilized egg, they have essentially the same DNA.

All of this makes me wonder why this problem doesn't come up more often in news stories about trials. If a criminal defendant has an identical twin, claiming he committed the crime would explain the DNA evidence. As a bonus, it would also explain things like photo arrays, line-ups, and lots of other eyewitness testimony. I guess a defendant might be reluctant to accuse his closest brother of a crime, but I would think that a pair of identical twins creates enough reasonable doubt to protect them both.

I've heard that claiming someone else commited the crime is sometimes called the SODDI defense, which stands for Some Other Dude Did It. I'd think we'd occasionally hear about the METDI defense: My Evil Twin Did It.

It looks like filling the next Supreme Court vacancy is yet another area in which I disagree with the Obama administration. CBS News's Jan Crawford says Obama wants "a sparkling intellectual who could go toe to toe with Roberts and Antonin Scalia," but I'd much rather have Scott Greenfield.

Well, with Justice Stevens retiring from the Supreme Court, it's time to start another round of speculation and wishful thinking about who will get the job this time.

I have no idea who the mainstream pundits are pushing for, but I'm always partial to Wise County Deputy Commonwealth Attorney Ken Lammers. He has more criminal law experience than the entire current court combined, and although he's a prosecutor (and therefore won't frighten the Republicans) he's done some defense work in the past, and he seems less motivated by the desire to mete out punishment than certain other prosecutors.

On the other hand, Brian Tannebaum seems to be trying to generate a one-man blawgospheric groundswell for New York's Scott Greenfield, proprietor of the venerated Simple Justice blog. Brian is obviously inhaling too much of whatever they're smoking down there in Florida, but the thought of a no-holds-barred criminal defense lawyer like Scott on the Supreme Court is pretty amusing.

(And, let's face it, the Supreme Court could sure as hell use a criminal defense lawyer in its ranks, someone who has had the experience of trying to save a client from the awful power of government vengeance. Not one of them has done that.)

Now it's late at night, and I keep thinking about something that almost happened last year. I can't get it out of my head, and it fills me with regret for what might have been...

Last year, some nut with ties to the Obama administration dangled the possibility of a federal judgeship in front of Norm Pattis. As things turned out, it didn't happen. But what if it had...?

And what if the crazy impulse that lead them to consider Norm in the first place somehow struck again and lead them to nominate him to the Supreme Court? When I imagine a bomb-throwing madman like Norm on the Highest Court In The Land...damn, that would be glorious.

As a non-lawyer, and as a generally law-abiding citizen, my main interaction with the criminal justice system is going to be as a juror. But over at a public defender, Gideon is saying that jurors don't really understand the presumption of innocence:

I have come to believe that that is hogwash. Jurors are smart enough to know what to say. They've also been reading the same newspapers and watching the same news. There's still this cultural divide between "them" the defendants, and "us" the jurors. Someone's been arrested and is going to trial? Well, there must be something to it or why else would the State waste its time?

The presumption goes to the State. If the State, in its benevolence and infinite wisdom has decided to pursue this matter, then, well...

I don't feel that way at all. And what's this "divide"? Maybe if the defendant was some kind of obvious species of scumbag -- a marked gang member, giving us all the stink-eye, or a raging psychopath -- but when I was a juror, I thought I had a lot in common with the defendant. After all, I didn't really want to be there either, but the prosecutor insisted we take a part in his show.

If you had a client in whose case you believed the State's evidence could not sustain the burden, would you dare rest without putting on any evidence? Do you have that much faith in jurors?

I have this belief - it may be a naive belief - that most trials are won not because the jury upheld the presumption of innocence, but because the defense overcame the presumption of guilt.

It is human nature to want to hear both sides of a story and then decide which one is more believable. To force the jurors to perform their duty in a manner that is contrary to this human need is merely wishful thinking, no matter how forceful the instruction from the judge.

That last part has the ring of truth. The human decision-making process does not perform well under highly artificial conditions. That's why we get fooled by things like math riddles and gambling. So it makes sense that we wouldn't do well in a situation where we can't hear both sides like we would in a normal conflict.

Still, even without legal training, I don't think the presumption of innocence is that difficult to follow. I'm pretty sure I could do it. I'm pretty sure I have done it.

Meanwhile, Scott Greenfield quotes jury consultant Harry Plotkin, who thinks jurors have the attention-span of weasels on meth:

What matters most, more than ever these days, is that you keep your jurors engaged in the trial and focused on the things you want them focused on. Jurors try their best, but they won't pay attention to everything you present to them in a trial, and they'll remember even less by the end of the trial. So your jurors' attention spans are limited, their memories are limited, and--perhaps most importantly--their patience is limited, and that's the main focus of this month's tip.

They're cynical too:

Aside from how quickly they demand information, Generation X and Y jurors are generally more cynical than older jurors. They grew up in a world with lawsuits, corporate scandals, and written contracts for every agreement instead of handshakes and trust. They're not necessarily more prone to favoring plaintiffs or defendants, but they tend to be more critical of plaintiffs, less trusting of defendants, and tend to have higher expectations of what the litigants "should have done" better.

Scott adds:

While this cynicism cuts both ways, the defendant will be the one left without any showing to satisfy their demand for evidence.  If they come into court cynical, then there is little expectation that they will honor the presumption of innocence or the burden of proof.  They will sit back and demand that both sides satisfy their curiosity, and do it on their terms.

I am puzzled by this. I could be a juror -- I have been a juror -- and that's not how I did it. I went in understanding that I might never know the truth, but I knew I had a job to do, and I think I did it. So why are Scott and Gideon and so many other defense lawyers saying these things?

I can think of three explanations.

First of all, maybe Scott and Gideon and all the other criminal law bloggers are wrong. Maybe jurors are a lot smarter than they think. Maybe they are generalizing from a few bad experiences, or maybe they are disappointed in their own performance as lawyers and reaching for explanations other than their own incompetence or the maniftest guilt of their clients. In other words, maybe all these lawyers who I rely on, who I trust and admire, are morons who don't really understand juries.

The second explanation is more positive: Maybe I'm different from other people. Maybe -- unlike most people -- I really get our system of justice. Maybe where other people would walk into a jury room filled with prejudices against the defendent, I would enter with a true presumption of innocence. Maybe I alone would require clear proof of every element of the crime -- untainted in whole or in part by reasonable doubt -- before I would convict. In other words, maybe I'm special.

The third explanation is the worst: Maybe I'm exactly like those other people. Maybe, I make the same mistakes they do, and maybe I fool myself into thinking I'm doing it right, just like they do. Maybe I'm failing to do my part, just like everyone else.

It's that second one, though. Right?

[Update: Just to be clear, because Scott sounds a little pissed off in the comments, I don't really think the first explanation is likely. Nor the second one, for that matter.]

I've been blogging about legal issues for several years now, and I've learned a lot about lawyers and law firms and legal marketing, and I've earned the trust and respect of the legal blogging community. Now it's time to leverage that for my benefit.

To that end, I've joined as a silent partner on a new extreme project.

Update: For those of you reading this out of context: It's an April Fool's Day joke.

I was reading Mark Bennett's account of the long and winding road that lead to the U.S. Supreme Court granting a stay of execution for Hank Skinner, a Texas man who's claiming that some untested DNA evidence might prove him innocent. It's a fascinating procedural tale, if you're into that sort of thing, which I'm not.

But one thing Bennett wrote really sticks out:

If the State is ordered to provide the evidence for testing and that ruling is upheld, the DNA gets tested. If it is exculpatory, it's not entirely clear what Skinner's remedy is. As I previously noted, factual innocence is not itself grounds for reversal of a death sentence. It has to be coupled with a constitutional violation like ineffective assistance of counsel (but here Skinner's trial counsel has blocked an IAC claim by saying that the decision not to seek testing of the DNA was a strategic one) or prosecutorial misconduct.

I've noticed this sort of thing before. Some new test becomes available, or the victim recants, or someone else makes a credible confession to the crime, and suddenly the lawyers are hard at work. But it's a funny kind of work...

You'd think the lawyers would just go into court and file some sort of  "motion to examine new evidence" or a "writ of errorneous fact finding" or something like that, but there's no such thing. Only the original trial court can examine the facts of the case, and once it has determined that the facts point to guilt, no other court can change that determination. The only way to get the courts to examine new evidence or reconsider a factual decision is to find some legal basis for throwing out the entire original trial.

So the defense lawyers end up casting about for some legal hook that will get them a retrial. Maybe they accuse the defendant's previous lawyer of being legally ineffective, or maybe they accuse the prosecutor of misconduct. Quite often they try to find some ruling by the original trial judge which they can appeal. In any case, the legal basis for the appeal is essentially a pretext to get the factual issue back before the court.

This is an ridiculous situation. Our court system apparently has no simple, honest method of dealing with the possibility that a criminal court followed all the correct procedures and -- perhaps due to facts unavailable at the time -- still reached an erroneous conclusion.

So the lawyers end up hoping to find either an actual error by the original court (which has not already been denied during an earlier appeal) or at least something that looks enough like an error that a sympathetic judge who knows the real situation will throw out the original case. Or if that doesn't happen, maybe the governor will step in with a pardon and relieve the court of the embarassment of going through this charade.

I'm sure I'm oversimplifying, but isn't this an absurd way to run a justice system? Someone please correct me if I'm wrong, but if I'm convicted of murder, and one day later the victim turns up alive and well ("Huh? What? I was just in my mountain cabin writing my novel...") won't my lawyers be scrambling to find a legal basis for an appeal instead simply confronting the court with the fact that the crime never happened?

As you may have noticed, I love reading criminal defense blogs, and now there's a new one I'm looking forward to. Actually it's one of the oldest crimlaw blogs on the web, but it's getting some new life to it: Mirriam Seddiq -- the no-longer-anonymous proprietress of the original Not Guilty blog -- is scraping a few rusty spots off her sword and shield as she prepares to re-enter criminal defense practice.

A few weeks ago, I mentioned that I'm fascinated by the idea of lock picking, but I wondered if it was actually legal to own lock picks here in Illinois. So I posted a question in Avvo Answers, an online service in which lawyers give out free advice, to see if anyone could or would tell me what the law was. I wasn't spectacularly impressed with the response.

Fortunately, I had a backup plan. In a blatant attempt to encourage more Chicago-oriented crimlaw blogging, I emailed my question to Denise Nalley, a local criminal defense lawyer whose Chicago Criminal Law Journal blog is getting off to a slow start. She was nice enough to provide an answer, which I'll repeat here in case anyone else is interested:

Regarding lock picks, it is important to note that many things can be construed as burglary tools under the statute, like screwdrivers.  Also that little stick pin that many parents have to open doors if their kids lock themselves in a room is also technically a lock pick.  So, it is not illegal to just own them, the State must also prove intent to enter AND intent to commit a theft therein.  The problem arises when what you own is a "lock bumping" device.  This refers to a device used to move the internal tumblers and I suspect is what you are interested in.  If a person is found in possession of one of these devices a Judge may infer intent and you will be screwed unless you are in a profession allowed to be possession of said device.  (See statute below)  If found guilty of Possession of Burglary Tools it is a Class 4 Felony punishable by 1-3 years in prison and it is a probation eligible crime.  I have no knowledge of any City statutes deviating from State statutes here.  I hope I answered your questioned.

Nalley also included the relevant statute:

Sec. 19 2. Possession of burglary tools.

(a) A person commits the offense of possession of burglary tools when he possesses any key, tool, instrument, device, or any explosive, suitable for use in breaking into a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any depository designed for the safekeeping of property, or any part thereof, with intent to enter any such place and with intent to commit therein a felony or theft. The trier of fact may infer from the possession of a key designed for lock bumping an intent to commit a felony or theft; however, this inference does not apply to any peace officer or other employee of a law enforcement agency, or to any person or agency licensed under the Private Detective, Private Alarm, Private Security, Fingerprint Vendor, and Locksmith Act of 2004. For the purposes of this Section, "lock bumping" means a lock picking technique for opening a pin tumbler lock using a specially crafted bumpkey.

(b) Sentence.

Possession of burglary tools in violation of this Section is a Class 4 felony.

(Source: P.A. 95 883, eff. 1 1 09.)

That's not quite the answer I was hoping for---when jail is a possibility, I'd prefer a somewhat brighter line---but I suspect it's the best answer I'll get for such a hypothetical situation.

By the way, just so we're all clear, I'm not a lawyer, Nalley has never even met you, and this isn't legal advice.

Scott Greenfield has a couple of interesting items up over at Simple Justice. First of all, there's the case of the Jew with suspicious objects on board a plane, as originally reported in the New York Daily News:

A US Airways crew panicked by a Jewish teen's prayer ritual aborted a flight from LaGuardia Airport on Thursday, landing in Philadelphia amid unfounded fears of a terrorist bomb.

The trouble began when the 17-year-old White Plains youth pulled out two small Scripture-filled boxes used for his morning prayers on the Louisville, Ky.-bound plane, authorities said.

The official story is kind of amusing in a we've-seen-all-this-before kind of way:

Officials with the airline, however, said crewmembers "did not receive a clear response" when they talked with the teen, according to a statement issued by Republic Airways, which owns Chautauqua.

Translation: "We didn't understand his response."

Scott sums up the problem:

Just because you don't know what something is doesn't provide justification to deem it a threat. 

There's a whole world of truth in that sentence. People with power have always felt a paranoid need to crack down on things they don't understand. From jazz to rock music, from ferets to pit bulls, from women who wear pants to men who wear droopy pants, unimaginative people have feared them all.

Anyway, when the plane landed, the kid explained what happened to the police and they let him go on his way.

In the other blog post, Scott tells us about a guy who got stopped for a traffic ticket and immediately told the officer he wanted a lawyer. This made the cop suspicious, and she promptly searched the car, finding his mother's dead body in the trunk.

The problem here is that

the invocation of a constitutional rights cannot serve to give rise to probable cause to believe a crime has been committed, nor can the defendant be questioned after invoking right to counsel.

So the officer discovered the crime during a search that apparently wasn't legal. Naturally, this will cause problems when the case goes to trial.

What I'm wondering, however, is whether the police and FBI would have let the 17-year-old Jewish kid go if he'd asked for his lawyer when they started questioning him. I mean, it must have seemed obvious to the kid that he could explain the problem and they'd understand. As it turned out, he was right.

But that doesn't necessarily mean it was a good idea to explain himself. A lot of people are in jail because they explained things to understanding cops.

Yesterday I started another one of my Avvo Answers experiments, in which I asked the free advice service the following question:

Is it legal to own lock picks in Illinois?

Chicago, IL

And it it's legal, are there places where you're not supposed to have them? In particular, does Chicago have different laws?

[typos in my original question]

This morning I got my first answer from Avvo Level 10 Contributor Alan James Brinkmeier:

This attorney is licensed in Illinois.

Illinois has stringent picklock laws and locales require a locksmith license to use lock-picking devices to open locks in situations where the owner needs access. Lock picks are devices used to lift the various pins found within the cylinder of a lock. These special tools are used in order to open the lock without the use of a key.

Criminal activity is one such reason for strict picklock laws.

You might find my Legal Guide helpful "Ethics: Yes I Need a Lawyer!"

http://www.avvo.com/legal-guides/ugc/ethics-yes-i-need-a-lawyer

Good luck to you.

God bless.

NOTE: This answer is made available by the Illinois lawyer for educational purposes only. By using or participating in this site you understand that there is no attorney client privilege between you and the attorney responding

Brinkmeier's Avvo page describes his practice as 30% appeals, 25% state, local, and municipal law, 25% aviation, and 20% defective/dangerous products. He's apparently been practicing for 26 years.

I Googled "Alan James Brinkmeier" to see if I could find his firm's website. No luck. But I did find listings for him at Zoominfo, Superlawyers, and LawPromo. I thought I also found listings for him at the Southeast Texas Record and CASA, but it turns out those sites are just offering free legal advice services which are really just a feed from Avvo. I guess Avvo is syndicating its Avvo Answers service to other websites.

I also discovered that Houston criminal defense lawyer Mark Bennett has mentioned Brinkmeier in a post entitled "Avvo Answhores":

Brinkmeier, who has "answered" more than 8,000 questions on Avvo, "answers" questions in the area of ethics and professional responsibility, employment and labor, car and auto accidents, debt collection, lawsuits and disputes, child custody, juvenile law, wrongful termination, DUI and DWI, immigration, appeals, civil rights, and domestic violence anywhere in the U.S.

The disclaimers should say that the "answers" are for entertainment, rather than education or information.

What's the game? Why can't people like...Alan Brinkmeier, who recognize that they have no clue what they're talking about, just keep their traps shut and let the lawyers who have some chance of knowing the law answer the questions?

Brinkmeier took offense to this in the comments, and then he and Mark got in to a slightly bizarre argument about the comparative reliability of their respective phone systems.

As is my way, I took the following paragraphs from Brinkmeier's response

Illinois has stringent picklock laws and locales require a locksmith license to use lock-picking devices to open locks in situations where the owner needs access. Lock picks are devices used to lift the various pins found within the cylinder of a lock. These special tools are used in order to open the lock without the use of a key.

Criminal activity is one such reason for strict picklock laws.

and I fed them into Google, which lead me to this page at Superpages.com (which is also the second result in a Google search for the title of my question) in which the first three paragraphs contain the following sentences:

• "The states which have the most stringent laws on this matter include California, Illinois, Maryland, New Jersey, New York, Utah, Massachusetts, New Hampshire, Maine, Washington DC and Canada."
• "In some locales, those individuals not identified in the statute as legally approved to possess this type of device have to obtain a locksmith license before purchasing a lock pick."
• "But qualified locksmiths also use lock picking devices to open locks in situations where the owner needs access and, for whatever reason, can't gain it."
• "Lock picks are devices used to lift the various pins found within the cylinder of a lock in order to open the lock without the use of a key."
• "Why in the world would anyone need to have a lock pick? Criminal activity is one such reason."

(emphasis added)

I don't think the apparent similarity of certain turns of phrase is entirely in my imagination, which leads to one obvious conclusion: Not only does James Alan Brinkmeier give free advice on Avvo, he also writes for Superpages.

This post at D.A. Confidential includes a link to a list of "The 6 Most Badass Skills You Can Learn in Under a Week." Skill number 4 is lock picking, and the article refers to a Lock Picking School In A Box. which sounds like something you could make yourself by taking a lock apart.

I've always been fascinated by things like lock picking and safe cracking, and maybe some day I'll take the time to learn more about it. Of course, I'd probably have to have some lock picks to do that, which got me wondering what the laws are on possession of lock picking tools. If only I knew a lawyer I could ask...

This seemed like a good time to try another question for Avvo Answers---Avvo's forum where lawyers earn points by answering questions for free. The last time I tried this, it didn't work out too well. The first lawyer pulled an answer out of his butt, and the second lawyer---Illinois criminal defense lawyer Jeremy Richey---was able to give the answer I was looking for only after we talked about it a bit here on the blog.

Is it legal to own lock picks in Illinois?

Chicago, IL

And it it's legal, are there places where you're not supposed to have them? In particular, does Chicago have different laws?

[typos in my original question]

Now let's see if anyone provides any interesting answers.

Update: I've posted about a response.

Radley Balko bids farewell to Kern County California D.A. Ed Jagels:

You'd be hard pressed to find a law enforcement official anywhere in the country who better embodies the worst excesses of America's sharp turn toward law-and-order crime policy over last 30 years. From expanding the death penalty to eroding the rights of the accused to jacking up prison populations to formulating crime policy around sports metaphors, Jagels created a high-profile position by backing just about every bad crime policy in a generation.

But if history dispenses justice more honorably than Ed Jagels ever did, the boyish-looking D.A. will be most remembered for his role ruining countless lives in perhaps the most shameful of the Reagan-era "tough on crime" debacles: the coast-to-coast sex abuse panic of the 1980s.

It's because of prosecutors like Jagels---and while few are as successful as Jagels, many are trying---that I don't automatically assume the prosecutors are the good guys. From Radley's account, Jagels was a cancer on the California justice system. Yet unlike cancer, he was encouraged to thrive and grow by other people in the system.

Nobody ever held him responsible. Kern county residents paid out millions in settlements for his errors, but Jagels himself escaped scott free. He's advising one of next year's candidates for governor.

South Carolina criminal defense lawyer Bobby Frederick has an excellent example today of the scourge of profitable punishment:

Law enforcement agencies receive grants based on the number of DUI arrests they make - if the number of arrests goes down, they are in danger of losing that money. Law enforcement officers are given awards for the number of DUI arrests they make (arrests - not convictions), which encourages them to make as many DUI arrests as they can in order to gain recognition.

He also refers us to a great explanation from Lawrence Taylor of what MADD is really all about.

I'm guessing that most of you are neither lawyers nor career criminals, which means that, like me, your most significant role in the criminal justice system is probably going to be juror. As Norm Pattis explains, this means you're going to be kept in the dark:

When we refuse to let juries know the truth about the consequences of a conviction in a criminal case we hamper a jury's ability to check the abuse of power. Juries that are not fully informed can't do their job. Withholding truth from juries is dishonest...

We want juries to decide facts and facts alone, leaving to the judge the responsibility to impose such conditions as the law requires. This rigid separation of fact and law results in moral paralysis, however. In what other context do we ask folks to make a decision regardless of the outcome?

Be sure to read the whole thing.

Allowing the jury to makes its decisions without knowledge of the consequences would make sense if the jury's fact-finding process was well-defined---like a laboratory test or a gymnastics score---but it's not.

The instructions to jurors famously include the phrase "proof beyond a reasonable doubt" but, almost as famously, the word "reasonable" is never defined for the jury. It's left to the jurors themselves to figure out what it means. And as a practical matter, wouldn't you expect that the reasonableness of the doubt depends on the consequences of being wrong?

"We tend to idealize tolerance, then wonder why we find ourselves infested with losers and nut cases. -- Patrick Nielsen Hayden

"I have seen gross intolerance shown in support of tolerance." -- Coleridge

Cue the music.

The United Nations has proclaimed today, November 16, as the International Day of Tolerance. This came in the wake of the UN proclaimimg 1995 the International Year of Tolerance -- whose successes Wikipedia documents in grueling detail. (Apparently, many did not get the memo.)

• February 13 - A United Nations tribunal on human rights violations in the Balkans charges 21 Bosnian Serb commanders with genocide and crimes against humanity.
• February 15 - Hacker Kevin Mitnick is arrested by the FBI and charged with breaking into some of the United States' most "secure" computer systems.
• February 17 - Colin Ferguson is convicted of 6 counts of murder for the December 1993 Long Island Rail Road shootings and later receives a 200+ year sentence.
• February 21 - Ibrahim Ali, a 17-year-old Comorian living in France, is murdered by 3 far-right National Front activists.
• March 1 - In Moscow, Russian anti-corruption journalist Vladislav Listyev is killed by a gunman.
• March 3 - In Somalia, the United Nations peacekeeping mission ends.
• March 6 - On an episode of The Jenny Jones Show ("Same-Sex Crushes"), Scott Amedure reveals a crush on his heterosexual friend Jonathan Schmitz. Schmitz kills Amedure several days after the show.
• March 16 - Mississippi ratifies the Thirteenth Amendment, becoming the last state to approve the abolition of slavery. The amendment was nationally ratified in 1865.
• March 20 - Sarin gas attack on the Tokyo subway. Members of the Aum Shinrikyo religious cult release sarin gas on 5 subway trains in Tokyo, killing 12 and injuring 5,510.
• March 31 - Tejano superstar Selena is killed by the president of her own fanclub, Yolanda Saldívar.
• April 2 - An explosion in Gaza kills 8, including a Hamas leader.
• April 19 - Oklahoma City bombing: 168 people, including 8 Federal Marshals and 19 children, are killed at the Alfred P. Murrah Federal Building. Timothy McVeigh and one of his accomplices, Terry Nichols, set off the bomb.
• April 24 - A Unabomber bomb kills lobbyist Gilbert Murray in Sacramento, California.
• May 16 - Japanese police besiege the headquarters of Aum Shinrikyo near Mount Fuji and arrest cult leader Shoko Asahara.
• May 17 - Shawn Nelson, 35, goes on a tank rampage in San Diego.
• May 20 - U.S. President Bill Clinton indefinitely closes part of the street in front of the White House, Pennsylvania Avenue, to vehicular traffic in response to the Oklahoma City bombing.
• May 23 - Oklahoma City bombing: In Oklahoma City, Oklahoma, the remains of the Alfred P. Murrah Federal Building are imploded.
• June 2 - Waffen-SS Hauptsturmführer Erich Priebke is extradited from Argentina to Italy.
• June 22 - Japanese police rescue 365 hostages from a hijacked All Nippon Airways Flight 857 (Boeing 747-200) at Hakodate airport. The hijacker was armed with a knife and demanded the release of Shoko Asahara.
• June 29 - Iraq disarmament crisis: According to UNSCOM, the unity of the UN Security Council begins to fray, as a few countries, particularly France and Russia, become more interested in making financial deals with Iraq than in disarming the country.
• Iraq disarmament crisis: Iraq threatens to end all cooperation with UNSCOM and IAEA, if sanctions against the country are not lifted by August 31.
• July 1 - Iraq disarmament crisis: In response to UNSCOM's evidence, Iraq admits for first time the existence of an offensive biological weapons program, but denies weaponization.
• July 5 - The U.S. Congress passes the Child Protection and Obscenity Enforcement Act, requiring that producers of pornography keep records of all models who are filmed or photographed, and that all models be at least 18 years of age.
• July 11 - Bosnian Serbs march into Srebrenica while UN Dutch peacekeepers leave. Large numbers of Bosniak men and boys are killed in the Srebrenica massacre.
• July 21-26 - Third Taiwan Strait Crisis: The People's Liberation Army fires missiles into the waters north of Taiwan.
• Iraq disarmament crisis: Following the defection of his son-in-law, Hussein Kamel, Saddam Hussein makes new revelations about the full extent of Iraq's biological and nuclear weapons programs. Iraq also withdraws its last UN declaration of prohibited biological weapons and turns over a large amount of new documents on its WMD programs.
• August 4 - Croatian forces launch Operation Storm against Serbian forces in Krajina, with the cooperation of the ARBiH, and force them to withdraw to central Bosnia and Herzegovina.
• August 5 - Croatian forces take Knin and continue to advance.
• August 7 - Operation Storm ends with a UN-brokered ceasefire; remaining Serbian forces start surrendering.
• August 24 - Microsoft releases Windows 95.
• August 28 - A Serbian mortar bomb near a Sarajevo market square kills 37 civilians.
• August 29 - Eduard Shevardnadze, the Georgian head of state, survives an assassination attempt in Tbilisi.
• August 30 - The NATO bombing campaign against Serb artillery positions begins in Bosnia and Herzegovina, continuing into October. At the same time, ARBiH forces begin an offensive against the Bosnian Serb Army around Sarajevo, central Bosnia, and Bosnian Krajina.
• September 6 - NATO air strikes continue, after repeated attempts at a solution with the Serbs fail.
• September 19 - The Washington Post and The New York Times publish the Unabomber's manifesto.
• September 27-28 - Bob Denard's mercenaries capture President Said Mohammed Djohor of the Comoros; the local army does not resist.
• October 1 - Ten people are convicted of bombing the World Trade Center in 1993.
• October 4 - France launches a counter-coup in the Comoros with 600 soldiers. They arrest Bob Denard and his mercenaries and take Denard to France; Caabi el-Yachroutu becomes the interim president.
• October 16 - The Million Man March is held in Washington, D.C.. The event was conceived by Nation of Islam leader Louis Farrakhan.
• October 23 - In Houston, Texas, Yolanda Saldivar is convicted of first degree murder in the shooting death of Selena Quintanilla Perez and 3 days later is sentenced to life in prison.
• November 1 - Participants in the Yugoslav War begin negotiations at Wright-Patterson Air Force Base in Dayton, Ohio.
• November 2 - The Supreme Court of Argentina orders the extradition of Erich Priebke, ex-S.S. captain.
• November 3 - At Arlington National Cemetery, U.S. President Bill Clinton dedicates a memorial to the victims of the Pan Am Flight 103 bombing.
• November 4 - Israeli Prime Minister Yitzhak Rabin is assassinated at a peace rally in Tel Aviv.
• November 10 - Iraq disarmament crisis: With help from Israel and Jordan, UNSCOM inspector Scott Ritter intercepts 240 Russian gyroscopes and accelerometers on their way to Iraq from Russia.
• November 10 - In Nigeria, playwright and environmental activist Ken Saro-Wiwa, along with 8 others from the Movement for the Survival of the Ogoni People, are hanged by government forces.
• November 16 - A United Nations tribunal charges Radovan Karadžić and Ratko Mladic with genocide during the Bosnian War.
• November 21 - The Dayton Agreement to end the Bosnian War is reached at Wright-Patterson Air Force Base near Dayton, Ohio (signed December 14).
• December 14 - The Dayton Agreement is signed in Paris.
• December 15 - The European Court of Justice rules that all EU football players have the right to a free transfer among member states at the end of their contracts.

