There’s an interesting bit of detail in this post about legal tech from Brian Tannebaum, talking about the policies governing electronic devices brought into the courtroom:

In the Southern District of New York, you can bring in one device, but if you are not a member of the SDNY Bar, you have to file a motion to bring in your one device. Pick your poison – cell phone, iPad, laptop. […] So decide what’s more important – keeping in touch with the office, witnesses, opposing counsel, clients, or having your documents available electronically and the ability to type.

Let’s get past the fact that the court doesn’t seem to realize that lawyers bring electronic devices into the courtroom because they need