Worldwide response to this abbreviated version has been dramatic.



Meanwhile, blogging continues . . .

The irreplaceable Randazza encourages tolerance for anonymous douchebags, while Jack of Kent does not urge all that much tolerance for the UK's much-mocked libel laws.

Personal injury lawyer Erik Turkewitz has decided to stop tolerating spam in his comments section from law firms, but tolerantly limits his response to outing them. (Apparently, his bastinado is in the shop.)

Many writers are somewhat less than tolerant of Google's habit of scraping the entire contents of their works for Google's benefit. The Author's Guild and the AAP sued -- a post mortem on the now-defunct settlement proposal as a look toward a new proposal was performed by Matthew Sag at Concurring Opinions. (Full disclosure: I said no to the proposed settlement; the remix doesn't look any better to me.)

Moving on . . . I don't follow such things closely, but I understand that the transportation of an imperfect oblate spheroid consisting of a swine's epidermis for short distances and/or interference with said transport can be a very profitable profession, and has inspired many bons mot. One such highly-paid inflated epidermis transporter engaged in such clever formulations as 
was one Larry Johnson of the Kansas City "Chiefs". Moved by the persuasiveness of the above and similar such clevernesses, his employers have, with minimal tolerance, invited him to seek other employment; Rob Radcliff furnishes the details.

Intolerance (as well as lack of humor) is utterly prevalent, of course, in airline travel, where the fearless screeners of the Federal Airline Transport And Security Service (known, strangely, by the acronym of "TSA") strive mightily to prevent the smuggling of any of the traditional hijacker's tools -- guns, knives, boxcutters, the Medal of Honor, bottled water, nail clippers, meat thermometers and such -- aboard airplanes, but have now decided that cash, even in multi-thousand-dollar quantities, does not represent an immediate danger. (This may be a relief to those who carry smaller amounts of cash -- say, $20 worth of quarters -- in a heavy sock in their carry-on.)

What does? Dean Vernon Wormer has explained that we're all on Double Secret Probation. TSA Spokesperson Lauren Gaches has explained that the memo that would tell us all what we can't carry is only available if it's waterboarded out of her in response to a FOIA request.

Up until recently, a great deal of tolerance was displayed by the US Army with regard to one Major Nidal Hasan, whose presentation to senior Army MDs on the medical subject of I Am About to Engage in Sudden Jihad Syndrome If You Don't Stop Me, The Koranic Worldview As It Relates to Muslims in the US Military was followed by his transfer from Walter Reed to Fort Hood. John Philips argues -- persuasively to this intolerant amateur -- that the apparent facts of the situation rendered the Army's lack of discrimination unnecessary, and they could have, maybe, like, fired him.

The Fort Hood murders have inspired a lot of questions, as well as the usual posturing, which I'm going to skip. Eugene Volokh dispenses with what seems to me to be one of the easier ones -- does the Second Amendment prevent the army from banning soldiers from carrying firearms on military bases? No.

Another easy one -- too difficult, it seems for Wolf Blitzer at CNN -- is how a lawyer who used to be a soldier could choose to represent a man accused, manifestly for good reason, of a horrible crime. Ken at Popehat shows limited tolerance for that stupid question.

One area where tolerance seems to run rampant society is for bad behavior by guys who have been issued badges.
The video shows Maricopa County Detention Officer Adam Stoddard snooping about and finding some interesting reading material in a defense counsel's folder --

She subsequently, and a bit irritatedly, explains, "you don't get to do that!" (That appears to not be the case, at least in Maricopa County.)

-- and sharing it with an equally badged friend, who promptly spirits it out of court.

Lawyers from all over the blawgosphere have been making intolerant statements about Mr. Stoddard's reading preferences, very much not in the spirit of today.

One particularly cogent comment came from Mark Bennett, who noted that "Also note that the defense lawyer's first reaction is to want to know if she's being accused of wrongdoing." Occurred to me, too, that she might have been worried that narcotics had been planted there. Wouldn't be the first time.

The sequel showed a lot of tolerance, by the way; when Stoddard, under oath, told self-contradictory stories about why he ended up going through the defense counsel's briefs (the legal kind, silly), the judge simply set another hearing, for further tolerant dithering.

The video, also by the way, was the official court video; no amateurs involved.

In England, though, the problem of police officers concealing their identities, presumably when performing various naughtinesses, has come to the attention of the authorities, who have come up with a simple solution: a "request" that all videos and photography of said naughty badged boys be thrown down the memory hole, brought to us by Charon QC.

The authorities in Stoughton MA apparently, though, are not tolerant of former police officer David M. Cohen's demand for overtime payments for his work on a criminal case, totalling "at least"

... $113,000, which includes 87 accrued vacation days, 125 unused sick days, 144 hours of compensation time accrued for not using sick time, 152 hours of supervisor comp time, 481 hours for court appearances related to his criminal case, 280 hours of overtime to prepare for his case, at least 61 percent education incentive pay for 2007, and 61 percent for accrued stipends and benefits.

For some reason -- intolerance, perhaps -- the demand has been rejected; Cohen was the defendant in the criminal case, and convicted on four charges.

Great tolerance has been demonstrated in the sad case of Tennessee State Trooper Brent Gobbell, who decided to send himself a remarkably racist email, but accidentally ended up sending it to 787 other state employees; he's getting 15 days off and a stint of diversity training, presumably after which he'll return to his prestigious job providing security at the Tennessee Supreme Court. (I don't make this stuff up, you know.)

Turning away from the tolerance issue . . .

Tomorrow is the NRA's birthday, and as good an excuse as I can find for a bit of gun stuff. Self-admitted occasional NRA supporter Todd Wilkinson gnashed his teeth at the HuffPo over his anguish that shortly, state laws about carrying guns will be applied to National Parks. He doesn't, for some reason, show that this is a bad idea because of the flurry of shootings in state and local parks in those states, probably because there hasn't been one. If I understand him correctly, his argument is "Do it for the bears."

The bears, when pressed for comment, murmured something about "pickanick baskets."

Media Matters rends its garments over how the Hasan shooting hasn't, unlike previous shootings in victim disarmament zones, excited a flurry of gun control discussion and perhaps yet more legislation.

In Germany, a postscript to their mass shooting earlier this year: German regulations now permit the authorities to enter gun owners' households without notice or warrant, just to be sure that the guns are stored with Teutonic correctness. In that case, the gun that the young murderer used hadn't been locked up.

Over in the US, neither was Jacksie King's:

"Jacksie King was an elderly grandmother who lived in a small Illinois house on dead-end Gaty Avenue since her youth. At 87, she mostly stayed at home and enjoyed frequent visits from her daughter. Her life changed one December night when an unidentified intruder cut her phone lines, pried the security bars off her window and invaded her home. After severely beating her, the man robbed her house and escaped. The case was never solved. Two months later, King awoke to the sound of an intruder breaking through her storm door at 2 a.m. As before, the bars were pried off her window to access an enclosed porch, and again the phone lines were cut. King reached for her only remaining lifeline--a .38-cal. Colt revolver her daughter had given her for protection. This time the would-be victim fired, striking 49-year-old Larry Tillman in the chest, immediately dropping him on the doorstep. Terrified, King stayed in her chair for four hours, clutching her revolver, until her daughter arrived. Police later learned Tillman was a career criminal with an extensive record, including residential robbery."

Last year's Heller decision is beginning to percolate through the courts; the DC Circuit weighs in, and the Chicago Gun Case is gearing up to be heard by the Supreme Court.

(As I understand it, the authorities in Chicago found a little-known addition to "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed, unless, like, we want to, then it's totally okay.")

Expect oral arguments on January 11, another snappy 5-4 decision forthwith, or maybe fifthwith.

This weeks' WTF gun law moment was provided by the UK, where a man who found a sawed-off shotgun dumped in his yard promptly brought it to the nearest police station, only to be arrested, prosecuted and convicted for doing so. Paul Clarke will spend at least five years in prison. I guess maybe the Brits need even stricter gun laws.

Meanwhile, the Hasan rampage has excited more commentary on gun control. The eminent legal scholar, Chicago's second Mayor Daley, explains:

"Unfortunately, America loves Guns. We love guns to a point where that uh we see devastation on a daily basis. You don't blame a group."

Well, there's always the murderers, but . . . Daley is mayor of the city with the strictest gun control laws of any major city in the US; it also has one of the highest violent crime rates; it would be intolerant to show the connection between the two, but John MacAdams obliges.

Perhaps more sober analysis of what to do -- rather than "don't blame a group" -- in the unlikely event you find yourself around an active shooter is provided by Karl Rehn here, courtesy of Lawrence Person.

A few goodies just don't fit in with either of the two themes of the day, but I couldn't leave out Jamie Spencer's entry, which combines a pointer to a tour of Oaksterdam University, "the first cannabis college" and a pointer to U.S. v. Villar, where a guilty verdict was immediately followed by an email from one of the convicting jurors to the defense attorney, where the juror explains that he and two other jurors really didn't think that the convicted had been proven guilty, but was sure that there was no point in holding out, as the guy wouldn't get any better a jury the next time around. (As I understand it, three of the jurors weren't sure he'd been proven guilty, but were sure that he'd been proven to be Hispanic.)

I can't quite close this with that bit of ugliness, so I'll just point to the new scourge that is just ruining the reputation of Las Vegas: Strippers in a Box, and, courtesy of Grits for Breakfast, the only funny Taser video I've ever seen.

#

My own views on tolerance were shaped by General Charles Napier, who explained to a group of Indian gentlement that Her Majesty's forces were utterly committed to tolerance. (The issue was the practice of "suttee" in India, where a widow, out of grief at the loss of her husband, would invariably throw herself upon his funeral pyre, often assisted by a bunch of men who were pretty sure that her own protestations and struggles to the contrary were purely pro forma.)

You say that it is your custom to burn widows. Very well. We also have a custom: When men burn a woman alive, we tie a rope around their necks and we hang them. Build your funeral pyre; beside it, my carpenters will build a gallows. You may follow your custom. And then we will follow ours.

Then again, I'm not known for my tolerance.

Happy birthday, NRA.

(Thanks to the anonymous Ed. of Blawg Review for offering me this opportunity, and to both him and Colin Samuels for many great suggestions for links.)

Popehat has Blawg Review #233 today, and the theme is based on the story of Joshua Norton I, Emperor of the United States and Protector of Mexico. If you haven't heard of Emperor Norton before, it's a cool story.

By the way, thanks to my co-blogger Joel, Blawg Review will be coming here in about a month.

About the only good thing I can think about in the whole Polanski fooforaw is that it gives folks who wouldn't otherwise have had one an easy opportunity to stake out a not particularly morally difficult or brave position against middle-aged guys raping young girls, and in favor of said assholes being given appropriate punishment for it.

Miami lawyer Brian Tannebaum takes a little time out from both what is apparently a very successful legal practice (as well as endless fascinating with moderately expensive wine and an obsession as to which group of men is marginally better at transporting an oblate spheroid constructed of a fragment of inflated swine's epidermis in an arbitrary direction) to point out some obviousnesses; Brian has, from time to time, a keen eye for the obvious.

A lot of folks have been blogging about Polanski.  I'll join in, perhaps, but  . . . I'd like to know a little more, before I start flogging my own keen eye for the obvious.

Which leads to my questions -- which aren't of the hypothetical of "What sort of rope would, in a saner society, be used to execute the 'suspended sentence' that the bastard deserves?" as easy and tempting a target as that might be.

Nah.  Realistically -- and forgetting about what should or shouldn't be done -- what sort of sentence would a guy who doesn't have a plea bargain be likely to face, today in California, for the offense Polanski pleaded guilty to?  (I'm not asking about what somebody who pled out recently would get; the law may have changed in CA in the ensuing decades, and I'm assuming -- although certainly willing to be corrected -- that he'd be sentenced based on what the law was then, as opposed to now.)

Also:  on the flight charge or charges, what would the CA crimes be that he's at least possibly going to be prosecuted for violating by his flight?  And what, should he be charged and convicted, would he likely to face in terms of time for those?

I'm not asking any lawyer to put his law license into the pot for the purposes of satisfying my curiousity, but if anybody -- with or without a law degree -- has any knowledge on the subject that they'd care to share, I'd love to see it in the comments.

 

... and a look back at how to solve the problem of the armed village idiot...

There's folks who say (I'm one of them) that the MCPPA is one of the best carry permit laws in the country.  They -- we -- have a point. 

Quick digression:  I'm occasionally praised for being one of the folks who helped write the law.  That's flattering, but it's not true; I've learned a fair amount about how to draft legislation since, and do have some future plans to help write some in the future, but, just to keep the record straight:  I had no hand at all in authoring the bill.

(In fact, because I was involved in writing the book at the time that the law was being negotiated and drafted, Joe Olson and I made the decision that, for ethical reasons, I was to be kept out of the loop on the discussions, so as not to unfairly disadvantage a -- hypothetical and nonexistent, as it turned out -- competitor.  In retrospect, I think we bent over too far backwards, but . . .)

While the main author of the bill was Lynda Boudreau, then a member of the MN House, most of the language was drafted by Joseph Olson and David Gross.  It's hard to overstate the importance of Joe in the modern Second Amendment movement, so rather than get into it, just take my word for it:  he's one of the giants.  It's easy to understate the importance of David's contributions; David does it all the time.  While Joe had a lot of trial experience in his younger days, he's mainly been an academic for some decades, now; David's experience in the trenches -- and the lessons learned from that experience -- was critical.

One of the problems facing anybody crafting a carry law is this:  who should and shouldn't get a permit?  One view -- and it's mine -- is that the Second Amendment simply recognizes a right, and that there should be no need for permits at all; we don't, after all, have to get a religion permit in order to be able to fast on Yom Kipper, attend High Mass, or head over to D'Amico to worship the Flying Spaghetti Monster by consuming the traditional zuppa de clams, after all.

But, as a practical matter, that wasn't what was going to happen in Minnesota in 2003 -- or probably ever.

Another view -- which I reject -- is that carrying a handgun for personal protection is a great privilege, which only the most special people should be allowed to have.

The MCPPA strikes a balance.  As a matter of presumption, just about anybody who is legally entitled to possess a firearm at all, and who has gotten what can be comically minimal training in the safe use of a pistol --

Training may be demonstrated by ... completion of a firearms safety or training course providing basic training in the safe use of a pistol...  

(b) Basic training must include:

(1) instruction in the fundamentals of pistol use;

(2) successful completion of an actual shooting qualification exercise; and

(3) instruction in the fundamental legal aspects of pistol possession, carry, and use, including self-defense and the restrictions on the use of deadly force.

-- gets a permit within thirty days of applying. 

But, you might say, what do you do about the borderline cases?  Let's say you have some raving nutcase who is able to get through a minimal carry class, and who hasn't gotten in such serious legal trouble that he's forbidden from so much as possessing a firearm, even under supervision -- are you saying that he gets to wander around with a loaded handgun, until he commits a felony?   

Good question; I'm glad I asked it.   

One simple solution would be to give some governmental authority -- the local sheriff, say -- the right to decide that some applicant was just too dangerous and nutty to be wandering around in public with a loaded gun.  And that would have some benefit to it, sure.  But it would also have some risks:  what do you do about a sheriff who goes beyond that?  Historically, in Minnesota and everywhere else, anytime you give some politician or government official any power at all, some are going to abuse it.

And there was a real history of permit denial abuse in Minnesota.  The Richfield police chief famously said that, as far as he was concerned, if you're running down the street being chased by an axe murderer, you shouldn't be able to have a gun to defend yourself.  (No, I'm not making that up.)

Which is why the MCPPA provides both authority to the sheriff, and a check on it.

(a) The sheriff must, within 30 days after the date of receipt of the application packet described in subdivision 3:... (1) issue the permit to carry [or] ... (3) deny the application on the grounds that there exists a substantial likelihood that the applicant is a danger to self or the public if authorized to carry a pistol under a permit.

Hmmm... so the sheriff can deny a permit to a known knutcase, even if he isn't legally barred from handgun possession. But what, you ask, is to stop the sheriff from just denying it to, well, everybody?  Yeah, sure, somebody can take him to court, but that gets expensive.

And here's where Joe and David were stone fucking brilliant; I'm going to quote the whole subdivision, adding some emphasis:

Subd. 12.Hearing upon denial or revocation.

(a) Any person aggrieved by denial or revocation of a permit to carry may appeal by petition to the district court having jurisdiction over the county or municipality where the application was submitted. The petition must list the sheriff as the respondent. The district court must hold a hearing at the earliest practicable date and in any event no later than 60 days following the filing of the petition for review. The court may not grant or deny any relief before the completion of the hearing. The record of the hearing must be sealed. The matter must be heard de novo without a jury.

(b) The court must issue written findings of fact and conclusions of law regarding the issues submitted by the parties. The court must issue its writ of mandamus directing that the permit be issued and order other appropriate relief unless the sheriff establishes by clear and convincing evidence:

(1) that the applicant is disqualified under the criteria described in subdivision 2, paragraph (b); or

(2) that there exists a substantial likelihood that the applicant is a danger to self or the public if authorized to carry a pistol under a permit. Incidents of alleged criminal misconduct that are not investigated and documented may not be considered.

(c) If an applicant is denied a permit on the grounds that the applicant is listed in the criminal gang investigative data system under section 299C.091, the person may challenge the denial, after disclosure under court supervision of the reason for that listing, based on grounds that the person:

(1) was erroneously identified as a person in the data system;

(2) was improperly included in the data system according to the criteria outlined in section 299C.091, subdivision 2, paragraph (b); or

(3) has demonstrably withdrawn from the activities and associations that led to inclusion in the data system.

(d) If the court grants a petition brought under paragraph (a), the court must award the applicant or permit holder reasonable costs and expenses including attorney fees.

That last paragraph isn't just unusual in carry laws; it's unique.  And it provides a good, albeit imperfect, check on bad judgment or bad faith by the sheriff:  while the denied applicant does have to come up with some money -- usually around $3000 -- for a lawyer, if he wins, the court must order the sheriff to pay him back.

Nobody's perfect, not even -- maybe particularly not -- guys with badges. And it works both ways to correct errors.

Let's take a perhaps not entirely hypothetical case.  Some guy with a history of relatively minor brushes with the law -- interfering with a 911 call, a couple of disorderly conducts and two DWIs, say, manages to get through some sort of carry class at local gun shop -- and applies for a permit.  Looking at the application and his criminal history, the deputy says something like, well, Josh hasn't been in trouble again for a few years; maybe he's gotten his act together -- let's just cut the guy a break, and issues the permit.

Well, maybe it was the right call at the time; maybe not.  But let's say that this perhaps hypothetical guy goes on to pick up another DWI, a third and then a fourth disorderly conduct conviction, and tops it off with a 5th degree assault when he peppersprays a customer at his security guard job, and spends thirty days in jail.  

Is the sheriff out of luck just because none of those are felonies?

Not at all.  Look at the law, again, specifically Subd. 4 (c):

The sheriff must conduct a background check by means of electronic data transfer on a permit holder through the Minnesota Crime Information System and the National Instant Criminal Background Check System at least yearly to ensure continuing eligibility. The sheriff may also conduct additional background checks by means of electronic data transfer on a permit holder at any time during the period that a permit is in effect.

Yup.  Every year, the sheriff has to redo the electronic background check at least once, and can do it at any time.  And if he finds that there is, as the law says, "a substantial likelihood that the applicant is a danger to self or the public"? 

See Subd 8:

The sheriff ... may file a petition with the district court therein, for an order revoking a permit to carry on the grounds set forth in subdivision 6, paragraph (a), clause (3).

Pretty neat, eh?  Which is among the many reasons why, in the greater scheme of things, the MCPPA is probably the model against which other modern, mainstream, commonsense "shall issue" carry permit laws will be measured.

Oh -- and as a minor thing: it's also why one village idiot (pictured at right) will likely be getting a knock on the door, sooner than later, and finding a deputy serving him with his copy of a revocation petition.

All's well that ends well.

Let's go to the tape. Do watch the whole thing, from beginning to end, but after you do that, let's start watching it, again, starting at 3:40 into it.

3:50 MPD squad, lights and sirens on, screams to a stop, and two cops leap out and join the struggle. The one furthest from the camera brings his fist -- it's not clear if he's holding a small weapon in it -- up and down seven times, apparently striking Jenkins repeatedly.

4:05 a third and fourth squad car scream to a stop, and a cop in a wool cap runs over, and at 4:06 shoves one of the cops out of the way, and begins kicking Jenkins.  While Jenkins is being kicked and punched by several cops, one voice can be heard to shout, "Put your hands behind your fucking back."

4:25 One of the cops screams about "something sharp," and the cops take a break from the beating long enough for Jenkins to roll to a sitting position. He's then dragged out of view of the closest squad camera, and the beating continues, with one of the cops taking what appears to be a cigarette break, looking back from time to time to the camera, then for whatever reason, positioning himself so that he blocks the view of Jenkins.

Over on the forums at officer.com, Buck Eight and Squad51 sum it up thusly:

I watched the video and didn't really have a problem with it. Things always look worse on video. Now that Dolan has the FBI getting involved and the story is ALL over the news, the guy is in for a big payday. I hope nobody loses their job over this.

Tasing, spraying and joint locks/pain compliance all look a hell of a lot better to someone watching a video (ie: a jury) than punches and kicks raining down.

http://www.startribune.com/local/534...tml?page=3&c=y

...I doubt that any of the officers will be in serious trouble over this. Kicks our part of our use of force training when dealing with combative suspects. This will be ruled a policy failure and kicking will disappear. The reason that the other officers will not get into huge touble or worse is that they where responding to an officer need help call and when they arrived saw that one officer was fighting with one and they responded to that with force to take one that they had reason to believe had assaulted an officer and he was dealt with. we have a good relationship with the county prosecuters I doubt that they would get much milage out of this. Not only that but I bet you money that if he does sue it is settled out of court for basically lawyers fees....if you watch the video in its entireity..yeah this is a no brainer the cops are in the clear...

Happy to be here proud to serve.

Minneapolis is in Hennepin County; the County Attorney -- the guy whose office prosecutes felonies in HennCo -- is Mike Freeman.  squad51 and his friends have a "good relationship" with county prosecutors.

The quote?  That's from Officer Richard Walker, early on in the stop.  Tim Dolan, the Minneapolis Police Chief, has ordered all of his officers to watch the video. The kicking it seems, was too much even for him.  "Dolan said the actions of Officer Richard Walker, the initial officer involved, 'all appear to be very appropriate.'"  He just doesn't like the kicking. Walker not stopping the thumping?  Doesn't bother Dolan.  Nor does the thumping bother squad51 and his friends at officer.com.  After all, they have a "good relationship" with the county prosecutors.

What will they learn from this?  A skeptic might think that they'll learn to station cops in front of the cameras to block recordings of the kicking in the future.

Either that, or there'll be an in-service on the use of the erase button.

But I'm sure they'll all watch the tape. Hell, maybe they'll even use some CI money to buy doughnuts for Movie Night.  Been done before, after all.

The Ninth Circuit just decided United States v. Comprehensive Drug Testing which includes some very important new rules for seizing data on people's computers. Or so I'm told by folks like Scott Greenfield and Orin Kerr, who understand these things far better than me.

As I understand the problem Kozinski is trying to solve, the government used to treat a search for anything on a computer as a license to rummage through all of it. This makes a certain amount of technical sense because the name of the file is merely a convention for humans: The file WeddingGuests.xls can actually contain the block-by-block sales data for your drug-dealing empire, so the police are going to want to look at it if they have a warrant for the records of a criminal enterprise.

Even the file extension that identifies the content---.mp3, .jpg, .xls, .doc---is a standard that can be bent or broken. Rename ChildPorn.jpg to 2009Q3-PandL-Newark.xls and it will look like a spreadsheet in Windows Explorer, and if you double click it, Windows will try unsuccessfully to open it with Excel. Law enforcement agencies are aware of this, so they will want to examine every file.

Once they've looked at a file, even if it's not the one they're searching for, they can't un-look at it. Under the plain view exception to the warrant requirement, they can go ahead and use it in a criminal investigation.

In the physical world, the cops generally can't do this so extensively. If they have a warrant to search your home for a baseball bat used as a murder weapon, they can't search your medicine cabinet and read your checkbook. (On the other hand, if they they open your closet and see 20 kilos of cocaine, it comes in under the plain view exception, since it was reasonable for them to look in the closet.)

In the world of your computer, it's all just data on the disk, and there's no way to distinguish it until after they've oopened it up. It's as if they had a warrant to search your house for a murder weapon, but then took the time to rummage through everything you own, and it all came in as evidence.

It's understandable, but it's also a problem. Lots of people these days keep their entire lives on their computer, and the Constitutional requirement that warrants must be "particularly describing the place to be searched, and the persons or things to be seized" seems to be violated if every computer search allows police to rummage through the digital reflections of our entire lives.

The Ninth Circuit's ruling fixes that problem in a rather extraordinary manner, as summarized by Orin Kerr:

They created a set of prophylactic rules that has the effect of banning plain view through ex ante restrictions. The Ninth Circuit took a truly remarkable step: It ordered the government to behave exactly as it would behave if the plain view exception did not exist. The court wrote out a list of ways that the government would act if there were no plain view exception, and then ordered the government to follow those rules as a condition of getting the warrant in the first place. The plain view exception is gutted by ensuring the government will never be in a position to try to offer the evidence to a court in the first place.

(Chief Judge Alex Kozinski, who wrote the opinion, has had a few problems of his own with people looking over his computer files, so maybe he's one of those empathetic judges everyone is talking about.)

As others have pointed out, no computer search in history has ever met this standard, so things are going to get complicated for a while. Or at least until the Supreme Court reverses it, as is their way with Ninth Circuit decisions that make life too hard for law enforcement agencies.

On the other hand, I don't think the Ninth Circuit went far enough. When law enforcement agencies search your house, they eventually leave. They may take some evidence with them, but you do get to use your house again.

But when law enforcement agencies want to search your computer, they often take it with them and keep it during the investigation. This is a problem for those of us who live our lives on the computer and make our livings from it. (Backups don't help, since the government can and will take those too.) The government can investigate you for a white collar crime and wipe out your business by taking all your computers without ever coming close to getting a conviction.

There's no excuse for this. A copy of the digital data on your computer is exactly as good as the original, so they only need a copy for purposes of an investigation. Taking your whole computer is either lazy or downright punitive. It's punishment without trial.

Going even further, I'd like to see our computers recieve some of the same protections that our bodies and minds do. My computer may not be wired to my brain like some sort of cyberpunk implant, but it's a pretty intimate part of my life. And it can only contain information and ideas, so it's not like there are safety concerns.

I find it perverse that any communication with our lawyers is protected from government snooping, but our own personal records, notes, and diary contents are considered fair game for a government fishing trip. (Important tip to diarists: Label your diary as a "Privileged Legal Communication." Claim it's a timeline of events for your lawyer.)

Finally (and if you know me you've seen this coming) we wouldn't have most of these problems if we didn't criminalize so much consensual conduct. Time and again, these screwy Fourth Amendment exceptions turn up in cases without victims, where the government has to go snooping because nobody else cares that the so-called crime has occurred.

I gave Avvo Answers---Avvo's forum for lawyers to answer questions for free---a test drive a couple weeks ago with a test question about bailing someone out, and the result was a bit confusing, but I eventually got the answer I was looking for. You can read about it all in three short posts starting here: Adventures In Avvo - Take 1.

I just got email saying my question had been answered again, but when I took a look, it wasn't really an answer. Someone had just posted this:

hooty40

Posted about 3 hours ago.

hello my frined is in jail now and he nneds to get out now you can call me @ 251 714 xxxx

I've obfuscated the phone number, but the actual post has this person's full number, 'cause, you know, how else would you get in touch with him to help?

It probably doesn't help matters that my question gives the location as Chicago, Illinois, but the 251 area code is for southwestern Alabama. I feel bad for the poor bastard who's depending on his pal Hooty to get him out of jail.

I decided to help out a bit. Avvo doesn't cover Alabama, so I used FindLaw and guessed that Hooty was in Mobile (simply because it looks like the biggest city), found the first lawyer who offered free consultations and an online contact form, and copied Hooty's pitiful cry for help into the form.

Who knows? Maybe Hooty can't write English but he's got enough money to afford a lawyer. It could happen.

I've been posting about my attempt to get an answer to a simple question using Avvo Answers. In Take 1, an out-of-state lawyer provided a wrong answer. In Take 2, our own Jeremy Richey provided a good answer that missed a part of the question. I clarified my question, and now Jeremy has provided the final answer in a comment to Take 2.

My clarified question was:

If the bond is $1000/10%, that means I only had to pay $100 to get the person out. I'll lose that. But what happens to the other 90% of the bond? Is it entirely a fictional amount that never materializes? Or could someone have to cough it up? In other words, if I post $100 on a $1000/10% bond, and then the defendant skips, am I just out the $100, or am I out the whole $1000?

Jeremy's response nails it:

Out of some curiosity about how bail works, I posted a question on Avvo Answers. The first answer I got was a clean miss by an out-of-state lawyer. Now Illinois's own Jeremy Richey has stepped up.

To review, here's the question I asked:

What's my exposure if I bail someone out of jail?

Chicago, IL Viewed 4 times. Posted about 17 hours ago in Criminal Defense

If a friend has been arrested, it's my understanding that I can get them out by paying 10% of their bail to the court. I assume I'd lose that money if they don't show up to court. Do I get it back if they do? If they don't show up, am I responsible beyond the 10%, financially or otherwise? If it matters, assume I can't trust my friend's family with the money and want to deal with the court directly--i.e. I don't just want to loan them the money.

And here's Jeremy's answer:

Illinois did away with bail bondsmen, so don't worry about what my out-of-state colleague wrote. The 10% rule is pretty easy. For example, if bond is set at $1,000/10%, then it will cost $100 to bond the person out. This money is paid directly to the sheriff's department or police department holding the person. There will also be a small sheriff's fee.

As a practical matter, you probably will never see your money again. The court will likely take the bond money and apply it to the person's fines when his case is over. If he fails to show up for court, his bond could be forfeited. Never pay a person's bond unless you never want to see your money again.

Good luck.

Short, simple, polite, and correct.

Well, I'm assuming it's correct. With my meager non-lawyer knowledge of the law, I can't really tell. Which is an improvement over the previous answer, which was clearly wrong.

I have a few comments about this answer. Let's look at that last paragraph in a little more detail:

As a practical matter, you probably will never see your money again. The court will likely take the bond money and apply it to the person's fines when his case is over.

Aw, cheer up, Jeremy. Every once in a while someone is found not guilty.

Aren't they?

If he fails to show up for court, his bond could be forfeited.

What exactly does that mean? It appears Jeremy has missed the part of my question where I ask "If they don't show up, am I responsible beyond the 10%, financially or otherwise?" Perhaps my concerns are so non-sensical that he has no idea what I'm asking.

Let me try again: If the bond is $1000/10%, that means I only had to pay $100 to get the person out. I'll lose that. But what happens to the other 90% of the bond? Is it entirely a fictional amount that never materializes? Or could someone have to cough it up? In other words, if I post $100 on a $1000/10% bond, and then the defendant skips, am I just out the $100, or am I out the whole $1000?

Never pay a person's bond unless you never want to see your money again.

That much, I had figured out.

I approved Jeremy's answer, but I'll post again if anyone else answers the question.

Update: Adventures In Avvo - Take 3

After a recent episode of Raising the Bar, I've been wondering if some do-gooder could go around bailing indigent people out of jail so they can go home to their families even though they don't have $500. Not that I could afford to do that, but how would that work? I know it only takes a fraction of the bail amount to get them out, but would I be on the hook for the whole amount if they skipped their court appearances?

I tried Googling around for the answer, but couldn't find anything useful. I'd have to ask a lawyer. The problem is, I don't really know any criminal lawyers in Illinois who will answer my stupid questions for free.

Or do I? Isn't this what Avvo Answers is all about? You ask a question, and a real lawyer answers it.

Scott Greenfield is always bashing Avvo Answers, saying that legal problems are rarely simple enough for this kind of treatment. The questions lack the detail that a lawyer would need to give a good answer. You really need to have a conversation.

I'm skeptical. Scott worries a lot about anything that smacks of lawyer marketing. Besides, aren't lawyers supposed to be smart professionals? Shouldn't they know better than to fill in too many blanks with guesswork? Isn't giving careful answers part of their skillset?

I guess it was time to find out. I posted the following question:

What's my exposure if I bail someone out of jail?

Chicago, IL Viewed 4 times. Posted about 17 hours ago in Criminal Defense

If a friend has been arrested, it's my understanding that I can get them out by paying 10% of their bail to the court. I assume I'd lose that money if they don't show up to court. Do I get it back if they do? If they don't show up, am I responsible beyond the 10%, financially or otherwise? If it matters, assume I can't trust my friend's family with the money and want to deal with the court directly--i.e. I don't just want to loan them the money.

That was yesterday. Today someone posted a response. See if you can spot any problems:

The 10% you pay to a bondsman is the price you pay for them to put up the rest of the money. Even if your friend makes each and every court appearance, at the end of the case, that money you paid is gone. That's the bond company's fee.

If your friend skips bail, then the bonds company revokes his bond and they send bounty hunters out for him. If you signed a contract to be responsible, you could be on the hook for any costs they incur for tracking your friend down.

The other option is to put up a cash bond or property bond directly with the court. If you post the entire amount with the court and your friend makes all appearances, then you get all your money back at the end of the case. Of course, if your friend skips, you lose whatever you put up.

This guy is a "Level 7 Contributor" on Avvo. He got his license 13 years ago and now does 80% criminal defense work. His Avvo rating is 9.5 out of 10. I think his answer is well-written, concise, and thorough.

I have only one question for him: What is this "bond company" of which you speak? Is that like the bail-bond outfit that Dog the Bounty Hunter works for? Fascinating. We don't have those here in Illinois.

In Illinois, private bail bond services are not allowed. You have to make your arrangement directly with the court. I guess the lawyer who answered the question was unaware of this, probably because he's in California.

Wow. Right out of the gate---first answer to my first question. I'm beginning to understand what Scott Greenfield is complaining about.

Next contestant please?

Update: An earlier version of this post had a typo that indicated the lawyer got his license 30 years ago instead of 13.

Update: Got a better answer: Adventures in Avvo - Take 2

I'm continuing my search for a half-way decent Chicago-themed criminal defense blog. The standard isn't that high. I'm not looking for a national-quality crimlaw blogger with a huge following and tons of great articles. You just have to blog criminal defense better than me, and I'm not a lawyer.

In a comment to my previous post, Jamie pointed out that Pete Guither of Drug WarRant covers criminal issues even more than I do. Pete's actually down in Normal, Illinois, but I suppose 120 miles doesn't seem very far to a Texan like Jamie. And Pete does cover some Chicago issues. Drug WarRant is also a terrific blog. If you even suspect that the War on Drugs might not be a good social policy, check it out.

Mark Bennett points out the Chicago Criminal Defense Attorneys blog, where blogger James Dimeas publishes a summary of a news story every few days. He expresses few opinions and gets few comments, but it is a blog of sorts.

Then there's the confusing case of Kent Dean. When I first saw a reference to this blog, I thought he was the Kent Dean, as in the Dean of the Chicago-Kent College of Law. But that's not the really confusing part. His "Blog" isn't a blog at all.

Actually, his blog page has two parts. The bottom looks like a feed of recent case summaries pulled from FindLaw. This is clearly search engine fodder.

But the top of the "blog" page includes seven pretty decent "posts." I used quotes because they aren't real posts. They have no timestamps, no signature lines, no permalinks, no feeds, and no place for comments. There's no way to join the conversation. Without permalinks, I can't even link to one of the posts. In fact, I don't think this "blog" was produced by any kind of blogging software at all. This part is just static text.

What else? The Expired Meter isn't a criminal defense blog, but it does cover the most common of all criminal legal problems: Parking Tickets. Warning! Chicago city stickers must be attached today!

Thomas C. Brandstrader at Chicago Criminal Defense has a bloggy looking site, with three posts from January. Two of them are okay.

But wait! What's this? Kent Dean has another blog. It's not the one linked to from the menu on his business site, but a real Wordpress blog. He's got some tacky links to his business site, linking terms like "Chicago" and "criminal defense" to try to gain some search engine juice, but his posts seem like the real thing. Check this out:

While the underground economy in general grows in any society during times of economic stress, I'm not so sure that directly translates into more business for me. I'm not alone in the belief that regular people don't just wake up one day and embark on a life of crime due to new financial difficulties. I think it's more likely that most thieves (which is who we are talking about) go about it as a vocation. In other words, theft is their job, they have been doing it for years regardless of their current financial situation or other employment. What seems more likely, and some law enforcement friends of mine have suggested, is that regular people under financial strain are now more likely to purchase goods of questionable origin. The result being that there is more demand for hot goods and the professional thieves, burglars, pilferers and shoplifters just increase their activity in response. I think it's more appropriate to consider the recent parallel increase in parking and ordinance enforcement by municipalities throughout Cook County as a parallel development.

That's part of a perfectly good blog post. Maybe he should keep it up. Even the video ad on his business page doesn't entirely disqualify him. I can't tell if he actually knows what he's writing about---maybe someone else can check him out (hint)---but I'll keep an eye on this one.

Before I go, here are a couple of strange things I found along the way.

Check out Pissetzky & Berliner's techno video ad for their criminal defense work. Once you've seen the first 10 seconds, you've seen it all.

Also be sure to check out the FAQ page for Jerald Novak & Associates, which still warns you that refusing a breath test could lead to your Illinois license being suspended by the Department of Motor Vehicles, even though Illinois doesn't have a Department of Motor Vehicles. (That would be the Driver's Services Department.) For all I know, Jerald Novak is a great lawyer, but he obviously hasn't read his own website. When you outsource your marketing, you outsource your legal knowledge to a website designer.

The other day I was once again lamenting the state of Chicago criminal defense bloggers---which is, basically, as I've complained before, that there aren't any---when I had a shocking revelation: There is, in fact, one person in Chicago blogging about criminal defense issues: Me. Thus, by default, I, Windypundit, am The Greatest Criminal Defense Blogger in Chicago.

Really. And I'm not even a lawyer. That's how bad it is around here.

You think I'm wrong? Then who will stand against me? It wouldn't take much.

Rob Deters at the terrifically-named 26th St Bar Association was only a young lawyer just starting out with Albukerk and Associates, but he easily held the title of Greatest Criminal Defense Blogger in Chicago until he vanished from the scene in January with a post containing the immortal words "So, I'm going to be consistently posting, don't worry!"

Steven F. Molo, editor of Your Witness: Lessons on Cross-Examination and Life From Great Chicago Trial Lawyers, has the local stature and visibility, but his publicist's fake blog consisted entirely of quotes from the book, so it doesn't count.

A little searching turns up a LexBlog blog by Denise Nalley called the Chicago Criminal Law Journal. I mentioned her last time when she showed up in a search but didn't actually have a blog. She's got a blog now, and it looks like a real one: Each of her posts ties to a news story, but all her posts seem to be original content...all five of them, the last one in March. It's a pity, she writes pretty well---a little stilted, perhaps, but if she kept it up she probably would have found her voice.

Last time I mentioned that Denise Nalley's office website used to have text passages in common with the website of local lawyer Michael J. Petro, and a commenter accused her (or, more likely, her website designer) of ripping off Petro, but it all looks different now.

Petro, by the way, publishes a weekly summary of 7th Circuit criminal law decisions. It's probably interesting to criminal lawyers, but it's not really a blog.

Speaking of people we've seen before, it's been over a year, and Anthony W. Hill's alleged blogging attempt has never materialized. The page is gone.

A Google search for "Chicago criminal defense blog" turns up a bunch of LexBlog links to Denise Nalley (nice SEO work, Kevin), then the Criminal Defense Chicago Blog which is one of those fake portal sites, and then my own post pleading for more Chicago criminal defense bloggers.

The ABA Journal blawg directory for Illinois lists 75 blogs (including Windypundit), but of course it's state-wide and most of the blogs are about civil law---personal injury, business, and divorce. The Cook County Public Defenders Blog sounds promising, but it's mostly about the goings on within the Cook County Public Defenders Association, including contract negotiations and misunderstandings over mileage reimbursements.

Really, when it comes to original commentary and participation in the conversation of the blogosphere, I think I've got them all beat.

That's just so sad. Somebody please prove me wrong.

[Note: Technically, a couple of the Volokh Conspiracy contributors are located here in the windy city, which would probably make one of them the Greatest Criminal Defense Blogger In Chicago, but do any of them really identify themselves as Chicago legal bloggers? I mean, really, without checking their bio pages, can any of you name them?]

I'm probably being unfair, but it seems like Supreme Court Justice Clarence Thomas is a bit of a dumbass. (Or maybe, as fair Jennifer says, we should have listened to Anita Hill.) That's really the only way to account for his explanation of why it was okay for a school principal to order a strip search of a 13-year-old girl to try to find some ibuprofen.

Thomas was the only Justice that thought this was okay. There are a number of ways he might have tried to justify his opinion---stare decisis, in loco parentis---and for all I know, he used them. But this is just plain stupid:

In this case, officials had searched the girl's backpack and found nothing, Thomas said. "It was eminently reasonable to conclude the backpack was empty because Redding was secreting the pills in a place she thought no one would look," he said.

I think that's what mathematicians derisively call proof by ignorance: It must be true because I can't think of any other possiblies.

In the unlikely even I ever meet Justice Thomas, I'm going to accuse him of smuggling crystal meth in his rectum. By his own logic, he ought to let me check, right?

(I know there's more to it than that, but the stupidity here just pisses me off.)

Thomas adds this:

Thomas warned that the majority's decision could backfire. "Redding would not have been the first person to conceal pills in her undergarments," he said. "Nor will she be the last after today's decision, which announces the safest place to secrete contraband in school."

"Nor will she be the last"? What the fuck? They did search her underwear, and she didn't have any drugs. I always assumed Thomas just looked like he was sleeping during oral arguments, or that he was bored because he'd already read it all in the briefs, but maybe he's really just not paying attention.

It's also a question of values. If the cost of keeping dickheaded school administrators from looking in little girls' underwear is that a little more contraband gets into our schools, I, for one, am okay with that.

Illinois's own Jeremy Richey does some actual journalism and interviews California civil attorney Brian Pedigo about his experience as a juror for a murder trial. He talks about deliberations, and what he thinks each side did wrong or right.

By the way, he has one piece of advice for the prosecutor that I'd like to second if I'm ever on a jury again:

When handling a firearm, do not point it at the jury -- have gun manners.  Point it always at the ground, even though it's unloaded. 

Yeah. It may give us jurors a sense of what it was like to be the victim, but it's also going to give me a sense that you're an irresponsible jackass.

There's actually some lessons to be learned from this; I'm figuring that Kevin Ecker will be first to point them out . . . after all, he's got a head start.  He's heard the story.

Maybe you can, too, but I gotta tell you the story, first.

I was running over to meet a guy to buy a gun. Private sale. Since he's not an idiot, he wanted a copy of my DL and permit, just to adhere to the forms.

Perfectly reasonable.

So I had a xerox of both in my front shirt pocket, wrapped around $400 in cash. I got a call from my younger daughter's school about some... issues that are going on.  Some other time.

I was so distracted by that phone call that I didn't notice that I'd let my speed creep up to a tad over the legal limit, until I noticed the flashing lights.

Shit.

So I promptly found a safe place to pull over, and did just that. T

he cop -- never mind quite which agency; I've got my reasons -- comes up to the window, and asks for my D/L, proof of insurance and... "...do you have any firearms on you?"

I answered, as I read somewhere that a guy should, "My carry permit and drivers license are in my left hip pocket, Officer; and, yes, I'm carrying today." Oh.

"And where is the firearm?"

This is embarrassing, but I do have an excuse. Some other time. "Shoulder holster."

"Do me a favor, sir, and step out of the car." He didn't sound like it was really a favor, so I did, and pocketed the keys, closing and locking the door behind me quite appropriately.

He didn't ask about that.

Instead. "I need to see your license and carry permit." Which was just as well, for reasons I'm not going to go into, about where some people put their insurance cards. 

What I should have said: "Sure. It's in my left hip pocket. Would you like me to take it out?"

What I said. "Sure. I've got a copy of both in my shirt pocket. Would you like to see that?"

I think he liked the idea that I wasn't going to be reaching anywhere, so he said that that would do, and I took out the piece of paper, and started to hand to him.

You see where this is going?

Well, so did I.

I was just about to hand a cop a piece of paper wrapped around twenty twenty-dollar bills, and it was a bit too late to withdraw the offer.

So I explained, with a fair amount of stuttering, I think, that, yes, there was some money in there, but I wasn't offering him either a bribe or a tip, just so there wasn't going to be any misunderstanding.

"And where were you going with a copy of your permit wrapped around $400?"

The gun store, I said, more or less accurately.

Well, when he took the piece of paper either I let go too soon or he grabbed at it too late, and the money started flying all over the place . . .

So, with the money flying all around, he dashes for it, and after a couple of seconds, I figure that it's okay if I help -- if he was worried I was going to, like shoot him in the back or go all stabbity, he probably wouldn't have turned his back to me -- and since it's not all that windy, he and I (mainly him; he's younger and moves faster) quickly gather it up and hands what he's got to me, and no guns, knives, tasers, nor clubs come out.

"Better count it, and make sure we didn't miss any." He glances down at the piece of paper, and frowns. "...Mr. Rosenberg. I wouldn't want you, of all people, to think that some money's missing."

Just as I'm thinking this is about to get bad, he smiles, and it's a friendly smile.

So we both count out the money -- and it's all there, and we're in front of his cruiser, so if there's a camera running, it's all on the record, and we both announce the amount, and it's the same $400 that it should be-- and he hands it back to me and suggests that I tuck it away, which I do.

"Just wait here a minute, while I run this," he says, waving the paper. He sort of glances at me, as though he was going to ask me to produce the DL --  they can swipe them, rather than type stuff in -- but then he goes back to his car, and I just wait over to the side of the road, smoking a cigarette.

Very intently.

A couple of minutes (which didn't feel like minutes, but the cigarette timed them), he comes back, and we move around to the side of the car.

"You're fine, Mr. Rosenberg," he says, and then smiles. "Guess if you had any warrants on you, the Gang Strike Force would have kicked in your door yesterday, after all."

Oh, goodie.  I think that was a figure of speech.  Really.

"I'm just going to give you an 'advisory', Mr. Rosenberg. Watch the phone stuff when you're speeding."

Yes, he said, watch the phone stuff when you're speeding.

And he sort of cocked his head to one side, and was clearly making a decision, and then he made it, and he said, "you know, there's some of us jackbooted thugs," this is a phrase I use, but to describe a certain kind of bad cop, not as a generic, "who believe in all ten of the Amendments -- "

I did not correct him and point out that there's more; that's just the Bill of Rights. Didn't even think of it until later, and I'm not always a stickler for details.

" -- to the US Constitution. You seem to," he said, handing the paper back to me, "work the First and Second pretty hard, and that's just fine."  There are ways to say it that mean and there's nothing I can do about it, but I'd like to.  He said it the other way.

I didn't quite know what to say, but I think something like thank you came out of my mouth.

"You drive safe, Joel," he said. 

And he stuck out a hand, and I shook it, and he went his way, and I went mine. Afterthought:  I guess it's possible that he knew who I was when he pulled me over, but I was driving SWMBO's car; the War Wagon was getting its a/c worked on that day.

As a friend pointed out to me, a bit later, when we were discussing this, the reason that I didn't find it offensive for him to first-name me is that he was doing it as a human sort of thing -- he'd already been formal, and was saying that as one guy to another, not a cop talking down to a "civilian," as he wasn't.

Yeah, I like cops. Some cops. I like this guy.

Not vouching for him on other stuff, but, hey, yeah, I've got a soft spot in my heart and head for cops who cut a guy a break when they don't have to. 

He could have written me, and he didn't, and I'm not about to don tactical kneepads, and all, but, hey, I like the guy.  And if the story ends a bit anticlimactically, hey, I didn't write the script, and don't mind that at all.

What can we learn from this? 

A lot, I think.  Over to you.

The Supreme Court's decision in Kansas v. Ventris is one of the strangest things I've seen from them in a long time.

I'm not a lawyer, but as I understand the law, it has been normal procedure for many years that once a defendant invokes his right to a lawyer, the cops have to stop questioning him. From that moment forward---all the way to end of the trial if need be----neither the prosecution nor the cops can ask him any more questions. If they do, the answers can't be used in court.

The prohibition applies as well to agents of the police. If the defendant confesses to a snitch, the snitch can testify, but if the police send a snitch to question the defendant, he can't testify to the defendant's confession because he was acting as an agent of the police.

Until now. In Ventris, the Court carved out an exception to the rule. Basically, they said that if the defendant testifies on his own behalf, a defendant's prior contradictory statements to an agent can still be introduce at trial even if the statements were made after invoking the right to counsel. The ruling doesn't seem to be limited to agents of the police, either. It looks like the police can question the defendant directly, despite his asking for a lawyer.

The court's reasoning demonstrates Scalia's boundless trust in police professionalism:

On the other side of the scale, preventing impeachment use of statements taken in violation of Massiah would add little appreciable deterrence. Officers have significant incentive to ensure that they and their informants comply with the Constitution's demands, since statements lawfully obtained can be used for all purposes rather than simply for impeachment. And the ex ante probability that evidence gained in violation of Massiah would be of use for impeachment is exceedingly small.

(See Radley Balko's continuing series of anecdotes about Scalia's new Police Professionalism.)

Scott Greenfield had some choice words about it yesterday:

Again, the reasoning is so strained as to require a few moments of reflection.  Since statements lawfully obtained can be used for any purpose, cops have a strong incentive to comply with the Constitution, and therefore have no incentive to violate the Constitution by doing precisely what they did here.  Of course, they did precisely what they did here, so apparently they have enough of an incentive to do it, as proven by the fact that they did it.  

Aside from the fact that it happened, a possibility Scalia calls "exceedingly small,"  the Court ignores the "incentive" structure when the defendant has a lawyer and the time to obtain a confession lawfully has come and gone.  At that point, the only potential for nailing the sucker is by violating Massiah, which is exactly what they did.  Moreover, when the defense seems awfully clear that it's going to be two defendants pointing fingers at each other as the shooter, the "exceedingly small" chance that the defendant will testify becomes exceeding large.

For a guy who talks so much about incentives, Scalia is remarkably daft. Sure, police would rather get a statement from the defendant that can be used for all purposes, but that just means the police want to get in as many questions as possible before the defendant realizes he should lawyer up.

Once that happens, "all purpose" statements are off the table, but the Ventris decision now allows them to gather additional special purpose statements---even though they're violating the defendant's rights---with no penalty whatsoever. It's easy to see what that's an incentive for. How long will it be before it becomes standard procedure?

When the defendant asks for a lawyer, the police will simply keep questioning him in the hope he'll say something they can hang him for if he testifies. I'm imagine they'll call it "proceeding to the Ventris interview." Or if a prosecutor thinks a defendant is preparing to take the stand, he can send an investigator to "try to get a Ventris statement." You know it's coming.

Amazingly, an even stronger criticism of Ventris comes from a prosecutor. As a criminal defense lawyer, Ken Lammers was never a true believer, and now that he's switched sides, he once again shows he's still his own man with his withering argument that Ventris is not just bad for defendants' rights, it's badly wrong.

Here are a few excerpts:

...As the Court acknowledges that violation of this right precludes the use of the evidence gained in a prosecutor's trial in chief, this evidence couldn't even be used in a perjury trial. Thus, the Court creates an exception, allowing criminal procedure alone to trump a constitutional right.

...That's correct, a US Supreme Court decision is based on a belief that it is unlikely that the defendant will testify. It's backed up by a statement that shows an amazing lack of understanding of why a statement would be taken by a police officer. The exact purpose that an officer would be taking a statement after the defendant has an attorney is to lock him into a particular version of the facts with the thought that the defendant could tell a different story at trial. After all, if the officer expected the defendant to take the stand and testify exactly in the manner most likely to lead to a conviction, why would he waste time trying to get a statement from the defendant?

Ken's whole takedown of Ventris is logical, clear, and well worth reading.

In other news, Supreme Court Justice David Souter has announced his retirement, and speculation has begun as to his replacement.

I hearby nominate CrimLaw blogger Ken Lammers. His even-handed approach and clear writing style should make for some good opinions, and more importantly, the Supreme Court clearly needs more justices who have experience practicing criminal law.

Besides, as George W. Bush's nomination of Harriet Miers showed, the Supreme Court is not just for mental giants anymore.

(Alternate title: The Return of Mumbles)

I'm taking another shot at videoblogging. This is just a random story about some legal stuff on the web.

(This was supposed to go up yesterday morning, but I had technical difficulties.)

Here are some of the links mentioned:

• Gary's review of Dollhouse.
• Joel's story about his daughter.
• Million-dollar legal advice.
• Just Cause Law Collective.
• Findlaw.
• Avvo.

Thank you for indulging my behavior.

Blawg Review #199 is up at Mark Bennett's Defending People and Oh My God the very first link is to one of my posts. I hope I didn't write anything stupid in there.

Once again, I offer another crazy idea for reforming the justice system...

A few days ago, Shawn Matlock wrote a Top Ten list of causes of Jury Anxiety which Ken Lammers commented on yesterday. I've served on two juries, one civil and one criminal, and both of these lists seemed reasonable, but they tended to miss one of the key causes of anxiety and confusion that I had observed. I was thinking of writing a post about it, but fortunately Ken Lammers beat me to it:

"Keep them in the dark, shovel a bunch of facts at them, and then tell them which parts they should have been listening for." This is the basic way every jurisdiction I know of treats juries.

We give jurors some very basic instructions at the beginning (mostly about not talking to anybody about the case until all the evidence is in) and tell them what the defendant is charged with, but we don't tell them what to look for.

That's exactly the problem I was concerned about. In both cases I served for, testimony was over in a day, so when we finally received instructions at the end, it wasn't too hard to relate it back to what we heard. But if either of these cases had been a complex trial with a week or two of testimony, it would be mind-boggling to sort it all out at the end.

Ken's solution is to explain the elements of the crime more thoroughly at the beginning:

What needs to be done is to read the charging instructions to the jury at the beginning of trial. Heck, give them a copy of the instructions at the beginning of the trial. And, I mean before even the voir dire. As they walk into the jury room prior to the trial, give them one sheet naming everything the defendant is charged with. Then, for each type of charge, give an instruction on the elements which must be proven. This would give the jurors a sense of focus, letting them know what they should be looking for.

That sounds like a good idea to me. Ken calls this giving the jury a torch so they can see the way. I'm not sure I like that metaphor. I think this is more like giving the jurors a guidebook to a museum, telling them what the exhibits will be, what details to look for, and why they're important.

I'd go even further, and give the juries a guide along the way. Let the lawyers make parts of their argument to the jurors during the testimony phase. E.g. "Officer Reyes has testified that he was that he was on duty, wearing his police uniform, and driving a police car, and that he observed the defendent commit a traffic violation. Whatever else happens, I think this establishes the element of the crime that the victim was a police officer performing an official duty, and that the defendant was aware of this fact."

You could argue that this risks confusing the testimony with the lawyers' argument but I think there's a pretty good chance of that anyway under the current system. By putting the arguments right after the testimony, the jurors would have an easier time checking the argument against what the witness actually said. (Although, human memory is a strange thing.)

Besides, as I understand the process, lawyers do this all the time anyway by sneaking their arguments into the trial. They prep their witnesses to emphasize the important points, and then the re-ask the same question five different ways to drive it home for the jury. With opposing witnesses, they front-load their leading questions with massive chunks of their theory of the case. It would be more honest, simpler, and probably faster if the lawyer could just ask a simple question, listen to the answer, and then stop and turn to the jury and say something like, "That last point was really important because it shows who brought the weapon to the crime scene."

Not being a lawyer, I could easily be missing a number of reasons why this might be a bad idea. And just because it would make the jurors' job easier doesn't mean it makes for a better trial. Making the jurors' job easier is not the purpose of a trial.

Still, it seems like something worth trying. Perhaps courts could test it out in civil trials. They typically have a more flexible format than criminal trials, and lawyers often agree to shortcutting the process (e.g. stipulating to massive amounts of uncontroverted facts) to save time and money. If it works, criminal courts could give it a shot. Maybe then jurors would have a little easier time finding their way to a verdict.

Greenfield sighed.  He had been reading the discussion over at Simple Justice about the attorney's ethical role in discussing taking a plea, mainly as a way to avoid getting back to thinking about what he was going to say to his own client about the plea offer; the guy was due in the office at the top of the hour.

Damn.  Double damn. 

Damn.  It didn't look good, mind you, but, then again, how often did it?  He flipped through the file again, as though he hadn't committed it to memory.  He hated this.

He sat back in his chair and took another sip of coffee, hoping that it would clarify things for him.  It didn't. 

He had about two hours to figure it out; his guy was not exactly a demon for punctuality.  If he had been, well, he wouldn't have been in this trouble, in the first place -- he would have caught the train on time, and not just missed and, and while he was waiting for the next one, struck up a conversation with what he'd thought was a hooker, but turned out to be an undercover cop.  Turns out the difference was kind of important.  

Trying to arrange a commerical quickie while carrying a backpack containing three pounds of barely-stepped-on cocaine wasn't a bright thing to do in the first place, of course, but as a wise man once said, the prisons weren't exactly filled with Lex Luthors.

Not that it mattered much. Oh, if it went to trial, he'd give it all he had, but it didn't look --

That's when the genie appeared, in a puff of smoke.

As usual.  The nosmoking ordinances didn't apply to genies, apparently; he was, again as usual, puffing on a preposterously large Monte Cristo.

"Hello, Scott," the genie said, as usual.

"Mark."  You'd think a genie could at least remember first names.  "I'm Mark Greenfield. Scott Greenfield's a different guy. You could look it up."

The genie shrugged.  "Sorry; I always get the Jewish lawyers confused.  You get yourself locked in a lamp for a couple of thousand years, and if you come out only having a little trouble with names, consider yourself lucky."

"Fair enough."  Greenfield tapped at the file folder in front of him.  "I guess I know what this is about."

"Yup."  The genie nodded.  "It's the usual thing, just like the last five times.  I'm going to tell you how it all turns out."

"Okay," Greenfield said.  "How bad?  Or how good?"

"Bad?  You've got the plea offer in front of you.  Five years isn't anything to sneeze at, given the weight.  Good?  If your guy goes to trial, you win.  Turns out that between now and the trial, some crooked cop is going to substitute corn starch for the coke.  Which gets your guy off of everything except the solicitation charge.  Time served."

He could suck that up.

"So to speak," the genie said, his annoying habit of mindreading still intact.  "Possession of a condiment isn't a felony, and -- "

"And my guy wasn't even trying to sell it."

"Yeah."  His mind was already racing.  All he had to do --

"Not so fast, Mark."  The genie shook his head.  "The coke's still in the evidence locker; it hasn't gotten substituted yet.  It happens, well, just in time.  But you know the rules."

Yeah.  He knew the rules.  Not that it mattered much.  What was he going to tell the client?  That a genie had appeared in a puff of smoke and told him that if they went to trial, the guy would get off?  That this had happened five times before, and that of that, the two times that he had gone to trial, the genie had been right?  And that the three times that he hadn't, he'd later learned that they would have won? 

Didn't matter.  He couldn't say it.  He couldn't write it down; he couldn't sing it.

The genie grinned.  "Nope.  That's part of the deal.  You can tell him whatever you want, except the truth:  that a genie came and told you that if he goes to trial a minor miracle happens, and he walks."

Shit. 

There were times when it would have been easy to throw ethics out the window.  Too bad today wasn't the day he'd decided to do it.  As a practical matter, it would have been child's play to persuade the client to go for the trial. 

Hell, he wouldn't even have to lie.  Just tell the truth, or any of a number of truths:  that the prosecution never, ever got a nasty surprise at trial -- one that could shatter their entire case -- if the defendant pleaded out; that witnesses had been known to screw up on the stand, that cops about to testify had been indicted on other matters just before a trial opened, destroying their credibility; that evidence had been lost or --

"Easy there," the genie said.  "You can't go much further than that."

"Shh."

There were times when ethics sucked, and this was one of them.  Dammit, he didn't have the right to make the decision for the guy, even though he knew what decision his client would make, if he knew everything that Greenfield did, and that was the problem now, every bit as much as it would have been if the damn genie --

"Hey!"

"Sorry, but not much."

The genie sniffed. "Well, I guess that's my own fault.  Take care, Scott."

"Mark."

"Whatever.  See you next time around."  The genie disappeared in a puff of smoke.  Monte Cristo smoke.

Greenfield sat back and thought about it.  His own interests didn't matter, but that didn't mean that he could pretend he wasn't aware of them.  Winning cases in court not only felt better than getting a good plea, it was better for him than getting a good plea, and not just because of the trial fee.  Best thing for a practice was winning, after all; word got around.

Okay; he'd come clean with himself, so now he could put that aside.  The clear benefit, in this case, was for the client to go to trial.  Walking out of the court was better for him than five years in prison, after all.

But . . . but, dammit, it was still the client's decision, not his, and he had little more right to push him this time than he usually did. 

After all, dammit, some of the time -- much of the time -- he was close to this sure how it would all turn out.  Sure, you couldn't win by pleading guilty, but one hell of a lot of the time, you couldn't win at trial.  A lot of the time -- hell, most of it -- the evidence didn't fall apart; and even when it did, the jury often didn't care, as all they really needed to know is that the guy was the defendant; the witnesses would lie their heads off, but they were believed anyway; a bogus ID would somehow solidify when the witness only had to point to the person sitting next to defense counsel, and there were all the other zillion ways that a trial could go inexorably to a sentence, with the finding of guilty just a stop along the way . . .

And . . .

Okay.  Screw it.  This time, he wouldn't play it down the middle.  Fair, but not down the middle.  He'd tell his guy all the way things could go wrong, but he'd let himself show some excitement when he talked about all the ways that things could go right. 

Because they could, and this time he knew that they would.

#

Greenfield was eyeing the level in the bottle of Old Grouse when the genie appeared, again in a puff of smoke.

"You son of a bitch," he said.

The genie smiled.  "You mean, that the coke turned out to be, well, coke?  Not like all the other times, when I didn't mislead you?"

"Yeah.  Fucker."

The genie just smiled.  "Aren't you a little old to be believing in genies?"

Or at least no worse taste than the American Bar Association, which just named their top 100 blawgs, including several of my favorites:

Defending People

Rather than using his blog to shake his fist at injustice everywhere, Mark Bennett focuses on how lawyers can make their own justice in the courtroom. He shares his philosophies through analogies and anecdotes from his Houston criminal defense practice.

Simple Justice

New York City criminal defense lawyer Scott Greenfield calls out politicians and journalists on their missteps and offers sarcastic coverage of criminal justice stories that outrage him. And the world is such that he's usually good for a couple of rants a day.

Blonde Justice

Blonde Justice, who has been at this blogging game since 2004, reports that she is back in her "dream job" as a public defender after a depressing foray into private practice. Though she hides her name and location behind a wall of pink, she otherwise doesn't hold back when she's writing about her life and her work.

I would have been on the list myself, but they dropped the Wild-Eyed Libertarian Photographer Blawger category at the last minute. Curses.

A few days ago, Scott Greenfield once again raised a topic that gets everybody talking. (How does he do it? Volume!) He does it by publishing an unedited letter from a David Hiersekorn that is critical of Scott's stance on marketing. Here's the nut 'graf:

In a nutshell, it appears that you believe you are significantly better than other attorneys, and you dislike lawyer advertising because it frustrates your ability to advertise your superiority free from other "lesser" souls making competing claims.

That seems like a dead-on summary of Scott's attitude toward lawyers who are heavily into marketing, although I am less cynical about his motivation. I think he really wants to help potential clients avoid disaster.

Back when I was in college, I worked in the university's computer center, and as each year's graduation day approached, all the student employees would start printing their resumes. It was amazing the things they claimed to know. I supervised some of them and was familiar with the student experience, so I had a pretty good idea of their skills. I was years ahead of most of them and had a lot more practical experience, but you wouldn't know that from reading their resumes. You'd figure it out if you hired them, though.

So I understand where Scott's coming from. But I'm not sure I understand what Scott wants to do about it. It's not clear to me whether he wants to tighten the rules on legal marketing, or if he is just wishing that people in his profession behaved themselves better. If the latter, he has my sympathy and encouragement. But if he wants greater regulation of the legal services market, I'm not so sure that's a good idea.

People who think that support for a free market translates into a love of big business may be surprised to learn that the great economist Adam Smith once wrote,

People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.

In every line of business, sellers find it frustrating that other sellers of the same product will try to undercut their price. Market competition is great in theory, but it's not much fun when someone else is doing it to you. All the sellers would be better off, they reason, if they could somehow put aside their competitive differences and agree not to undercut each other on price.

In other words, they'd like to form a cartel, an agreement among the various firms to limit competition. Sometimes a cartel is simply an agreement to fix prices, but it can take other forms. For example, the OPEC oil cartel sets production limits, and by limiting the supply of oil, they force buyers to bid up the price.

Cartels can also agree to allocate the market among the members. In a small town with two pizza restaurants, they can each make more money if they agree to split the town between them and not deliver to each other's territory. This makes it easier to raise prices, because people who want a pizza have no where else to go.

Our budding pizza cartel faces three major difficulties. First of all, it's against the law, so the cartel can't be created and maintained using formal contracts.

Second, in part because the lack of legal status, it's hard to keep members of the cartel from cheating: The pizza restaurants will sneak their drivers into their opponent's territory to make a little extra revenue. OPEC has huge problems with cheating: When oil prices go up, the individual producers each see a chance to make a lot of money selling extra oil, but all that oil on the market just forces the price back down.

The third problem facing any cartel is new suppliers entering the market. In our town with the pizza cartel, the high price of pizza makes it very attractive for a third restaurant to open up and undercut both of the others. That drives the cost of a pizza right back down to the free market price.

All these barriers to cartelization---illegality, cheating, and new entry---can be overcome with one ingenious strategy: Lobby the government to create the cartel for you. This solves the illegality problem directly, but it also provides a way to enforce the cartel's rules against cheaters and keep new competitors from entering the market.

Of course, the politicians and businessmen would never admit that, and they almost never create an obvious cartel. Instead, they structure the rules and barriers as a way to protect jobs by reducing ''unfair" competition (that has better prices for consumers) or, rather outrageously, as a way to protect consumers from inferior products, poorly trained personnel, and shoddy service. (To consumers eager to save money, of course, those are known as economy models, low-cost labor, and no-frills retail.)

For example, Wisconsin gas stations have managed to fix retail gasoline prices at no less than 9.2% above wholesale prices. If any station tries to sell gas cheaper, goons from the government show up to stop them.

When it comes to erecting protective barriers to entry into the market, governments are amazingly inventive. The silliest example I've heard of is the Lousiana Horticulture Commission which imposed strict licensing standards on florists. Ostensibly to protect people from bad floristry, these rules really existed to atificially limit the number of florists in the state, allowing them to raise prices.

Legal barriers to entry are not usually that outrageous. Often there is some genuine measure of consumer protection, as with licensing of medical doctors: Despite the economic cost of cartelization-through-licensing, we're probably better off allowing only licensed surgeons to perform heart surgery.

Even then, there are hints of protectionism: Sure, we need licensed physicians for major health problems, but do we really need a full-fledged doctor to remove a wart or stitch up a minor wound? (The U.S. military doesn't.) Couldn't routine medical checkups be done by someone with a lot less training than an M.D.? Similar arguments can be made for architects, interior designers, engineers, accountants, lawyers, private investigators, barbers, cosmetologists, massage therapists, and all the other licensed professions.

Barriers to entry restrict competition, harming customers, and harming competing firms that operate on different business models---usually upstart firms trying to compete in new ways.

What does all this have to do with Scott Greenfield's dislike for legal marketing? Simply put, advertising restrictions are a subtle form of cartelization. By limiting what lawyers can say to their customers, they make it harder for customers to comparison shop and harder for new lawyers to enter the market. This drives up profits for established lawyers at the expense of clients and newer lawyers.

I'm not accusing Scott of harboring ulterior motives. I'm sure he's sincere in his belief that advertising misleads clients into choosing lawyers who are inadequate for their needs. If he's right---if advertising restrictions do some good by keeping the scoundrels and asshat lawyers from promising the moon to every client---then the real question is whether the benefits of the advertising restrictions outweigh the costs of cartelization.

A good answer to that question depends on details about the lawyering business that are beyond me. My gut feeling is that advertising is good for customers of transactional lawyers, especially those providing business services. It forces the lawyers to compete on price and service, and the damage from getting a lawyer who's cheap-and-worth-it is controllable.

On the other hand, people charged with serious crimes have a lot more to lose if their lawyer screws up, so misleading marketing is more likely to harm them. We need to ask, however, if there's a better way to find lawyers, why aren't these people using it? And if we restrict lawyer advertising, how do we know these people will choose a better way to find a lawyer instead of a worse one?

So, while I sympathize with the desire for greater professionalism in law, and I hate being slimed by salesmen, I'm not sure there's anything we can do about it that would actually improve the public welfare.

But we can still mock it when we see it.

This is hard to watch, as there's stupidity all around, but I do think it's instructive.

I'm not a big fan of open carry, mind you, but I know that some folks are.  While, on balance, I prefer to be discreet, as I think there's real disadvantages to open carry, most times, most places, there are some arguments in favor of it.

1.  Bad people -- well, bad people without badges -- tend to avoid hassling people with guns visible.  When was the last time you heard about a cop with a gun visible on his hip getting mugged or being picked out for a carjacking?

2.  A right not seen to be exercised tends to go away, whether it's protesting at city hall or keeping and bearing arms.  In MN and PA -- and many, many other states -- we don't have a concealment requirement. 

3.  It's a good thing, on balance, for folks who aren't into the whole carrying guns in public thing to see, say, an African American educator, like the woman at right, or a web designer in his mid-thirties out grocery shopping with his cute little kids while carrying; helps to dispel the notion that it's just soft, middle-aged lonely guys who get carry permits.

Not my thing, mind you, but there are folks who are into it.  Like, say, Meleanie Hain.

She's a thirtyish Soccer Mom in Lebanon PA who, at her young kid's soccer games -- and everywhere she goes -- she openly carries a Glock in a good security holster on her hip.

Other folks freak. But there's nothing much they can -- or, for that matter, should -- do about it, as she has a carry permit, which in PA allows her to carry either openly or concealed; without it, she'd have to carry openly.

The sheriff, deciding that her carrying openly shows that she's dangerous, yanks her carry permit, which prohibits her from carrying discreetly, which she doesn't want to, anyway; she can carry openly without the permit. 
 
Yup.  To punish her for carrying her gun openly, he took away the permit that allows her to carry it discreetly, forcing her to carry openly, if she chooses to carry. 

I don't make this stuff up, you know. 

She heads to court; judge gives her the permit back, along with a lecture about how what she's doing is legal, it's also wrong, wrong, wrong; she can now carry openly, or concealed.

Much hysteria continues to ensue.

Hence the show, where a whole variety of people with strong opinions and little information on the issues around this assemble to argue about them. I'm glad it locks up with nine minutes to go; I don't think I could have taken any more.

Largely, it's folks arguing about hypotheticals.  In terms of what's actually happened, well, not much; there's not all that much to discuss.  She hasn't taken the gun out in public, because, well, she hasn't had to; she also hasn't rested her hand on the butt of the gun while asking a ref to reconsider a call, or the coach to put her kid in more, or anything like that, either, which isn't surprising. Some local soccer moms apparently feel that they'll be safe if they insist she stand across the field from them; they think she'll shoot them, but don't know that bullets can easily travel a couple of dozen feet.

But the best stupid hypothetical is put forward by one Sean Burke, a Massachusetts cop, Steve Rogers, a New Jersey cop.  (Yes, there's a correction there; I copied the name from the web page, not the video.  I'm very sad; I was always a great admirer of Captain America...)

Now, since Massachusetts has one of the most restrictive carry permit laws in the country -- only IL and WI are worse; NJ and NY are just about as bad -- naturally, Burke Rogers knows everything to know there is about how things work in states, like PA, which have modern, mainstream, commonsense shall issue carry permit laws.

Not because he has any experience with it, or has thought much or read anything about it, but because, well, he's got a badge and good hair.

He explains the problem: in a situation where, say, she'd taken her gun out to stop from being murdered or something, she runs a great danger of being shot by twelve -- he's sure it's twelve -- well-armed SWAT cops, who won't know who the bad guy is, but will blast away at the soccer Mom.

Yup.  Let's explore that.  It's not likely that she'll need to take her handgun out at her kid's soccer game, of course; it it was likely, she'd just not take the kid to the soccer game. 

But let's create a hypothetical, and think it through:  some machete-wielding ax murderer shows up, and after quickly chopping up another soccer mom and kid or two, starts to move toward her.  He's running faster than she can, so out comes the Glock, and instead of her having to shoot him -- honest; I'm stacking the cards against her; trust me -- he puts the machete down and lies down at the ground, where she covers him with her Glock while waiting for the local SWAT team to arrive.

Now, I don't know much about the Lebanon PA SWAT team, but let's make them a hell-for-leather bunch, who manage to get there in ten, fifteen minutes. And when they see the vaguely chubby soccer mom holding a gun on the guy lying on the ground near the machete -- perhaps fairly close to the chopped up parts of his previous victims -- they'll shoot her.

That's Officer Burke's worry.  I don't make this stuff up, you know.  Yes, that's his objection.  In a situation where she's used her gun to prevent being killed, she might get shot by a bunch of cops. 

He's just looking out for her.

Well, that didn't take long.  Among other folks queuing up for the Obamagoodies are our friends in the gun grabbing commonsense gun law movement. 

Here's a test -- and, like most tests, folks who already know the answer really shouldn't shout it out for the rest of the class.

Let's start before the beginning.

Over at Simple Justice, Scott's been known to suggest that when somebody urges a "common sense" analysis when it comes to how to treat criminals people accused, and perhaps convicted, of crimes, it's time to get skeptical. I think he's right, but I also think that it's warning sign more generally. It's not just that "common sense" is uncommon, but mainly it's that it's usually a sign that somebody's palming a card. Or a whole bloody deck.

Me, I reach for my . . . wallet. Or, in this case, some blogging software.

Let's take a look at the first of one set of these common sense proposals.

#1 Mandatory criminal background checks for all gun sales

This is what they call "closing the gun show loophole." Honest.

Now, there's no evidence -- at all; the CDC looked hard to find some, some years ago; if there is any, it's hiding better than Osama is -- that criminal background checks (or other gun control laws) actually do anything to lower violent crime, or suicide, just as there's no evidence that a course of leeches actually draws vile humours from the body, lowering mortality.

I'm not going to say that criminal background checks don't do anything useful. By encouraging felon gangbangers to get adult, non-felon girlfriends to go into a store and buy their guns for them, they do work to improve the social skills of that crowd, and is probably only a few dozen times more expensive, overall, than some sort of Federal Pickup Artist for Crips Program.

Let's back up a bit. In every state, when a federally licensed dealer sells a handgun to anybody, there's a background check through the Federal NICS system. The purchaser fills out a form, provides ID, and the dealer runs the background check through the system. Most of the time, an approval comes back in a very few minutes -- I don't think I've ever waited as many as five. Sometimes, though -- like when a convicted felon walks into the store, provides his real ID, and signs a form, subject to a five-year Federal felony conviction if he's lying -- it comes back denied. It also comes back denied -- or delayed -- if the system can't figure out if, say, it's Al Jones the convicted felon or Al Jones, the guy who has never been in trouble in his life. Most denials are in the latter category, which is one reason that the phone doesn't start ringing at the local FBI branch, and agents are not immediately (or, basically, ever) dispatched to pick up the guy who has just committed a crime and conveniently signed the confession as part of the act of committing it.

The other reason, I guess, is that'd be kind of like shooting a fish in a barrel, and the FBI likes to give 'em a chance. Or maybe not.

Back when the background check was put in, its proponents promised that it would keep lots of guns out of the hands of criminals; as I understand it, the theory was that the clever ruses of having the girlfriend buy the gun or using phony ID wouldn't occur to criminals.

Not so much, as it turns out.

In most states, though, these rules don't apply to private sales, and, sure enough, you'll find some small number of folks doing those at gun shows, in such states. Anybody who doesn't have a Federal dealer's license, and who is willing to risk the cruising BATFE agents deciding that they're actually in the business of selling guns without said license -- a naughtiness that's punishable by years in the Federal pen for each gun sold (ouch!) -- is free to rent a table and winnow their collection a bit. And some folks do.

In about a dozen and a half states, though, state law prevents that. Al wants to sell Bob his revolver, or Joel wants to give Judy a gun for her birthday? No problem -- just hustle on down to a licensed dealer -- whether that dealer is on the next table over at the gun show, or halfway across town -- and then hand over some money and the gun, and then have the dealer run the background check. Unsurprisingly, these states don't show any difference in violent crime, or suicide; equally unsurprisingly, when Alice has gone into the gun store to buy a gun for Bob, her felon boyfriend, she and Bob skip that step.

Not a big deal, either way. Criminals will still steal guns, and/or get girlfriends; law-abiding folks simply have to pay a little money, and go to a little more trouble -- not much -- to acquire guns from family, friends, and acquaintances.

I told you there'd be a test question. Here it is: So, what's the big deal?

I mean, this is a big deal. It's the first item on John Rosenthal's wishlist (and not far, if at all, behind on Sarah Brady's or Josh Sugarman's), and both major players and flickering candles like me in the RKBA movement are going to the mat on this.

So why do all of us care? Why do the gun grabbers common sense gun law folks think this is important enough to make this the first number on their hit parade? And why do folks who believe that "the right of the people to keep and bear arms" is important hate this little tweak to the law so much?

No peeking at your neighbor's homework; over to you.

You may have noticed that the last three posts were all in response to something Scott Greenfield posted over at Simple Justice. While I don't usually have enough time, it's not unusual for Scott to post three or four items I'd like to comment on.

Sometimes I think that I should start a whole separate blog dedicated to discussing whatever Scott is discussing. It could be a group blog with Joel, Mark, Susan, David, Badtux, Anne, Ken, Karl, and Gideon all contributing.

What's a good name? The Greenfield Conspiracy? The Simple Justice Roundtable? The Greenfield Report? The McGreenfield Group? Meet The Blawgers?

Who's with me?

Good writing about social issues helps you understand them clearly. Great writing about social issues shows them to you in a whole new way. Really great writing shows you important social issues where you never noticed them before.

Scott Greenfield had a really great post about a guy who didn't pay all of his restaurant bill. Here are the facts, according to the Atlanta Hournal-Constitution:

Fulton County authorities arrested 40-year-old Dan Linscomb of Texas City, Texas, last week for refusing to pay his tab at the all-you-can-eat Iron Skillet buffet in northwest Atlanta. Officials say Linscomb ate at the buffet and let his girlfriend eat from his plate.

The restaurant charged him for two $7 meals, which he refused to pay. Linscomb was taken to the Fulton County Jail on a charge of theft of service. Fulton County Sheriff's Sgt. Nikita Hightower said Linscomb was released two days later after pleading guilty to a lesser charge of disorderly conduct.

Sounds okay, doesn't it? Scott has a problem with it, however, and I find his explanation of it fascinating:

Why do police become embroiled in matters that are purely civil in nature, and why, when they do, do they invariably side with the business over the individual?

While one might question whether Linscomb's refusal to pay the tab for his girlfriend's eating off his plate was tantamount to theft, it is not. It is a civil question of whether the girlfriend's nibbling constituted an obligation to pay an additional $7. A contract question, and nothing more. Contract questions are resolved by courts in their civil capacity everyday, and the parties involved always believe they're getting the shaft rather than a bona fide dispute exists.

But when the problem arises between a business, like the Iron Skillet, and one of its patrons, Linscomb, the cops are inevitably called to the scene. Why? Because there is an inherent bias by the police to protect their local businesses from disagreements with patrons.

I never thought of that.

I had a client a few years ago who I billed for a lot of money. He disputed my bill, but he sent me a check for the amount he thought he owed. Could I have gone to the police and had him arrested for theft? Presumably not. So how come I was on my own over a $20,000 consulting bill, but a restaurant can get someone arrested over a $7 tab?

For that matter, why couldn't Linscomb swear out a fraudulent business practices complaint against the restaurant for false billing? Isn't that only fair?

I suspect the answer is in the law. Somewhere there is a paragraph in a statute (or in case law) that explicitly criminalizes this man's behavior in a restaurant. One of Scott's commenters even points out the section of New York law that does it there. [Update: Scott says the commenter missed by a mile. The facts are all wrong.]

But that only raises the question, "Why?" Why is the law written that way? Why is the state willing to let these private businesses use the justice system as a collection agency?

I'm not saying Scott's post is right, but I never really noticed this strange discrepancy in the law before, and that's why Scott's post is interesting.

Saturday, Scott Greenfield posted about the ethics of defense lawyers who make a big deal out of the fact that they used to be prosecutors and can therefore do a better job of defense.

Scott, let's say, has his doubts:

The pitch is intended to capitalize on a basic misperception by the public, that the skills one develops as a prosecutor, characterized as "experience in criminal law," translate into the skills one requires as a criminal defense lawyer.  As has been discussed ad naseum, there is no intrinsic connection between the two...

What of the ethical duty on our parts as attorneys to not mislead the public?  Knowing, as we do, that experience as a prosecutor is not the equivalent of experience as a criminal defense lawyer, is it ethical to feed into this misapprehension and exploit the public's ignorance? 

I'm not real fond of that argument. Just because Scott Greenfield says prosecutorial experience doesn't help a defense lawyer doesn't make it true, and saying it does doesn't make you a liar. Surely an ex-prosecutor who thinks his experience helped him is entitled to say so?

But Scott has a much more compelling point:

A secondary implication, which is often suggested, and sometimes overtly claimed, is that by being a former prosecutor, a criminal defense lawyer has some inside track to getting his old buddies to let him have special sweetheart deals, or that he's got some special friendships with the judges before whom he appeared day after day after day, who will do him (and therefore you, dear client) special favors that would not come your way but for his inside connections.

...

This is an outrage and affront to everything that we do.  You suggest, if not scream, to the public that the criminal justice system is overtly corrupt, a game of back-scratching where prosecutors dole out deals to friends and judges put favors above duty.  You demean what little dignity there is left to the law, and feed into the public perception that we are all engaged in one big scam on the public.  It's not what you know, but who you know.  It's not hard work, but cronyism...

To suggest that the criminal justice system, the courts, the judiciary is corrupt, and that one lawyer can exert special influence, is a disgrace.

Yeah, it is disgraceful, and it shows contempt for the legal system.

However, having lived in Chicago all my life, I'm somewhat confused by Scott's argument. Is it disgraceful to suggest that the judiciary is corrupt when, in fact, the judiciary is corrupt? (Only a few, but enough to cause trouble.) I mean, it certainly is disgraceful that the judiciary is corrupt, but is it still disgraceful to suggest it?

I guess it is this confusion that leads me to really appreciate Houston lawyer Mark Bennettt's observation about a hypothetical ex-prosecutor who says he will use his connections and influence on your behalf:

What he's saying is that he'll exploit his relationship with the judge for your sake.

This suggests that a) he is friends with the sort of people who would take a dive and violate their duties for the sake of their friendship with him; b) he is the sort of guy who would ask them to do so; and c) he thinks it's okay for a professional to take a dive. This is always a two-way street -- birds of a feather and all that.

So: the lawyer has had a relationship with the prosecutor for, say, ten years and expects to for twenty more. He has had a relationship with you for ten minutes and expects to for six more weeks.

Which relationship do you think he'll forsake for the sake of the other?

Exactly.

Although...the way Bennettt formulates his response leads me to suspect that Houston doesn't have much of a corruption problem. Otherwise he'd know that a lawyer with clout doesn't forsake relationships, he makes them. For example, he'll introduce his old friend the corrupt prosecutor to his new friend who has access to cash in small bills.

That said, I think there are two corollaries worth keeping in mind when dealing with a lawyer who has "influence":

1. If he really has significant influence over prosecutors or judges, he wouldn't have to advertise wherever you found him.
2. If he's he's for real, then by definition he's a crook, so you have no right to be surprised when you discover he's ripping you off and screwing your wife.

What I guess it comes down to is that either the guy who wants to be your lawyer is lying about his influence, or he's part of what the FBI calls a criminal enterprise. Neither of those things is very good for you.

The latest buzz in the legal blogosphere is Brian Tannebaum's e-book The Truth About Hiring a Criminal Defense Lawyer. Both Mark Bennett and Scott Greenfield like it, which tells me it's pretty good advice.

I'm not a lawyer, nor an expert at hiring one, but I took a quick look at this 28-page pamphlet myself, and it seems like a straightforward explanation of the types of lawyers you might need to hire and how to choose one who won't let you down.

Tannebaum's pamphlet is refreshingly devoid of the usual judgement-free advice you normally get on this subject. A few examples:

Unless you've been lazy or had your head buried in the sand hoping it would go away, be weary of a lawyer who pressures you to make the decision immediately.

...

If a lawyer tells you he wins all his cases, again, leave now.

...

There are good lawyers who advertise, and there are lawyers who advertise who are, well, not so good, but look good in the yellow pages or in a 4 color brochure in your mailbox. We're all "available 24 hours," and we can all write a check to the criminal lawyers association. Most of us are aggressive when we have to be, and can take a good photo.

...

"Knowing" people in the system never hurts, but no otherwise incorruptible judge is going to suppress evidence because she's friends with the lawyer, no prosecutor is going to "take a dive" in court because he's on the defense lawyers basketball team, and the most you can expect from a police officer is that because he knows the defense lawyer...he may tell the prosecutor to give you a break.

This is good and useful stuff, much better than the usual bland "how to hire a lawyer" advice you'll find on your local bar association's web site.

Read it. Learn it. Live it.

That said, however, there are a couple of paragraphs that give me pause...

Do not ever call a lawyer you are thinking of hiring and ask how much he charges. He will immediately think you are cheap, broke, and that you will waste his time in a consultation. On that note, don't ever ask if there's a consultation fee.

...

The rule of thumb (and this is my rule of thumb, not some actual rule of thumb) is that you should hire a lawyer you feel comfortable with, who charges more money than you wanted to spend.

...

Don't negotiate. You are facing jail. Do you really want your lawyer to be in the mindset that you are that client who didn't think he was worth his fee?

In sum, you're in trouble, and you need a lawyer. You need to pay for that lawyer, and you need to pay for that lawyer now. An attorney client relationship that begins with money problems is a waste of time for you, and your lawyer.

Hmm. I'm a software developer by trade, and by strange coincidence, this whole "don't negotiate" strategy is exactly what I recommend if you're hiring a software developer. Trust me, it totally works!

I'm sure hiring a defense lawyer on the cheap is a bad idea for all kinds of reasons. If nothing else, you're probably going to need a favor or two that aren't technically part of your defense---explaining the situation to your family, intervening with Family Services, calling your employer to try to talk him out of firing you because you're a criminal---and a well-paid lawyer is going to find it easier to help you out.

I'm also pretty sure that once you hire a lawyer and agree to a deal, you shouldn't go back on your word and give him a hard time with his bill. When you're in trouble this deep, your personal honor may be all you have going for you, and your relationship with your lawyer needs to be built on trust.

But I just don't believe that a plea mill lawyer who takes $2500 to defend you and does no work on your case will do anything different if you pay him $5000, and a terrific lawyer who offers to defend you for $20,000 won't throw you to the wolves if you talk him down to $18,000.

Everything is negotiable. It's just a conversation.

The bottom line is, if you are charged with a federal crime, you are probably going to go to prison. If you have been charged with a federal crime your first thought should not be whether you are going to go to trial to prove your innocence. And if you are guilty you certainly should not risk going to trial. Your first thought should be how to keep your prison sentence to the absolute minimum. Leave the question of guilt or innocence to the academics. Make sure your sentence is short enough so you can pick up the pieces when you are released.

That's from an American Chronicle piece by Geoff Mousseau. Frankly, that's long been my impression of how federal prosecution works.

Harvard celebrity law professor Alan Dershowitz kind of agrees with this assessment as well:

That is why white collar criminal lawyers are busy preparing their clients for investigations, subpoenas and flipping witnesses. The race to the courthouse has already begun, with lawyers trying to be the first to offer up their clients as witnesses against former friends and colleagues, instead of themselves becoming defendants. The race, however, is not always to the swiftest but rather to the lowest on the totem pole--the underling who can provide evidence or testimony against the higher ups. The first rule of criminality in the U.S. is "always commit crimes with people more important than you are, so that you can turn them in rather than having them turn you in!"

So, a word to the formerly wise Wall Street whiz kids. Watch out for your friends. Pick your lawyers wisely. Make sure they are representing you and you alone--not your company. And hope and pray that you are not targeted as one of the scapegoats for the mortgage meltdown.

Scott Greenfield, who does federal defense, disagrees, at least as far as Dersh's tactical advice:

Don't buy into the argument that the government can pluck anybody on the face of the earth and convict them under mail fraud.  It's not quite that bad, and it's definitely not a lost cause.  The law is ridiculously broad and vague, but that's where having a good lawyer comes in.

I sure hope Greenfield is right. But as a matter of public policy, I think we should assume the situation identified by Mousseau is (a) real, and (b) unjust.

(Hat tip: Lammers)

If you're a criminal defense lawyer or a prosecutor who likes to interpret other state's statutes or even just an ordinary person like me who's fascinated by legal stuff, I have a small challenge for you.

When I was writing the post below on some strange questions of law and morality, I read at Classically Liberal that it's illegal in Illinois for an 18-year old boy to have sex with a 17-year old girl. That sounded wrong to me, so I checked what Wikipedia and ageofconsent.com have to say, and they both agree that a 17-year old girl can consent to sex.

I was planning to include this correction in my post, but I wanted to link to a more authoritative source, so I went to the online version of the Illinois's laws. That's where I hit a snag: It appears that the Illinois Criminal Code has been written by monkeys.

I don't know what other states are like, but the people who say that ignorance of the law is no excuse have never trield to read the Illinois Compiled Statutes. I mean, really, we're supposed to understand this stuff so we can obey it, right?

So here's my challenge: Imagine you're a young man somewhere between the ages of 15 and 20 living here in Illinois. You have a girlfriend somewhere between the ages of 13 and 18. You both want to have sex, but since you plan to run for office some day, you want to make sure it's legal.

For what combinations of the age ranges I listed would it be legal to have sex in Illinois? Are there any complications or variations---family, position of authority, etc---that our young lovers should know about?

To get you started, my guess it that you want to look in chapter 720, specifically in the Criminal Code of 1961 in 720 ILCS 5. I believe the answer is in Article 11 (Sex Offenses) or Article 12 (Bodily Harm).

You won't be graded because I have no idea what the correct answer is. If you try this and come up with one, tell me how long it took you.

(If you're an actual Illinois criminal defense lawyer with actual knowlege of the right answer, hold off a day or two before posting it in case anyone else actually picks up the challenge.)

Blogs, that is.

A couple of months ago I published a review of Your Witness: Lessons on Cross-Examination and Life From Great Chicago Trial Lawyers, a fascinating collection of stories and advice about cross-examining witnesses, edited by Steven F. Molo and James R. Figliulo.

At the beginning of last month, I received an email from Molo's publicist:

Hi, I wanted to let you know about Your Witness for 30 Days, a blogging event that will provide you with snippets of wisdom straight from the new book Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers. Over the next month, you can visit http://yourwitness.wordpress.com for your daily dose of legal drama, poignant observations, and hilarious anecdotes from some of the country's top lawyers.

Sigh. If you actually click through to the site, it's a Wordpress blog with 26 quotes about cross-examination. I haven't checked, but if memory serves, each of them is pulled from the book...and I've already read the book.

This is not a blog. For one thing, a blog should be original content. Steven Molo seems like a smart guy who can write well, so if each of these quotes was followed by some commentary by Molo, I'd probably read it. That would be a blog.

Or at least that would be part of a blog, because a blog should also be a conversation. It appears that Your Witness for 30 Days is trying to have a conversation---comments are enabled---but nobody had anything to say.

Gerry Spence's blog---called Gerry Spence's Blog---goes Molo one two better, because he has original content and people are commenting on the posts (he is, after all, Gerry Spence). However, Spence isn't really blogging in the traditional sense either.

That's because, like Molo's blog, it's not really part of the blogosphere. One of the key facets of blogging that distinguishes it from writing an opinion column is that bloggers link to other bloggers. We like talking about each other. Neither of these blogs has a blogroll, and as far as I can tell, neither one has even one post that links to any other blogger.

There's nothing wrong with that, of course. If Spence wants to write a free-ranging opinion column, that's great. A lot of people seem to enjoy reading it. And if Molo (or, let's be realistic, Molo's publicist) wants to put up a promotional page for Your Witness, that's great too. It was an excellant book.

I'm not the blog police. I just wish these people had joined the conversation.

Okay, I will be the blog police about one thing: A while back, when I complained there weren't any Chicago criminal defense bloggers, I mentioned the blog of defense lawyer Anthony W. Hill, which had nothing but a test message in it. That got me an email from the guy setting up the site for Hill, saying they were testing it and would start blogging soon.

That was three months ago.

Mr. Hill, you either start blogging, or admit you don't have the guts. That's right, you heard me.

I just checked Simple Justice and it looks like Scott Greenfield hasn't posted anything new today. My God, I hope he's alright. The silence over there is frightening. Somebody in New York please check on him.

Update: Stand down. Scott's posting at last. The delay appears to have been caused because he was watching one of Ken Lammers' lengthy CLTV sagas.

As little as I know about the military, I know even less about military law. Still, this sounds wrong:

IRVINE, Calif. - A former Marine sergeant facing the first federal civilian prosecution of a military member accused of a war crime says there is much more at stake than his claim of innocence on charges that he killed unarmed detainees in Fallujah, Iraq.

...

Nazario is the first military service member who has completed his duty to be brought to trial under a law that allows the government to prosecute defense contractors, military dependents and those no longer in the military who commit crimes outside the United States.

I understand there have been incidents where American contractors committed crimes in Iraq and slipped through the cracks. As civilians, they could not be tried by the U.S. military, but due to a diplomatic agreement, the Iraqi government isn't allowed to try them either. This might be the least troublesome way to close that gap.

(On the other hand, it doesn't seem right to try people in U.S. courts for crimes they committed as civilians against people of another country while in that other country. As it is, we already have Americans convicted in America for violating Honduran fishing laws while in Honduras. This seems like another step down that dangerous road.)

I doubt, however, that it's a good idea to put members of the U.S. military on trial under this provision. We expect soldiers to do things that would be capital crimes if done outside the context of war. Our civilian courts have little experience dealing with situations like this, and the possibility of having military decisions second-guessed by a civilian court years later seems like it could cause confusion in the ranks.

Others say the law closes a loophole that allowed former military service members to slip beyond the reach of prosecution. Once they complete their terms, troops cannot be prosecuted in military court.

I know that military courts have no jurisdiction over civilians, but I was under the impression that in situations like this there were provisions to recall ex-soldiers to duty for purposes of a trial. I guess not. But it sounds like a better solution to me.

Scott Silliman, a law professor and executive director of the Center on Law, Ethics and National Security at Duke University, says it has little to do with questioning military decisions and everything to do with whether a service member committed a crime.

That seems oversimplified. If there's no difference in criminal law between military and civilian environments, then why do we have a separate military legal code and justice system? Is it just a historical oddity? Or is there something fundamentally different about military service?

I'd love to hear more about this from someone who knows a lot more than I do.

Rob at the 26th St. Bar Association has a fascinating post, at least to a non-lawyer like me, about the difficulty the state has in proving constructive possession of contraband.

What really caught my eye, however, was the description of the police raid:

The police still came in, without any information that there would be guns or possible violence, shot all three of the family's dogs (two of which were chained up and on less than four feet of leash) and tore the house apart.

This touches on two interesting Drug War issues. First, cops like to shoot your dogs, and second, cops like to break your stuff. The former has been a topic of this blog before, and the latter is the subject of a recent Eighth Circuit decision.

In United States v. Santana-Aguirre, No. 07-3706 (8th Cir. August 12, 2008) (opinion), a 2-1 panel held that when you consent to a search, you also consent to the destruction of your property.

The property in question was a bunch of cheap candles. No great loss, except of course to people who can only afford cheap candles. But it seems clear that police will be quick to apply this ruling to everything.

They can already destroy your car's spare tire under an earlier decision, but now they will be able to slice open your child's teddy bear, open all the canned goods you just bought at the grocery, or smash your laptop to pieces as part of the search.

It's not hard to imagine this will be used punitively: If some smartass gives them trouble on the street, cops will "search" his cell phone to teach him a lesson.

Maybe there's a bright side. If you tell a cop that you don't consent to a search and he comes back with "Why? Are you hiding something?" just tell him that if you gave him permission to search, then under Santana-Aguirre you'd also be giving him permission to break all your stuff, and you certainly don't want him to do that.

From a post by Eugene Volokh on the subject of Texas's inane anti-sex toy laws:

Probably no Justice accepts the libertarian constitutionalist notion that a broadranging liberty to do what one pleases so long as it doesn't directly enough hurt others is itself so important that it should be recognized as a constitutional right.

That's pretty much a one-sentence summary of everything I don't like about the Supreme Court's rulings. I realize that's not exactly a supportable theory of constitutional interpretation, but I wish they'd at least try it out for a while.

Sometimes, when I read about federal law enforcement, it seems like they have magical superpowers that allow them to blow past any need to prove guilt in a courtroom. Congress has been passing so many criminal laws, and federal criminal procedure seems so slanted, that merely being investigated by the feds is the equivalent of a guilty verdict at the state level.

I am reminded of this by a post at Simple Justice about what happens when corporations are under investigation. The government can extract all kinds of concessions without proving that anybody did anything wrong. It's not really the kind of power I want our government to have.

New York Criminal Defense Lawyer Scott Greenfield has a fascinating examination of the dismissal motion in the Lori Drew prosecution.

Drew is accused of helping her daughter set up fake MySpace page to trick a troubled young girl named Megan Meier into thinking she had made a new friend. Later, this "friend" turned mean and abusive and ultimately suggest that Megan should kill herself. Which is exactly what Megan did.

As reprehensible as Lori Drew's behavior was, she was not charged with a crime in Missouri, where all this happened, because prosecutors couldn't find a law against it.

However, a federal prosecutor in California decided to make a name for himself by charging Drew with violating the Computer Fraud and Abuse Act for violating MySpace's Terms of Service by creating a fake MySpace page.

Drew's lawyers filed a dismissal motion, and Scott Greenfield critiqued it and came up with some additional reasons why this prosecution should be dismissed. If you're interested in this issue, I strongly recommend you read Scott's post. He explains the somewhat subtle issues very clearly.

By the way, the obvious absurdity in this case---that it's based on an interpretation of criminal law that, if accepted, would make federal felons out of 95% of all computer users---is apparently not a permitted reason for dismissal.

In the Chicago Tribune, Jon Hilkevitch is writing about increased enforcement of Scott's Law:

Scott's Law, also known as the Move Over Law, requires a driver to change lanes, if it is safe to do so, or to reduce speed and proceed with caution when approaching a stopped emergency vehicle displaying flashing warning lights.

Readers who were here last year may remember that I got a ticket for breaking this law and that I wasn't very happy about how it turned out. (That means the judge convicted me.) I posted both of those stories on my blog after it was all over.

From the Tribune article again:

Violations carry a minimum $100 fine upon conviction and a maximum fine of $10,000 and a two-year license suspension if the driver contributes to a death.

Although correct, that's not quite complete. It's true enough as far as the language of the law at 625 ILCS 5/11‑907(c), which spells out the penalties as follows:

(d) A person who violates subsection (c) of this Section commits a business offense punishable by a fine of not less than $100 or more than $10,000. It is a factor in aggravation if the person [was driving drunk].

(e) If a violation of subsection (c) of this Section results in damage to the property of another person, in addition to any other penalty imposed, the person's driving privileges shall be suspended for a fixed period of not less than 90 days and not more than one year.

(f) If a violation of subsection (c) of this Section results in injury to another person, in addition to any other penalty imposed, the person's driving privileges shall be suspended for a fixed period of not less than 180 days and not more than 2 years.

(g) If a violation of subsection (c) of this Section results in the death of another person, in addition to any other penalty imposed, the person's driving privileges shall be suspended for 2 years.

I was convicted of violating section (c)---essentially, failure to yield to a stopped emergency vehicle---but there was no accident, so the enhancements in sections (d), (e), and (f) did not apply. Therefore, even though I was convicted, all I had to do was pay a fine.

That's what I thought, and my lawyer confirmed it. But like the Tribune columnist, we had all missed something.

A few weeks later, it's late on a Monday night and I'm working my way through a few days worth of mail, when I open a letter from the Illinois Secretary of State's office. It's from the Driver Services department. It's a notice that they are suspending my driver's license.

The suspension is effective on Tuesday, and since it's about 1:30 at night, my license is already gone. I'm about two or three days behind on opening the mail, but even so, that's very little notice. If I'd waited one more day to pay my bills, I would have been driving around on a suspended license without even knowing it. You get arrested for that.

The first thing I do is call the head lawyer at the 4-man office that handled my defense and leave a message on the answering machine explaining what happened and asking if there's anything we can do about it.

Next, I wake up my wife and tell her the bad news. I'm supposed to go visit my parents the next day to do some things for them. I'll need her to take time off from work to drive me over there, so I need to make sure she doesn't get up and go to work without waking me.

I go to sleep trying to figure out why they've suspended my license when the law makes it pretty clear there has to be an accident first.

The next day, on the way to my parents' house, the head lawyer calls my cell phone. He can't figure out why they're suspending my license either. He had called a lawyer of some kind for the State of Illinois to get an explanation, and he couldn't figure it out either. At this point, we're all beginning to wonder if this is some kind of error.

To be sure, however, he wants me to fax him a copy of the letter so they can look for clues. I explain that I'm on the road, but I'll fax them something in a few hours when I get back home. He told me to send it as soon as I could.

(I later realized there was a lot of harmless miscommunication in this call. When I said I was "on the road," he probably thought I had just told him I was driving on an expired license. Maybe that surprised him into forgetting to mention that he was in a hurry because we were coming up on a 30-day filing deadline for some kind of motion.)

Before I got home, the head lawyer called again. They'd found something in the administrative code for the Secretary of State's office that allowed the suspension.

I later found the piece of law they were talking about at 625 ILCS 5/6-206(a)(37). It reads like this:

Sec. 6-206. Discretionary authority to suspend or revoke license or permit; Right to a hearing. 

(a) The Secretary of State is authorized to suspend or revoke the driving privileges of any person without preliminary hearing upon a showing of the person's records or other sufficient evidence that the person:

...

37. Has committed a violation of subsection (c) of Section 11-907 of this Code;

Unlike the language spelling out the violation, this paragraph doesn't limit the suspension only to cases involving an actual accident.

(By the way, could somebody explain to me why section 6-206 is repeated five times in the Illinois Compiled Statutes? Did they pass five different versions over the years, none of which revoked the previous version? I've seen this in other parts of the code. Are they just documenting the history? What's going on?)

Note, by the way, the word "discretionary." Illinois Secretary of State Jesse White didn't have to suspend my license. My record was pretty clean and I hadn't had a ticket in at least 3 or 4 years. He could have let it slide. But he didn't. Because Illinois Secretary of State Jesse White is a dick.

Yes, I'm blaming him personally. He puts his name and face on every damned thing associated with his office, so I've decided it's only fair for me to put his name on this too. If he seeks re-election in 2010, I'm going to be badmouthing him a lot here on Windypundit and maybe I'll even do volunteer work for his opponent. You cannot cross me with impunity.

Anyway, my lawyers had filed for a hearing of some kind in a couple of days that would allow them to ask the judge to reconsider his ruling. We were going back to court.

At this point, I took down all the Windypundit posts I had written about this incident and the trial. I had no idea what could come up, and those posts had statements about the incident and several accounts of privileged communications. I didn't want some curious ASA finding anything that might hurt me.

The plan for the hearing had two parts: The real plan, and the pretext. The real plan was to go in and ask the judge if he really meant to suspend my license for 90 days, or was he, like the rest of us, in the dark about the consequences. Since that's not an allowed reason to ask a judge to rethink his verdict, the pretext was based on hardship due to my father's poor health.

I had my doubts that this would work. It seemed like a long shot. On the other hand, other than the time and cost involved, I don't see how going back to court could make things any worse. However, I still ordered myself a CTA bus pass.

On the day of the hearing, I had a friend drive me to the courthouse, and I went to the courtroom to sign in. They didn't know who I was or why I was there.

Getting a little frantic, I called the law office to ask what was going on and where the heck was my lawyer. He found me while I was talking to them, and we checked the docket together. It hadn't changed. As the judge got started, he told us he'd fit us in if we got onto the docket before he finished it.

We hurried to the clerk's office, where it turned out that they hadn't collected the proper fee when my lawyer filed the paperwork. I paid them in cash, and the clerk walked the paperwork up to the courtroom with us. We made it with two cases to spare.

Next problem: There's no prosecutor. My lawyer says he notified the other side, but nobody has shown up. The judge sends a deputy out to find somebody who can represent the State's Attorney's office. A few minutes later he comes back with some random prosecutor in tow, and we begin.

My lawyer starts with a quick recap and then begins to make his main point, starting with the fact that no one at the previous trial knew my license was going to be suspended if I was convicted. Before he can get any further, the prosecutor interrupts and says, "I knew."

My lawyer responds, quite reasonably, by pointing out that this guy wasn't the prosecutor for my case.

Now we stop again while the judge sends a deputy off to find the right prosecutor. My lawyer and I chat with the other deputy for a while. It turns out he does security work at a mall near my home.

Somewhere in all this, another lawyer from the law firm shows up to hang out with us. I know he's been helping, so I mention as diplomatically as I can that I'm a little disappointed that my lawyers were unaware of this twist in the law. I don't expect miracles from them, but I thought I was hiring guys who knew what the law said.

He tells me that it took all four of them several hours to figure out what was happening and what to do about it. He says not all their copies of the Illinois statutes had this section in it. I don't know what to make of this.

Finally, the prosecutor from the trial shows up, and we're back in business. My lawyer makes his argument again, I explain about my need to take care of my elderly parents, my lawyer says my driving record was clean, which the prosecutor confirms.

Then it's the judge's turn, and he starts by lecturing my lawyer that next time he should do a better job researching the laws before stepping into the courtroom.

At that, I could barely contain myself: Every legal junkie knows that when the judge compliments your lawyer, you're about to lose. I could guess that the judge probably wouldn't be slamming my lawyer unless he was about to reward us with something nice...

And I was right: Conviction vacated. I get supervision, and an extra $50 added to my fine on top of the $115 or so in court costs.

As we walked out, I thanked the prosecutor for not making this too hard on me, and when we got out into the hall I thanked my lawyers profusely for an awesome job.  I know, I know, it's only a suspended driver's license, but it felt damned good to win.

I wasn't free and clear just yet. The court automatically notifies the Driver Services office when you're convicted, but if that conviction is vacated, you have to notify them yourself. (Actually, I think you could let them do it, but it takes a few weeks.) Also, I had followed the instruction in the Secretary of State's notice of suspension and mailed them my driver's license, so I would need to get another one.

I took a train to the Secretary of State's office downtown and filed a copy of the judge's order. My lawyer had told me this would instantly activate my license, but the lady who processed the paperwork said it would take 3 or 4 days.

The next day, I got to thinking about it, and I realized that while my lawyer may not know as much about Scott's law as I had hoped, he probably knows the procedure for un-suspending a license, since that must happen pretty often. On the other hand, the old lady who entered the paperwork might have been trained before everything was computerized.

I called the automated line at the Driver's Services office in Springfield, entered my social security number and driver's license number, and a computer told me "Your driver's license and driving privileges are currently valid. Please drive safely."

Now I had to go back to the Driver's Services office to get an actual physical license. The question was, should I drive there? I was 90% sure that I could do it. Even if a cop stopped me, a computer check would confirm my driving privileges. After all this trouble, however, I decided not to take the chance.

The nearest Driver's Services facility is just a few miles from my house, but by some strange twist there's no city bus that passes closer than half a mile to it. So I ended up taking the bus part way and walking the rest. In the rain.

When I got there, I was dripping all over the floor. The clerk remarked on this, and I explained that I wouldn't be there if that Jessie White hadn't tried to suspend my license.

Unlike some of the horror stories I've heard from other states, the Illinois Driver Services offices are a model of swift and courteous service. I was done in less than 10 minutes.

Of course, they charged me $10.

Given that I jumped the gun by blogging about the first appearance in court when my case wasn't quite over, I was reluctant to post anything about these new events, in case something else went wrong. I finally decided to re-post the old blog entries but to postpone a new one---this one---for a year, just to make sure nothing else happened.

It may sound like I'm whining, and maybe I am, but whining about stuff like this is what blogging is all about. Besides, for some reason, these sagas about my contacts with the Cook County Court System seem to draw a lot of links to the blog.

Also, consider that I have a flexible work schedule, a wife who can drive me around, and enough money to fight this in court. A lot of less fortunate people would be waiting out the suspension, driving anyway because they have to, and hoping they don't get caught.

Another thing to remember is that all of this---two court appearances, $800 in fees and penalties, all that running around---followed from a single traffic ticket for failing to move over one lane as I passed a truck sitting on the side of the road in a construction zone.

I can't imagine how difficult it must be, when charged with a serious crime---one with jail time and conditions of bail---to keep everything straight and do everything by the book. I'm guessing that many people can't keep up with all the details, and the unlucky ones are randomly caught and jailed. 

Back when I reviewed Barry Cooper's Never Get Busted Again DVD, I wrote this about the third chapter:

This chapter also has what's probably the most controversial piece of advice: Don't refuse the officer's request to search your car. That goes against everything I've ever read. However, on reflection, Cooper's argument isn't totally insane: As former defense attorney Ken Lammers has pointed out many times on his blog, you don't really have any effective Fourth Amendment protection against a search anyway when you're in your car.

By refusing to let a cop search your car, you've all but told him that you have something to hide. You could quickly find yourself surrounded by six cops and a drug-sniffing dog, all willing to spend as much time as it takes to find a reason to search your car without your permission. According to Cooper, you're better off hiding the drugs really well and letting the cop make a quick but unsuccessful search. That makes a kind of crazy sense, but I know people who've refused a search and the cop just went away.

I was certainly right about that: This was the most controversial part of the video (at least in the libertarian-ish blogosphere---I imagine drug warriors hated other parts of it). Jon Katz weighed in on it, Loretta Nall trashed it, and Scott Morgan at FlexYourRights really laid into it. Barry Cooper himself turned up at all these sites to mount an energetic defense.

I ended up almost defending Cooper's position, not because I believed he was right, but because his opponents seemed to be missing his point.

Criminal defense lawyers everywhere tell you never to consent to a search. In fact, many of them tell you to not even talk to the police. That's very good advice, but it's often less than completely helpful.

First of all, criminal defense lawyers only see the people who talked to the cops and got in trouble. The people who talked their way out of trouble don't need lawyers.

Second, refusing the cops is hard. Really hard. And defense attorneys writing for general consumption almost never give you advice about how to actually do it. They explain the importance of not giving up your rights, but they rarely have practical advice about how to manage a stressful encounter with a hostile law enforcement officer.

(Two obvious exceptions are the folks at FlexYourRights and the Just Cause Law Collective.)

Third---and this was Barry Cooper's point---refusing to talk to the cops will make them suspicious. Legally, you have every right to remain silent, refuse searches, and refuse to explain yourself. You may not even have to identify yourself. But all of these things will make the police suspect you of something illegal. It may not be reasonable suspicion, but it could be enough to make the cops spend a lot more time with you.

Perhaps a less confrontational approach would help. Military philosopher Sun Tzu advocated a style of warfare that defeated the enemy with the least amount of fighting possible: "Hence to fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy's resistance without fighting."

Cooper's advice to consent to searches---and most of his DVD for that matter---can be defended as the application of this principle to encounters with suspicious policemen: The best way to keep the police from bothering you is to keep them from wanting to bother you. Make the cops think they are wasting their time. You do that by doing what most innocent people do: Cooperate.

(Be warned that Cooper's advice to consent to a search depends on two assumptions: First, that you have followed the rest of his advice and hidden whatever you're hiding well enough that a cop won't find it with a quick search---if you have drugs in your coat pocket, you're out of luck---and second, that your police force has little respect for your rights---like Cooper's former Permian Basin Task Force---and won't just leave you alone when you invoke them.)

To summarize:  Defense lawyers expect the police to respect your rights and respect your refusal to cooperate. Ex-cop Barry Cooper expects the cops to trample your rights, so you might as well act like you have nothing to hide. I suspect the truth is some combination of these views.

I'm bringing all this up again because of something I read in the blawgosphere a few days ago. Criminal defense lawyer Jon Katz---someone very aware of the rights of people being questioned by the police---was questioned by police.

He was at the airport, waiting for some visitors to arrive on a delayed flight, so he decided to practice his t'ai chi in an out-of-the way place. (He was doing this.) Perhaps someone found this suspicious, because a few minutes later some cops caught up to him. Here (slightly simplified) is the part of the conversation I found most interesting:

Cop No. 2 (playing the good cop role): Excuse me sir. Would you mind stepping over here? (Another choreography direction from the cops while I am not free to leave.) All we want to know is what you were doing if you are willing to tell us.

JK: (Do I stay silent, which I tell others to do when they are suspects, or do I wear the hybrid hat of a criminal defense lawyer who stands up to cops all the time for my clients, and someone wanting to be there when my visitors arrive at the gate (how often do cops try to divide and conquer like that?)? It's the Chinese martial art of t'ai chi. I hadn't gotten around to doing it yet today.

Cop No. 2: (Already nodding her head knowingly before I finish talking). I thought so.

JK: Am I free to leave? (One of the Busted video's most essential lines.)

Cop No. 2: Yes.

Katz's explanation for why he cooperated with the police is that the second cop seemed friendlier, and he was worried that if he didn't answer their questions, the cops would keep detaining him.

Fair enough. But I'll bet he hears that same explanation from a lot of his clients.

I don't mean to pick on Katz---he's a friend of the blog---but frankly I feel a little better about my own obsequious performance with the police after hearing that even seasoned defense lawyers don't always handle it by the book.

Update: I notice that Katz ends his post with this:

Will I continue practicing t'ai chi in airports, empty subway platforms, outside courts, in parks, and in my own backyard? Absolutely. Join me?

Jon, T'ai chi looks like too much work for me, but I'll tell you what: Next time I'm in D.C., meet me at the airport. You can do suspicious t'ai chi and I'll take suspicious pictures of you. Maybe we'll both get a story worth posting about.

You do have a bail bondsman you work with, right?

Lawyer Steven Molo has posted a couple of comments to my review of his book, Your Witness: Lessons on Cross-Examination and Life From Great Chicago Trial Lawyers, and I thought they were interesting enough that I'm excerpting them here:

I apologize if my comment about not being an avid reader of blogs was off-putting or had any ring of arrogance. I meant it more as an admission of my own deficiency. As you correctly note, my complete response wasn't limited to the four blogs mentioned and did state, "I need to get into it a bit more" -- and I do.

The whole experience of promoting this book on the internet has taught me a lot. Successful trial lawyers, as the book notes, need to stay connected to the world around them and I certainly need to do a better job of that when it comes to what is going on in the blogosphere.

...

Finally---I just want to note that the author royalties from Your Witness are being donated to the Chicago Bar Foundation, which supports @ 40 not-for-profits that help bring equal access to justice to the Chicago area's less fortunate.

One of the questions I asked Molo in my e-mail interview was if he knew any good books for legal spectators like me. His second comment to my review expanded greatly on this subject:

On an additional point raised in your review---you note that you like to read "about legal stuff" and that I recommended One Man's Freedom by Edward Bennett Williams. That is a great book and but is not completely focused on trials. For those whose interest is primarily in books about trials, I have a few more recommendations from my own bookshelf.

The late Louis Nizer, a NY trial lawyer of the mid-20th Century, wrote at least three books about his cases: My Life In Court, Reflections Without Mirrors, and The Jury Returns. I haven't turned to these in a while but I found them all good reading as I was growing up in the business and know their appeal extends to those who are not lawyers.

Francis Wellmen wrote the bible on cross-examination, The Art of Cross-Examination. He was a NY trial lawyer of the early 20th Century. His autobiography, Luck and Opportunity, is I think, in many ways as good a read as The The Art of Cross-Examination, although it is less technically focused.

Earl Rogers was maybe the best trial lawyer of the early 20th Century in California. His daughter Adele Rogers St. John -- who Rogers, a drunk, would often take to court with him -- wrote a wonderful account of her father's life and trials in Final Verdict.

When I was a very young lawyer I had the good fortune to have a case against one of the most colorful members of the Chicago trial bar of the time, Julius Echeles. Echeles used to claim he was the last lawyer to have read for the bar (not graduated law school) who was admitted in Illinois. While a lawyer, he was also prosecuted, convicted, and had his conviction overturned on appeal -- but that's another story. I asked Echeles what it took to become a great trial lawyer and he said -- not surprisingly -- try cases.

He also said to read about trials and he gave me a handwritten reading list that included the names of Henry Cecil, an English Barrister, and Arthur Train. Cecil's works are fine and worth reading. But, Train's turned out to be a terrifically wonderful surprise. He was a a NY trial lawyer in the early 20th Century -- roughly a contemporary of Wellman. He was sort of the Scott Turow of his day in that he was a real trial lawyer who was also a novelist. His protagonist was a wonderful trial lawyer named Ephraim Tutt. There are a whole series of Tutt books, recounting his victories and defeats in a variety of cases.

The best Tutt book, however, is Yankee Lawyer, the fictional autobiography of Ephraim Tutt. It is a wonderful literary vehicle -- the autobiography of a fictional character. In reading it, lawyers today would be struck that notwithstanding the passage of almost a century, a lot of the good and the bad of the profession remains the same.

I believe all of these -- with the exception of The Art of Cross-Examination---have been out of print for some time.

One thing I truly enjoyed in my late 20's was hunting for Tutt books in used bookstores across the country. They were easiest to find in NY but you could run across them in odd places -- I found my first copy of Yankee Lawyer in an antique store in Saugatuck, Michigan. Amazon, for all of its positives, has pretty much taken the joy -- or at least the necessity -- of that away.

There are many other books about great trial lawyers of the past and their cases---Percy Foreman, Joseph Auerbach, Max Steuer, Lloyd Paul Stryker---the list goes on and on. There is, of course, great fiction and non-fiction being written about the courtroom today. Scott Turow, John Grisham, Gerry Spence, and John Mortimer all tell great courtroom tales and "know from whence they speak". It is a great profession and I guess its enduring interest to writers and readers is testament to that.

(I have reformatted Steven Molo's remarks for readability and added links to Amazon where appropriate.)

I haven't heard of most of the older books, except Wellman's The Art of Cross-Examination, which I suspect isn't as entertaining to a non-lawyer as some of the other books.

Scott Turow's writing is terrific. He handles the characters and setting of the law very well, and it was his Presumed Innocent that got me interested in reading about what lawyers do. In his recent World War II novel, Ordinary Heroes, he demonstrates his talents by reaching beyond his grasp, and grabbing on anyway. I hope someone's making it into a movie.

I'm not such a big fan of John Grisham. All his main characters seem to hate being lawyers. Maybe that's changed recently, but I stopped reading after Pelican Brief. (I make money if you follow my links and buy the book, and I'm still not linking to Pelican Brief.)

I'm mad at Gerry Spence because he ripped me off with How to Argue & Win Every Time. When one of the most famous trial lawyers of our time writes a book with a title like that, I expected it to be about kicking ass and taking names. Instead, Spence talks about using a larger definition of winning that involves getting what you want through communication and cooperation. (At least that's what it was about up to the point where I stopped reading.) There's nothing wrong with that---it's my preferred approach---but that's not what I wanted from the book.

I'd also add Sheldon Siegel and William Lashner to the list of novelists.

Siegel's not a criminal lawyer, but he obviously admires them, and he does enough research to write well about the trial process.

Most courtroom fiction derives some of its tension from the fact that no matter how high the stakes, the lawyers are supposed to stay within strict legal and ethical boundaries. Lashner's stories focus less on the trial than on the underlying mystery, and his protagonist, Victor Carl, has a shaky relationship with ethics. Lashner himself is a former federal prosecutor, and his stories read like a prosecutor's wild fantasy about the crazy stuff defense lawyers get to do. The characters, situations, and dialogue are hilarious.

(Lashner's Bitter Truth has one of the best opening lines of any novel I've read: "I suppose every hundred million dollars has its own sordid story and the hundred million I am chasing is no exception.")

Thanks, Steven, for the recommendations.

This seems to be the right time for publishing reviews of Your Witness: Lessons on Cross-Examination and Life From Great Chicago Trial Lawyers, edited by Steven F. Molo and James R. Figliulo. Already Scott Greenfield has posted a review, and Mark Bennett posted his review just a little later. I guess it's my turn.

Your Witness consists of 50 short chapters about different aspects of cross-examination, each written by a different lawyer. Most of the chapters include a story or two from the author's career.

The book is a Chicago project. All of the lawyers practice in Chicago---although a number practice in other places as well---the editors are from Chicago, and the book is published by the Law Bulletin Publishing Company, which is located in Chicago.

Personally, I enjoyed the book a lot. I like stories about lawyers and the sneaky things they do, and cross-examination is where the sneakiest lawyers really shine. If you like tales of skillful legal combat, you might enjoy reading these stories.

(If you're as fascinated by legal stuff as I am, editor Steven Molo also recommends reading One Man's Freedom by Edward Bennett Williams. It's long out of publication, but you can find a used copy at Amazon.com. I just got mine in the mail.)

The price is about twice the cost of a typical hardcover from Amazon, which is a little steep if you're not buying it for your job, but you'll probably be able to find a used copy in a few months.

But this book isn't meant to be read for entertainment purposes alone. It's intended to teach new lawyers and lawyer wannabes a few practical aspects of cross examination. Since I'm not a lawyer, I don't have much to say about that---read Greenfield or Bennett for criminal trial lawyer's view---but I suspect that trial lawyering is one type of work that really benefits from reading other people's stories.

I know that when I was a computer systems manager back in the 80's, one of the most useful aspects of users' group meetings was hearing everyone else's war stories and horror tails. It's helpful to hear how other people solved problems, and it's even helpful to learn that other people are having the same problems as you. If you're a trial lawyer and that sounds right to you, then you should probably get yourself a copy of this book.

One of the things that impressed me about Your Witness is that the editors somehow got 50 busy trial lawyers to take the time to write a chapter. In an email interview, I asked Steven Molo how they did it:

Well, your question is probably best answered by the fact that it took over four years to complete this project.  Given the schedules of the authors and editors, it was not the sort of thing you just sat down and did.  There was a lot of picking it up and putting it down but in the end we believe it was worth it.

In the introductory matter, the editors said they chose only lawyers in private practice (with the exception of Federal Defender Terry MacCarthy) so I asked Molo to explain why:

First, there are very few, if any, government lawyers with the breadth of experience possessed by the authors of this book. Second, as far as prosecutors go, they simply do not have the opportunity to cross-examine witnesses as often as defense lawyers and given their usual advantages in a trial, their true abilities as trial lawyers generally are not tested until they are on the defense side.

Terry MacCarthy was included as an author because of his long and successful career, and because he is well known to members of the local and even national bar.

Since I read courtroom drama for entertainment, I'm used to reading about murder, rape, drug deals, and violent street crimes. Your Witness naturally had to have a much broader view of trial lawyering, including a lot of civil actions, but it seemed to me that most of the criminal trials tended to be for white-collar crime, including rather a lot of trials for corruption (especially corruption of Cook County judges).

I also asked Molo if white-collar crime was an intentional focus of the book. He responded by disputing my premise:

There are plenty of stories about "non-white collar crime" in the book.  Read the chapters of Bill Martin, Ray Smith, Sam Adam, Rick Halprin, Tom Breen, and mine for that matter.  We didn't direct authors to write about any specific type of case.  Plenty of us have represented people charged with murder, rape, and robbery over the years. There are also stories about great moments in personal injury trials, patent disputes, and business cases.  We tried hard to have authors who represent a broad array of trial practices.  We believe great trial lawyers can try any type of case.

The subtitle claims the book has "Lessons on Cross-Examination and Life," and I found a few life lessons in the book, but this is getting long enough, so I'll be writing about those in upcoming posts.

Anyway, to finish out my review, I asked Molo which blawgs he reads. He responded that he's too busy practicing law (or writing books with 50 authors) to read many blogs, but he likes to occasionally check in on these:

• The Becker-Posner Blog
• The Wall Street Journal Law Blog
• Above the Law
• Deliberations

Judging by the blogs missing from that list, I suspect Molo doesn't know which bloggers his publicist has been sending review copies to.

I've gone a month without having a drink.

It's not that I'm trying to quit or anything, I'm just not a drinker. I have nothing against booze or the people who love it, but I rarely ever get that "I'd like a drink" feeling. I probably haven't been over the legal limit since sometime in the 1980's.

So I always figured that if a cop asked me to take a breathalyzer test, I'd have nothing to worry about. I'd blow a straight zero and walk out of there. The alternative would be to refuse the test and get an automatic license suspension.

Then I read this post by Houston Criminal Defense Lawyer Mark Bennett:

[R]emember that, in Texas, by the time you're asked to blow into an Intoxilyzer-5000, you have probably already been arrested, which generally means that the cop thinks that he has probable cause (based on the field sobriety tests) to believe that you had lost the normal use of your mental or physical faculties.

...

What if you haven't been drinking at all? If you blow .00, you're buying yourself a date with a "Drug Recognition Expert", a cop trained to find some explanation for your loss of mental or physical faculties. Even if you haven't been drinking, you can be prosecuted for DWI if the police think that you have lost your faculties because of the introduction of a drug into your body.

So don't blow.

Well, that's not good, although I suspect a prosecution based on a drug recognition expert would be pretty difficult if there's no chemical evidence of drugs. (I don't do drugs, either.)

This got me wondering what the rules are like here in Illinois, and if it's really a good idea to refuse the test in Illinois when I haven't been drinking. That got me started searching for advice from Illinois DUI lawyers, to see what they recommend.

I didn't find anything, because I gave up after reading the FAQ list on the site of Jerald Novak and Associates. This struck me:

Should I submit to a chemical test? Can I refuse?

The police officer cannot force you to submit to a chemical test. However, if it is found that you refused the test, your Illinois Driver's License will be suspended for a one-year period by the Department of Motor Vehicles no matter what the outcome of the court case is.

A one year suspension for refusing. That's a lot.

However, according to the state's CyberDriveIllinois site, the suspension is only for 6 months. That doesn't necessarily mean that Jerald Novak is wrong: I'm not a lawyer, and DUI law is a snarl of badly-written statutes. He could easily be aware of penalties I can't find with Google.

On the other hand, what is this "Department of Motor Vehicles" of which he speaks? I never heard of it. I renew my driver's and vehicle licenses through the Driver Services department in the Illinois Secretary of State's office.

I think somebody copied a FAQ page from a lawyer in a different state and never got around to checking the details.

A few days ago, Gideon at a public defender posted a very thoughful response to my post discussing whether criminal defense lawyers help their clients get away with crimes:

We fight. We fight tooth and nail. Not because we absolutely believe that our client is innocent---in fact, most of the time we don't care whether the client is guilty or not.

We use phrases like "make the State prove its case" and "the burden of proof is on them and if we don't make them meet it, the slope will start slipping".

That's only a piece of the beginning of Gideon's response, but I'm going to take it and run in a different direction. To start things off, I want to talk about how quality is measured.

One of the aims of statistical quality control is to observe and then eliminate variance from an industrial process in order to improve the quality of the output. If some chemical mixture is supposed to cook at 190 degrees, it often doesn't matter much in terms of quality control whether the temperature is 185 or 195, as long as it's the same temperature every time.To tell if that's the case, you have to take temperature measurements every time you reach that step in the process.

But taking the temperature is itself a process that is subject to variance: Do you take the measurement in the middle of the chemical vat, or near the edge? Do you measure the temperature at the surface of the mixture, at the bottom, or somewhere in the middle? Does it matter if the probe is inserted at an angle? Such variations in the measurement process could cause you to draw incorrect conclusions.

To reduce the effects of measurement variance, quality control experts like to use operational definitions of the quantities to be measured. So instead of saying "measure the temperature of the chemical mixture" the quality control manuals will spell out the procedure in detail:

Use Binford X2102 digital temperature meter fitted with a Type B 25-inch probe. Turn the meter on and allow the electronics to stabilize for 30 minutes. Then open the measurement port at the center of the top of the chemical vat and insert the probe 18 inches into the vat. Wait one minute. Record the temperature indicated on the probe display.

Having such operational definitions for every measurement will improve the quality control statistician's ability to judge the quality of the process.

Quality judgments are not always as objective as a simple physical quantity. Sometimes they involve an inherently subjective evaluation.

When a web search company is considering a change to their search algorithm, they need to make sure it's going to be an improvement. The new algorithm should produce search results that are more relevant than the old one.

Unfortunately, there's no objective way to measure relevance. It's an inherently subjective concept: Search results are only relevant to the people who use them. To test a search algorithm, you have to have real people evaluate the results.

A further complication is that people are different. Some people who search for "Catholic girls school" want to find a place to send their daughters, and some people want to find pornographic fantasies about Catholic school girls. As with any poll, the solution is to use a randomly selected group of people and average away the differences.

In essence, this testing process---evaluation by a pool of random strangers---is the search engine company's operational definition of how search quality is measured.

I'm probably stretching the analogy too far, but I tend to think of the criminal trial process as our society's operational definition of guilty.

The use of a jury, especially, makes the whole process sound a lot like a scientific measure of a subjective quality:

In order to prove someone guilty, a prosecutor has to gather all his evidence and testimony and present it in a formalized manner to a disinterested and isolated group of twelve strangers in such a way that they become unanimously convinced beyond a reasonable doubt that his claim of guilt is true despite the efforts of a dedicated opponent assigned the job of challenging his claim.

(That's a summary, of course, a virtual platonic ideal. The real operational definition of guilt consists of the entirety of criminal procedure, and it's messy and ragged and forever changing.)

One of the things that's kind of surprising about this process of finding guilt is how distrustful it is of the people in the justice system. Not only is the entire process of deciding guilt handled by a separate branch of government, but even the people working in that branch are not trusted to decide guilt, which is left to the jury.

Even then, the prosecutor is not allowed unobstructed access to the jury. His every move is opposed by a person assigned the task of doing exactly that: The defense attorney.

That's why when I say that criminal defense lawyers are there to help their clients "get away with" their crimes, I really don't mean it in an offensive way. They play an important part in a high-stakes decision making process. It would be far too easy to convict people of crimes if there wasn't someone assigned the specific duty of zealously representing the defendant's interests. 

I've always thought that Ken Lammers put it well:

Basically, whether you are trying to get a good deal or a verdict of not guilty (as few and far between as those are), as a defense attorney you almost invariably represent a client's liberty interest against society's long term interest in making him conform and the government's use of power to either force conformity or seek vengeance.

I suspect that most criminal defense lawyers do not draw inspiration from the thought of playing a role in a system of checks and balances, but they don't have to. As long as they are inspired, they will serve their purpose.

We had a plumber come in today to replace the toilet in our master bathroom. He was from the same company that does a lot of the plumbing work for our condo association, so I figured they'd be reasonably professional about it. I left him alone to get the job done while I worked on the computer.

When he finished, I went in to check the work, and he had installed the wrong toilet. I had picked one out from a Consumer Reports review, but they'd given him something completely different to install. Furthermore, they wanted about 20% more than their original estimate.

So you know what my wife and I did to those incompetant, greedy bastards?

We paid them. Yeah, that's right, you heard me.

It made sense at the time. My wife was busy, I was busy, and aren't all cheap toilets about the same? You've go to pick your fights, and this just didn't seem worth it.

Naturally, for the last four hours, I've been pissed off about it. And for the next month I'll probably get pissed off all over again every time I take a crap.

They'd done all the work already, and I hadn't paid them yet, so I pretty much held all the cards. I should have told them I'd pay them for taking out the old toilet (which is the bulk of the labor) but that they were out of luck on the toilet they'd brought.

Sigh. Actually, I'm getting over it already. That's because I found something else to worry about: If I don't have the motivation to stand up to a plumbing outfit that's trying to pull a fast one, what am I going to do when The Man comes knocking?

Despite my interest in crime and criminal defense, I've never been the target of a police investigation. I've lived a virtuous life, and the issue has never come up. Which is no guarantee it won't.

I know what I'm supposed to do when the police come around asking uncomfortable questions. But will I?

Or will I take the "easy way out"?

A few days ago Rob Deters at the 26th St. Bar Association wrote about how it felt to stop a police interrogation of one of his clients:

I've run into police stations, waived my card and Cook County ID around and asked to see my client, where I tell them, immediately, to shut the hell up.  I also tell the detectives assigned to their case that my client is shutting the hell up and that he has a lawyer.

However, as a law abiding citizen, and as someone who actually does want the police to catch criminals, assertion of these rights is anathema to the crime solving process.  You have no idea how many crimes are sealed with a confession.

...

So why am I conflicted?  Because I want the police to catch killers, molesters, thieves and dealers.  My job is to be a passionate advocate and defend your rights to their fullest extent.  But that doesn't mean I want you to get away with murder.

I want Chicago to have an active criminal blawgosphers, so want to encourage Rob to blog more. To that end, I trolled his comments just little bit:

You say that you don't want to help us get away with murder, but if we're one of your clients, you will, right?

(Within the rules, of course.)

I wouldn't normally ask the question, but since you mentioned that you feel conflicted, I'm wondering what it is about criminal defense that makes you do it despite that fact that you are uncomfortable helping people get away with crimes. In other words...how can you defend those people?

Most criminal lawyers get asked that last question all the time, so I figured it was an easy one, but Rob took issue with my first question:

I can't help anyone "get away with murder." No lawyer can, unless they actually break the law. No, what I do is I defend your rights, and I make sure that the other side doesn't cheat. That's not the same as helping you get away with murder.

It is to me, if I'm a murderer.

I don't think Rob means what he wrote (at least not the way I'm taking it) especially that part about having to break the law to help a client get away with a crime. Or else criminal defense lawyers don't do what I've always thought they do, because I'm pretty sure that if I'm charged with a crime, it's my lawyer's job to try to stop the state from convicting me even if I did it.

My view is that a prosecutor or police officer who breaks the law to convict you is a criminal. And criminals convicting criminals is frontier justice. You might as well get a posse and go around shooting wrong doers. That's where I come in, I'm the civilizing force that makes sure we're all playing the same game.

It's not a matter of whether you think you should "get away" with murder, it's whether the other side isn't getting away with breaking the law to convict you.

Yeah, but sometimes you've stood up for all your client's rights and excluded all the illegally-obtained evidence and there's still enough in the case file for the prosecutor to take it to trial. When that happens, the defense lawyer is going to have to try the case on its merits, presenting an argument that he hopes will convince the jury to find his client not guilty.

Sometimes that involves some unsavory but legal tactics, such as attacking the credibility of witnesses by attacking their character, presenting rebuttal witnesses who may be lying, or playing the race card.

This zealous representation of criminal defendants is part of our system of safeguards against tyranny. It forces the government to do the hard work of proving their case every time. It keeps them honest. In that sense, criminal defense lawyers protect the rights of everybody.

On a case-by-case basis, however, it's supposed to be all about winning the best possible outcome for the client. And if the client actually did the crime, but the jury doesn't convict, then he's gotten away with it.

I love reading about crimes and criminal law. The issues are fascinating and the stories are sometimes pretty cool.

(One of my favorites is about a pre-trial proceeding where the judge decides that the defendant has been assigned to the wrong court because of his age. The defense lawyer interrupts to ask if this means the court has no jurisdiction. When the judge agrees that's true, the lawyer immediatly grabs his client and marches him out of the courtroom and down the hall toward the exit from the courthouse. They almost made it to the street before some cop figured out a legal reason to stop them. I don't know if that's really a smart thing to do, but if I'd been the client it would have impressed the hell out of me.)

Anyway, this blogging thing just paid off again. A publicist just sent me a review copy of Your Witness: Lessons on Cross-Examination and Life From Great Chicago Trial Lawyers, edited by Steven F. Molo and James R. Figliulo.

It's a collection of 50 short chapters, each written by a local lawyer. I don't know the Chicago legal community at all, so I'll have to trust the editors' assertion that these people really are great lawyers (although, for example, Terry MacCarthy has been the Federal Defender for Chicago for 40 years so he probably knows a trick or two) but some of them sure are well-known names.

Dan Webb was U.S. Attorney during the Greylord investigation into corrupt judges in Cook County and a prosecutor in the Iran-Contra mess, R. Eugene Pincham was a prominant judge who ran for Mayor of Chicago, and as I write this, Sam Adam is awaiting a verdict for his client R. Kelly.

Some famous names also provided publicity blurbs for the book, including Supreme Court Justice John Paul Stevens, Cook County States Attorney Dick Devine, Kenneth Starr, Andrew Napolitano, Bill Kurtis, and a whole bunch of lawyers whose names would probably be important to other lawyers. (David Boies? Brendan Sullivan? Evan Chesler?)

The book is dedicated "To all those who enjoy a good courtroom story..." which certainly includes me. I just hope the stories don't rely on more legal knowledge than I have.

So far, I've been working my way through the surprisingly complicated frontmatter, which includes a forward by author Scott Turow (whose Presumed Innocent got me interested in reading courtroom stories), a notice that all the authors' profits will be donated to the Chicago Bar Foundation, acknowledgements, the table of contents, a section describing how the contributing authors were chosen, an introduction by Steven Molo, and a curious "Cautionary Note":

The stories and references in this book are based on real-world trial experience, but as with most good stories, they all may not be entirely precise. Sometimes names and dates have been changed, sometimes the details are generalized, and occasionally some stories have gotten better with age.

Heh. In other words, these stories are just a little too entertaining to be ruined by fact checking.

I can live with that. What I'm hoping for is the literary equivalent of spending a few hours listening to a bunch of experienced lawyers tell entertaining stories over dinner and drinks. It's a good sign then, that the first story starts in Binion's Restaurant, which on most nights could include a sampling of just about anyone from the federal trial bar.

That's where the author first ran into a famous lawyer named Frank Oliver, whose courtroom dress included an amber amulet, a walking stick, and a cape... I think I'm really going to enjoy this.

Update: I did enjoy it.

A few days ago, I lamented the poor state of Chicago-based criminal defense blogs. As I hoped, a few local lawyers spotted it and spoke up.

The first one was Chicago divorce lawyer Maria Fahnert. Not what I'm looking for, but since she was nice enough to leave a comment---and wasn't obviously just marketing herself---I thought I'd mention her.

The second response came out of a law office I mentioned in my previous post. I had poked fun at the criminal defense blog of Anthony W. Hill because the most recent post read, in it's entirety,

Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text

This brought an email from David Hill, who's helping Anthony set up his web site. As I suspected when I wrote my original post, I caught him testing the blogging engine and template layout.

Most of the website for the law office already existed, so David set up a Wordpress blog template that mimics the main website look-and-feel, then tucked it right into the site. You can see the template change when you know to look for it, but it doesn't disrupt user navigation. David and Anthony expect the blog to make it easier to update site content regularly, which they hope will attract visitors and search bots.

I'm not usually too excited about blogs that are obviously designed as marketing tools, but it's a good sign that the website and blog are homebrewed. It suggests that the lawyer believes in the idea and didn't simply purchase a blog from a company that's selling lawyers on the idea of blogging as a marketing tool. I'll be checking them out when they go live.

David himself just graduated law school himself, and he's got his own blog where he talks about legal stuff.

Finally, I drew a comment from Rob Deters, a genuine Chicago criminal defense blawger...who let his blog die out last December. He says he's going to post more. We've all been there.

Rob apparently reads my blog (it's always a little disturbing to encounter people who read my work regularly) and he says he does criminal defense work for pretty much all the same reasons it scares me: He loves thinking fast on his feet in court, and he likes a lot of his clients.

Rob's a second-generation criminal defense lawyer who came to Chicago a few years ago and ended up at one of the small law firms near the Cook County Criminal Courthouse and county lockup at 26th and California. (The top of his blog has a picture of the top of the courthouse.) Rob does about 80% criminal work including DUI, resisting, possession, and one homicide trial.

In addition to blogging, Rob has also published a few opinion pieces in newspapers. For example, I'm pretty sure he's the same Rob Deters who wrote this piece on congressional disregard for judges, so you can see what he looks like.

I just noticed that as I was writing this, Rob posted some new stuff on his blog, the 26th St. Bar Association. I wonder if my post goaded him into it. Maybe I'm inspiring our nation's youth.

Scott Greenfield has a terrific article about the troubles prosecutors have with victims and defense lawyers have with clients. Be sure to read the whole thing, as the final paragraph wraps it up nicely.

Those of us in the software business sometimes have a similar, though much less emotional, relationship with our clients. Unless you're being hired to assist someone who does the same thing you do---another lawyer, another developer---it's an important part of the concept that your clients are hiring you because they don't know how to handle the situation themselves.

If you can't handle that, your options for employment are going to be limited.

Last August I started a series of posts about troublesome features of laws that were absurdly complicated or that prescribed disproportionately heavy punishment, usually as a result of legislators trying to show they were "tough on crime."

In a homage to Gideon's post on the "most evil legal principle," I called my series "Evil Lawmaking." Unfortunately, that kind of hyperbole makes it hard to come up with a title when I want to talk about a genuinely evil law.

After I posted my first entry on the evils of free punishment, Scott Greenfield commented on his blog that he was troubled by the free punishment of civil forfeiture. I responded:

I'm doing a series of posts on "Evil Lawmaking." I didn't mention forfeiture as one of the free punishments because (a) it really falls into the category of profitable punishments, and (b) forfeiture is so evil it will be getting a post all to itself.

I never got around to writing that post.

In part, it was because I had been writing about relatively minor issues like profitable punishment, over-use of license suspension, piling on the punishments, administrative punishment, and the ridiculous state of DUI laws. To include forfeiture in that list is to trivialize it, and it's not a trivial thing.

Fortunately for all of us, Scott Greenfield hasn't forgotten about the forfeiture issues, as he proves with a terrific post that illustrates the issue with the sad story of one forfeiture incident as described on Law.com:

The K____s set aside about $1 million to pay attorneys by taking out a second home mortgage and cashing certificates of deposit. But prosecutors claimed the money was ill-gotten gains. They charged Kerri K____ stored the medical equipment in the family's garage. Her husband was indicted after she refused a plea deal. Prosecutors said he knew about the conspiracy and managed the illegal profits.

Even after being stripped of the money, the K____s didn't qualify for a federal public defender. U.S. Magistrate Judge James M. Hopkins in West Palm Beach concluded the couple could liquidate their 401(k) retirement accounts and their children's tax-deferred college funds -- at a cost of a $200,000 tax penalty -- to pay for a cut-rate lawyer.

[The defendant's name has been obscured at her request.]

The second reason I didn't write about forfeiture is because it's a very complicated issue. Actually, part of it is very simple: Law enforcement agencies accuse you of a crime and send men with guns to take all your stuff.

What makes it complicated is the legal explanation of why the courts don't think it's unconstitutional. Much legal fiction is involved, as Scott Greenfield explains: 

The assets usually aren't forfeited before trial, but seized and held pending the forfeiture proceeding.  This gets a little technical, as forfeiture is an in rem proceeding against the property, rather than an in personam proceeding against the owner of the property. But since it has a lesser standard of proof, probable cause, the outcome of a criminal proceeding, with the higher burden of beyond a reasonable doubt, has no effect. 

Got that? When the government takes your property, they're not after you, just your property. So it's all OK. Even better, if you win the criminal case, the government still doesn't have to give your stuff back.

I'm not making this up. It really is totally legal for the government---our government, here in America---to do this to you.

Which brings me to the third reason I didn't get around to writing about forfeiture: The subject enrages me, which makes it hard to pay attention and think clearly.

I first heard about civil forfeiture back it the late 1980s. It grew out of what was arguably a misuse of the RICO laws, and I naively thought that if enough people knew what was going on, Congress would feel pressure to amend the law to prevent further abuse.

Then the Pittsburgh Press published their excellent "Presumed Guilty" series in 1991, which blew the story wide open, and it was even worse than most of us knew. Law enforcement agencies were taking people's stuff and keeping it for themselves, using the proceeds of forfeiture to buy new equipment and pay for more personnel. This was a deep conflict of interest that distorted police priorities and rewarded them for all kinds of abuses.

Even more disturbingly, informants who tipped police off to big forfeiture opportunities could sometimes expect a cut of the action. So, for example, an airport employee who spotted a bunch of cash in somebody's luggage might get to keep 10 percent. (Remember, no one has to prove a crime occurred, so the government gets to take the money right away.) This sounds like something out of Stalinist Russia. I thought for sure that major reform was coming.

That was seventeen years ago, and there's been no real improvement. Civil forfeiture has worked its way from drug crimes to white collar crimes to seizing the cars of drunk drivers, all without proof of guilt.

I don't understand it. We've had protests about the Rodney King verdict, immigration, and the World Trade Organization. The Million Man March advanced on Washington to protest Republican social policies. But hardly anybody seems to care about this massive totalitarian abuse that's going on all the time.

Well, some of us do. One of Greenfield's commenters had this to say about it:

I cannot believe a human being can graduate from college, graduate from law school, pass a bar exam, and say with a straight face that pre-conviction asset forfeiture is constitutional. I only hope the federal and state prosecutors who are this dishonest will rethink their positions after their deaths, when their skins are on fire and one of Beezlebub's tentacles is affixed where their genitals used to be.

He sounds a bit crazy, but I can't fault the sentiment.

Scott Greenfield has an interesting response to the Supreme Court's ruling on the Protect Act in U.S. v. Williams.

...The problem is that criminalizing the speech of making offer/requests for kiddie porn, but then not requiring that there actually be kiddie porn or that the porn under discussion actually involves children, disconnects the speech from the underlying bad act (child pornography).

He quotes Eugene Volokh:

That the item might not actually be obscenity or child pornography doesn't matter because the general criminal law is that an attempt to commit a crime is punishable even if the attempt is factually impossible. Trying to buy illegal drugs, for instance, by soliciting someone to sell them to you is generally a criminal attempt even if the solicited seller was only going to deliver fake drugs rather than real ones. So the bottom line is that the prohibited conduct constitutes criminally punishable solicitation, offer, or attempt to get or give constitutionally unprotected material.

To which Scott responds:

Trying to buy illegal drugs is not a substantive state crime.  It is the possession or sale of drugs that is the crime.  If a fellow walks down Amsterdam Avenue asking if anybody knows where he can score some heroin, he has done nothing criminal.  It won't help his sainthood application, but he's not going to the can for it. 

Similarly, if a fellow stands on St. Nick asking passersby if they want some cheap blow, and then hands them a glassine of baby powder, he too has committed no substantive state crime, though he may have to run hard and fast to get away from some very disappointed purchasers.  There has to be real drugs involved, and there has to be an actual transfer involved, for the deal to be criminal.

Scott's speaking some legal language here that may have a meaning that eludes me, but I think some places have a crime called "sale in lieu of a Controlled Substance" which covers things like fake drugs. I don't know if there's also "attempted sale in lieu of a Controlled Substance." I kind of hope not. It seems wrong to jail somebody for a crime with two imaginary components.

That's Scott's point too. The Protect Act makes it a crime to offer to sell something which doesn't exist, even if no sale occurs and there's nothing to sell.

Honestly, I'm not entirely sure exactly what bad things will happen now that this law has passed constitutional muster, but it has the feel of one of those laws which will eventually be exploited to hurt a lot of people with very little benefit to society.

Not everyone agrees, as Scott relates:

Justice Scalia dismissed these concerns as "fanciful hypotheticals," saying that such situations would either not give rise to prosecutions or, if they did, would be protected by the courts.

I have to part ways with Nino here.  If constitutionality of a law is dependent on the sound discretion of prosecutors not to be overzealous or abusive, or the oversight of district court judges to somehow stop indictments should the AUSAs get out of control, we're in deep trouble.  History has proven that neither of these stopgaps work very well, and since when does constitutionality hinge on the government being trustworthy?

I would think at least since Hudson v. Michigan, when Scalia wrote,

Contrary to Hudson's argument that without suppression there will be no deterrence, many forms of police misconduct are deterred by civil-rights suits, and by the consequences of increasing professionalism of police forces, including a new emphasis on internal police discipline.

It's not that I want our justice system to be soft on child pornographers, but if we're going to carve out an exception to the First Amendment for child pornography, shouldn't we make sure it only applies when there's child pornography involved?

No, I'm not in trouble. But I could be someday, and it would be nice to know who to call.

Because I spend so much time on legal blogs, I know a few good lawyers, just not around here.

(Actually, I don't know that they're good---how could I really tell?---but they sound good, which is better than some. More importantly, they seem to respect each other's skills, and they'd be better judges of legal skill than I am.)

So, if I'm ever arrested in New York City, my first call is Scott Greenfield. If I'm arested in Austin, Texas, I'm calling Jamie Spencer, but in Houston I'm calling Mark Bennett. In Connecticut, I'm calling Norm Pattis (Sorry Gideon, I don't think they'd let me pick my own PD), and in the D.C. area, I'm calling Jon Katz. (Whether they'll take my call is a different matter...)

But if I ever get arrested in Chicago, I haven't got a clue who to call. For a traffic ticket, I could just pick at random, but for something a little more serious, I might want to make an effort to choose wisely.

How come there aren't any good criminal blawgers in Chicago? A search of blogs on Technorati for "Chicago criminal defense attorney" yields two hits. The first is Anthony W. Hill, whose most recent entry on May 14 reads, in it's entirety,

Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text

[Update: The guy who's setting it up emailed me to say that regular blogging will start soon.]

The other blog has apparently shut down.

Using a more general search on Technorati for "Chicago criminal defense lawyer" in any post, I get as the eighth result something titled "Chicago Criminal Defense Lawyer" which clicks through eSyndiCat to the law offices of Denise M. Nalley:

One of Chicago's most respected and experienced criminal defense attorneys, Denise M. Nalley, has earned a reputation for providing high quality and aggressive legal representation in Chicago and it's surrounding suburbs. A former Cook County Prosecutor, who understands both sides of the law well, Denise is committed to providing her clients with an aggressive and effective criminal defense. Denise understands that it is of the utmost importance to vigorously protect her clients' Constitutional rights.

No blog there.

More generally, if I do the search on Google, I just get hits for law firms, such as Michael J. Petro:

One of Chicago's most respected criminal defense attorneys, Michael J. Petro, has earned a reputation for providing high quality, aggressive legal representation in Chicago and around the United States. Criminal defense attorney, Michael J. Petro, earned this reputation by providing his clients with the highest standards of diligence, knowledge and professional advice, and by steadfastly protecting his client's constitutional rights.

No blog there either, but it reminds me of something I've read recently...

Next in the Google list is Norris and Callahan, whose motto is apparently "We Win Cases Other Criminal Defense Lawyers Said Were Impossible":

One of our clients came to our firm after two other attorneys told him that his case could not be won. When he contacted our law firm, he had already pleaded guilty the charge and was about to serve a 12-year prison sentence with the Illinois Department of Corrections. We took on his case, vacated (withdrew) his guilty plea, and won a not-guilty verdict at trial.

Wow, I think I gotta get these guys! They win cases.

Still no blog, though. Don't any Chicago defense lawyers write a blog?

Over at Simple Justice, Scott Greenfield says some nice things about an article I wrote:

It's got merit. I've said it before and I'll say it again, that Mark Draughn is a smart guy.  No wonder he never became a lawyer.

Mark is the Windypundit of Windypundit fame. For some unclear reason, he finds the law curious and maybe even fascinating, in some morbid way. 

I think Scott's being a little ironic, but there's also a question implicit in his comments: If I'm so fascinated by this legal stuff, how come I'm not a lawyer? In particular, how come I'm not a criminal lawyer?

The short answer is that I don't have what it takes.

For one thing, I don't think quickly on my feet. If a witness hits me with an ugly surprise, or a judge asks me to justify something I didn't think needed justification, I probably couldn't come up with a good response quickly, and that seems like a fatal error during a trial.

Another problem is that I'm not really what you'd call a "people person." I get along with people okay (as far as I know) but I'd have trouble getting strangers to accept me and open up to me. That might hurt me at trial, and it would definitely hurt with figuring out the clients.

I also don't think I'd enjoy doing law as much as I enjoy hearing stories about it. It sounds like very stressful work. I'm not a very confrontational person by nature. I can buy a car or negotiate for a higher salary when it comes up, but I wouldn't want a job that was like that all the time.

Another reason I'd be a bad lawyer is that I have trouble empathizing with systems of values very different from my own. For example, it dumbfounds me that anyone would want to lock a woman in jail for prostitution. I don't understand what's going on in the heads of people whose response to a woman selling her body is to make her life worse by throwing her in jail.

That's not really an argument that would work in court. I'd have to find a real defense. However, it would piss me off that my client's fate depends on a system built by people who think that way, and it would aggravate me that I couldn't do anything about it. Maybe I'd get used to it as I gained experience, but would that be a good thing? And what if I never got used to it?

The flip side of that problem is that criminal lawyers deal with some awful people. Norm Pattis has a case where a young man is accused of a sex crime against his five-year-old step-sister. This arose in the middle of a custody fight between their parents, one of whom might be coaching the daughter to lie. I have no idea what the truth is, but someone is doing something terrible. I'm not sure I could spend so much of my life dealing with such people, let alone defending them.

I'd also have trouble getting used to...uhm...failure. Criminal defense lawyers rarely have complete victories. Even a really good lawyer at the top of his game is going to have a lot of clients going to jail---he may have shortened the sentence a lot, but it's still jail. Having to accept such dismal results would take a lot of fun out of the job.

All these reasons are pretty negative, but there's also a positive reason why I never tried to be a lawyer: I learned early on that I enjoy developing computer software. I find it to be a fascinating and rewarding experience.

Software development is everything lawyering is not. We're all on the same team, and we're working toward the same goals. There are conflicting values that arise in software development---the main one being between supported features, quick delivery, and future maintainability---but these conflicts can be resolved against a common interest in business success. Usually it's possible to achieve engineering consensus, but if that doesn't work you can always kick it up to the management pyramid.

Most things in software development happen on a schedule of days or weeks, so there's little pressure to think quickly. Even if I do have to come up with a quick answer---in a meeting, say---we can always go back and revisit it later.

Finally, in most kinds of software development, failure is rare. We may not always deliver software on-time or within the budget estimate, and there are bugs to be fought along the way, but the software almost always works in the end.

Software may not pay as well as being a lawyer, but I can do it well, it's not as stressful, and I really enjoy the work. So I'll just sit on the sidelines and make snarky comments while the real lawyers toil away in the courtroom.

Here comes another one of my radical ideas for criminal justice reform: Striking judges.

No, I'm not advocating smacking judges around, although I'm sure most criminal court attorneys---on either side of the aisle---can think of a few judges that have it coming.

I'm not talking about judges who are strikingly attractive, either, although the attorneys would probably appreciate that too.

Let me explain.

When putting together a jury for a trial, the jurors can be eliminated---struck---from the panel for two basic reasons. First of all, they can be struck for cause, meaning there is a legal reason why they should not serve, such as knowing one of the parties or witnesses, or being unable or unwilling to carry out their duties as jurors. There is no strict limit to the number of potential jurors who can be struck for cause.

The second reason for striking jurors from the panel is because one of the lawyers doesn't want them on the jury. These are called peremptory strikes, and each lawyer is allowed a fixed number of them in a trial.

(Jurors can also be excused for hardship, such as illness or taking care of children or invalids.)

I don't know what the legal justification is for peremptory strikes, but it makes sense to me as an example of eliminating outliers to reduce variance among the jurors. Basically, each side of the case gets to strike the jurors least likely to agree with it---in a criminal case, the prosecution gets to strike the jurors who'd never vote guilty, and the defense gets to strike the jurors who'd never vote not guilty.

The resulting jury should be more of a middle-of-the-road group. This makes them more likely to reach the unanimous conclusion needed for the trial to reach a conclusive result.

It seems to me, however, that if eliminating extremists from the jury pool produces more certain justice, wouldn't the same principle apply to judges as well?

My proposal is to allow the lawyers on a case to have the power to reject certain judges. For example, each case could be assigned a pool of three judges, then the prosecution and defense could each strike one of them. The remaining judge handles the case. The end result should be that not too many cases are brought before the oddball extremist judges.

For this to really work, the system of striking judges has to feed back into the management of the courthouse somehow so that extremist judges are removed from the bench. I don't know enough about how the judiciary works to figure out how to do that. Perhaps every few years the judges who are struck most often could be culled, with special attention given to judges struck by both prosecution and defense.

Actually, as I understand it, there are places where the prosecutor's office already has the power to refuse to bring cases before certain judges, so maybe this isn't such a radical idea after all.

Norm Pattis is annoyed with a proposal to change a rule of the courthouse:

Here's prima facie proof that Connecticut Supreme Court Justice Chase Rogers has lost her mind: She wants to permit folks to bring camera phones into the courthouse.

What is she thinking? The courts are a human zoo. We don't need more distractions in the halls of justice. Not to mention the fact that the marshalls already appear to have trouble enough maintaining any sense of decorum.

I think Norm's the one who's crazy, and I left a comment on his blog saying so, but I decided to say it here as well.

It's almost impossible to get a mobile phone these days without a camera in it, so the rule against camera phones amounts to a rule against all mobile phones. It puts us out of touch with our friends, family, and coworkers for the whole time we're at the courthouse.

Maybe lawyers like Norm regard this as just one more incovenience, or maybe they're careful to choose courthouse-compatible phones, after all, they're there to do an important job.

But most of us who visit the courthouse don't do so on a regular basis, and little that happens in the courthouse is a defining part of our lives, as it is for lawyers and a few of their clients. We're there for traffic tickets, or civil nonsense, or jury duty. Why the heck should we suffer this inconvenience?

For that matter, while I can understand not photographing the proceedings or the jurors, for the other 80% of the time we're there, the court has no business preventing us from taking pictures.  It's public property.

In a way, Norm agrees with this, but doesn't think it's important:

In fairness, the chief is only calling for permission to have the camera phones brought into the courthouse. It would be impermissible to use them in the courtroom during an acutal proceeding. But that really is an invitation to disaster: another rule to enforce in a forum that is already wild enough for my tastes...

This is another gesture on the part of the chief to inspire public confidence in the courts. She's created something called the Public Services and Trust Commission. If she really wants public trust to improve, she should let judges spend their time moving cases along, and not policing the galleries to make sure no one is shooting a prohibited picture.

That puzzles me. Why would the judge be looking out for photographers? Don't Connecticut courtooms have deputies?

Hunting for photographers may be extra work for the court staff, but so what? Is it right to inconvenience hundreds of thousands of citizens to make the jobs of public servants easier?

I have a compromise plan: Relax the rules against chewing gum, wearing hats, and reading magazines in court and use the time saved to watch out for people taking pictures. Or would that be too wild and crazy?

Based on my vast legal experience---reading crime novels and surfing the legal blogosphere---I have occasionally come up with a few radical ideas for criminal justice reform. As with my previous effort, this idea is probably unworkable, unconstitutional, and a sure election loss for any politician who proposes them. But what's a blog for?

When a cop wants to search your private belongings, he basically has two options. If he can meet certain legal requirements, he can order you to submit to a search. But if he's just fishing on a hunch, the only way he can do his search is if you give him permission.

Now suppose there's a bus stopped at a station, and while the driver is off dealing with paperwork, two police officers board it and take up stations at each exit. A third cop boards and starts interrogating the passengers, asking to search their belongings. If he finds bags of cocaine, can they be used in court?

In the real life case on which this is based, admissibility of the drug evidence turned on whether the defendants gave the cops permission to search.

The defense lawyers argued that the search was invalid because the defendants didn't think they could refuse what appeared to be an order from a cop. The court disagreed and admitted the evidence.

(To my way of thinking, when a guy carrying enough drugs to earn felony federal prison time submits to a police search, it's pretty obvious he didn't think he had a choice. But I'm not a lawyer, so I don't understand these things.)

The defense appealed and won in the circuit court, which ruled that passengers wouldn't feel free to refuse a police request under such circumstances, therefore it was a coerced search and the evidence was illegal.

Now the government appealed to the Supreme Court, which ruled in a 6-3 decision that the the search was legal:

...we conclude that the police did not seize respondents when they boarded the bus and began questioning passengers. The officers gave the passengers no reason to believe that they were required to answer the officers' questions. When Officer Lang approached respondents, he did not brandish a weapon or make any intimidating movements. He left the aisle free so that respondents could exit. He spoke to passengers one by one and in a polite, quiet voice. Nothing he said would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise terminating the encounter...

This sets up a reasonable person standard: A search is consensual if a reasonable person would have believed he could refuse the police request.

Think about that for a minute. This case was argued all the way to the Supreme Court, with a reversal at every step up the ladder. Three of the Supreme Court judges disagreed with it. That's about a dozen judges who considered the question, and almost half of them reached what turns out to be the wrong answer.

Yet according to the decision, any reasonable bus rider should have been able to understand what was happening.

Results like this are why the reasonable person standard is sometimes derisively called the reasonable Supreme Court Justice standard: If Justice Scalia was riding that bus, he would have known what to do, so the court may conclude that everyone else could have figured it out as well.

It seems to me that there's a fundamental flaw with how the courts make decisions about trial motions. The general rule is that the jury is responsible for deciding the facts of the case---whether the defendant did the things for which he stands accused---but matters of law---such as what evidence can be presented to the jury---are decided by the judge.

I'm reasonably sure that makes sense. But when the legal principle behind a motion involves making a judgment about what a reasonable person would conclude under a specific set of circumstances...doesn't that sound like the court is making a finding of fact? Shouldn't the question be decided by a jury?

For a more concrete example, consider the situation where the police enter a house and find evidence of a crime. At trial, the defense tries to suppress the evidence because the police entered without a warrant. The prosecutor says they didn't need a warrant because the owner let them in. The owner denies giving permission.

That's a he-said/he-said situation, and it's currently up to the judge to decide whether to believe the police or the defendant. But isn't deciding credibility exactly the sort of thing we use juries for all the time? Shouldn't the question of who to believe be presented to a jury?

Obviously, it can't be the same jury that would hear the evidence if it's allowed. We need a special jury to decide facts for motions. Perhaps the judge could convene a special motion jury.

To save time and money, the jury could be smaller than the main jury, or the selection process could be streamlined, or maybe the jury could be reusable, like a grand jury, answering questions for several trials. Maybe its verdicts shouldn't have to be unanimous to avoid long deliberations.

It would still be a lot of work, and it would be a huge change in the way trials are conducted, but I just can't see a reason why findings of fact in the course of deciding a motion shouldn't require a jury.

Iowa Champion Charles Kenville posts a complaint about the unfairness of drug threshold levels in Iowa:

Because the threshold level for a mandatory 25 year prison sentence on methamphetamine charges is so low (five grams), prosecutors have unconscionable power over a defendant's fate during plea bargaining...

The injustice with the low threshold is that the person trafficking TEN POUNDS of methamphetamine doesn't see any more prison time than the low level user/dealer he has as a customer.  The B felony applies to weights between 5 grams and 5 kilograms (about 11 pounds).  How does that structure make any sense?  When a person buys seven grams and turns around to sell a gram or two to support his own habit, he puts himself in the same boat as the ten pound dealer.  Try telling the prosecutor that only three of the seven grams you possessed were actually going to be delivered so it should be a C felony and not a B.  They won't bite.

He notes that there is a similar problem with crack cocaine thresholds, and then proposes a solution:

The class B felony thresholds need to be more uniform, and more importantly, higher for "crack" and meth.  Whether your policy is one of interdiction and prosecution, or education and treatment, you need to sort out the true drug traffickers from the low level user/dealers. The only way to do that is to have higher, realistic thresholds for increased penalties.

Like many people who fight in the front lines against the travesties of the War On Drugs, Kenville's vision is limited to what seems realistically possible. Pie-in-the-sky wishes for greater justice do him no good. For pundits sitting on the sidelines, such as myself, reality is less of a barrier.

So, although I'm sure having "higher, realistic thresholds" would help, I think a better and clearer way to "sort out the true drug traffickers from the low level user/dealers" would be to require that for some one to be convicted of drug trafficking, they are found not only to possess drugs but are actually caught trafficking in drugs.

But that's not how it works. Quantity, not activity, is all that matters.

[Update: According to Charles Kenville's comment below, I misunderstood his post. In Iowa, they still have to prove trafficking. That's not the case in some other states, so my comments would still apply elsewhere.]

This is part of a trend in criminal law that both fascinates and upsets me. I haven't quite figured out a coherent way to think about it, but right now I'm calling it "trimming the elements" of the crime. (There may be an established term for this trend, but I haven't stumbled across it yet.)

To prove a crime in court, the state has to prove every element of the crime. For example, in a DUI the prosecutor might have to prove that the defendant was (1) operating a vehicle, (2) had consumed alcohol, and (3) was impaired by the consumption of alcohol.

That third element is a little tricky to prove---it requires some form of testing that will hold up in court---so most states have a law against drinking while driving, which eliminates the need to prove impairment. That makes it a little easier, but there's still the problem that a police officer has to observe someone drinking while driving. That can take time and effort, and police departments are loath to work harder than necessary. So a lot of states have eliminated the element of drinking by passing laws against having open containers of alcohol in the passenger area of car.

Now, all a cop has to do is find an open can or bottle anywhere in the car and he can bust the driver. Advocates of such laws want you to think of young punks passing around a fifth of Jack, but you'd be just as guilty if you were the completely sober designated driver for a night of drunken revelry and one of your friends hid a flask of booze inside his coat, or if you were driving a friend home from dinner out and she was bringing home the leftover bottle of wine from the restaurant.

Kenville's problem with the drug laws seems to be a variation on this trend. Catching drug dealers in the process of actually selling drugs is hard work, so the laws have been tweaked to remove the need to prove the actual sale, in this case by specifying that mere possession of a sufficient quantity is proof of intent to sell.

It's also not usually necessary to prove an exchange of money for drugs to prove a sale, because that would require extra work. Merely giving drugs to someone is usually enough to be arrested for drug dealing. If you bring some pot to a friend's house and share a joint, you may be a drug dealer.

The end result is that a convicted drug dealer may not actually have dealt any drugs. In effect, legislators have made the law itself a lie.

Reading a novel is no substitute for advice from a lawyer, but sometimes a good courtroom thriller can show you something important. (My lawyer readers may disagree with me...) A few weeks ago, I wrote about an interesting but unethical police trick that I learned from A Cinderella Affidavit by Michael Fredrickson.

This time I want to talk about some lessons I learned from a scene in Scott Thurow's first novel, Presumed Innocent. It happens near the beginning, so this won't be much of a spoiler.

As the book opens, the protagonist, Rusty Sabich, is a married man who's been having a secret affair with a woman named Carolyn Polhemus from his office. She's found dead, murdered, and he is wrongly accused of the crime.

The prosecution's theory of the case is that Rusty was having an affair with Carolyn, something went wrong, and he murdered her. However, his lawyer reviews the evidence and points out a surprising weakness in the prosecution's case: There's no evidence of the affair.

This means that Rusty could be acquitted because the prosecution can't prove the affair, even though Rusty knows they're right about the affair.

The situation is purely fictional, but that scene opened my eyes to something that seems pretty important: If you are wrongly accused of a crime, your factual innocence may not be the only thing wrong with the case against you. You could be found not guilty because the prosection can't prove some fact to the jury, even though you personally know it to be true.

(That may not seem very honorable, and you may prefer to prove your actual innocence, but as far as I'm concerned, the consequences of a conviction are so awful that I'll take any way to get free and clear.)

This possibility has three practical implications:

First, don't talk to the police. Use your right to remain silent. If Rusty had talked to the police before seeing his lawyer, he might have admitted the affair without realizing he was giving up an important part of the case against him. No matter how much the police already seem to know, they may still be missing some crucial element of the crime. Your trial could turn on such details as whether you knew the house was occupied, whether you brought a weapon to the scene, or where you live.

Second, get a criminal lawyer involved as soon as you can, even before you are arrested if possible. In the book, Rusty didn't realize the police had no evidence for the affair because he knew the affair had happened. You need somebody with an outside view of the case to notice these things for you. Also, unless you are an expert at criminal law yourself, you need somebody who understands where the landmines are.

Third, this sort of thing is why it's a bad idea to testify unless you have to. In the novel, Rusty is essentially the only living person who knows about the affair. If he testifies, the prosecutor can ask him point blank if he was having an affair with the victim, and he's supposed to tell the truth. In real life, the traps won't be that obvious, but you can bet the prosecutor will try to lead you into every one of them.

If you live in Wise County, Virginia, please get out there and commit a few felonies. Long-time blawger and county prosecutor Ken Lammers obviously has way too much time on his hands!

Update: Too late, April Fools Day is over, and it's gone.

If you are a prosecutor, it's possible you found this because I'm a potential juror and you were Googling my name. I already wrote something like this in response to a question on Mark Bennet's blog, so I might as well spell it out here. (And yes, I'm in kind of a bad mood.)

This argument is going to be more emotional than logical, but when it comes to describing and predicting my own behavior, there are times when my reason is slave to my passion.

I understand that as a juror I have a role to perform, and that it’s important to do it well and with integrity. I'm supposed to obey the judge, listen to the evidence, and follow the law.

I can assure you, I'm going to try. For whatever it's worth, the only time I was a juror on a criminal case, we voted to convict, and I was one of the people who reached that conclusion early and helped convince others.

That said, you should know that I believe in my heart that it is wrong to punish people for crimes that have no possible victims. My position is a bit nuanced, but to a first approximation you can safely assume that I don't believe it's right to punish people for gambling, prostitution, drugs, or many other things that might be called "vice."

If you allow me on a jury in, say, a drug case, this puts me in something of a quandary. I want to do my duty, but I feel that under some circumstances doing my duty will lead to an immoral result. I truly don't know what I would do in most cases.

To save you the trouble of reading my entire blog, however, I might as well warn you that there is clearly some point at which I would balk. There is some point at which I would nullify, voting to acquit even if the law and evidence clearly indicate guilt.

It is my firmly held belief that much of the War On Drugs is, to be blunt, evil—as evil as witch burnings and slavery and Kristallnacht.

Some of this evil is done by prosecutors, who seek to obtain horrible punishments for the most minor of crimes. (If you prefer to blame the legislature, go ahead. It's just as bad either way when it comes in front of a jury.) Exhibit A in the list of prosecutorial horrors is the case of Richard Paey, wheelchair-bound father of three, sent to prison for 25 years for forging his prescriptions for painkillers.

Would it have been wrong for the jury to nullify in that case? If so, does that mean you believe Paey deserved his harsh sentence? If he didn't deserve it, how is it right for the jury to be presented with a chance to stop it and do nothing?

Maybe you think Richard Paey and other perpetrators of vice got the sentence they deserved. Then let's try an example of a different sort: Denmark Vesey. In Charleston in 1822 he was the leader in a conspiracy of thousands of slaves to rise up, temporarily seize the city, and then grab ships in the harbor and sail away to freedom. The uprising was disrupted before it could start, and the leaders were put on trial. Vesey and 34 others were convicted and hanged.

There was never any chance a Charleston jury would nullify, but if it had, would that have been wrong? Should slaves be executed for insurrection against their masters? If not, then why would it be wrong for a jury to stop the executions despite the law?

Unless you are truly devoid of moral reasoning, there must be some level of unjustness at which you will abandon the law to avoid complicity in unconscionable evil. I haven't been in a position to find out where that limit is for me, but at the moment I write this, I suspect it is within the bounds of our War On Drugs.

If you place me on a jury and ask me to do what Paey’s prosecutor asked his jury to do, I’d like to think I’d have the moral courage to nullify. And if asked to justify my nullification, I would say that I nullified because the law did not allow me to have you jailed for your cruelty.

So if you want to consign someone to a horrible fate for a crime that harms no one, and you don't want me to nullify, don't ask me to take part in your foul deed. Do it without me.

Among the issues near and dear that I shall post on presently are the disastrous decision in New Jersey to abolish the death penalty, giving much holiday joy to the various deviant murderers awaiting their just desserts on Jersey's sadly slow death row, the Supremes taking on the supposed cruel and unusual nature of lethal injection, thoughts on waterboarding (is it really torture?), and of course, real true stories of life on the front line of criminal prosecution.

Heh, Virginia prosecutor Tom McKenna is back.

I know that a few criminal defense lawyers read this blog, so as a service to them, I'm going to take this time to explain an exciting new 3-step process for building a successful private practice.

Step one, start law firms that focuses on an area of criminal law such as traffic offenses or DUI, like Virginia lawyers David Albo and H. Morgan Griffith.

Step two, get elected to the state legislature.

Step three, work to pass harsh laws against the very offenses you make money defending, so more people will have to hire lawyers.

With this simple proces, you should soon begin raking in the dough. You can thank me by donating a portion of your earnings using the "Make A Donation" button off to the left there.

It must be a week or three since Norm Pattis blogged this, but I've been meaning to say something, and it might as well be now.

Norm starts with a hypothetical call about a wrongful death suit from a potential client:

He had bronchitis. The doctors failed to diagnose it on time. As a result, he died; his heart just gave out. The decedent was only 47 years old. You quickly calculate loss of earning potential for the twenty or so years he could have worked.

What did do for work, you ask? He didn't work. Why is that you ask. He couldn't, you see he was mentally, er, challenged. Your heart sinks. Death is tragic, but death without ascertainable economic loss is a tragedy only a plaintiff's lawyer can fully appreciate.

But he so loved life, the caller tells you. Each time there was a fire in the neighborhood, he would run to the scene and direct traffic. You are tempted, but still there is nagging doubt. How much can such a case be worth?

It turns out this case is actually real (but not one of Norm's) and it's just been decided:

A Connecticut jury just answered, awarding the estate of the decedent in this case $3.5 million for the loss of enjoyment of life. No part of the verdict reflected damages for economic loss...

Norm doesn't like that:

Forgive my cynicism, but the verdict seems like a triumph of politically correct sympathy over common sense. The decedent has lost the ability to enjoy life...But tell me, reader, how do you compensate a man for a life not lived? It just can't be done.

I do not mean to suggest that a mentally handicapped person can't enjoy life. But this verdict simply makes no sense. ... [P]erhaps it's time to revisit whether it makes sense to provide compensation for the loss of enjoyment of life. The simple fact is a death cannot be undone, even by creative lawyers playing on the heartstrings of a jury.

I'm apalled beyond words.

I know our legal system tends to calculate civil damages for a death based on lost earning potential, but until now I didn't think about how awful that is. Norm's stark summary makes me feel a gut-level revulsion that's hard to describe.

"Loss of enjoyment of life" does matter. It's the only thing that matters.

The whole point of working for a living is to earn money, and the whole point of earning money is to buy goods and services for consumption. And the whole point of consumption is to improve the quality of your life. The loss of income is only important because it reduces your ability to enjoy life.

What Norm's concerned about, I think, is that "enjoyment of life" is so subjective that the courts will drift away from any sort of predicatable standard for calculating it. Lawyers will be putting on grand shows with weeping and wailing and gnashing of teeth. That will make a mess of our civil courts. Our legal system works better when there are bright lines, clear precedents, and well-defined procedures.

Norm's a very skilled lawyer, so I'm sure his prediction of chaos is correct. I don't doubt it for a minute.

However, just because something is hard to measure and quantify doesn't mean it doesn't exist. Enjoyment of life is real, and it's important.

I have very little experience at civil litigation and wrongful death (thankfully). Perhaps our legal system works it all out in the end. Still, I can't help but think that enjoyment of life is too important to ignore without some sort of dire consequences.

Given the principles this country was founded on, can it really be right to ignore the pursuit of happiness?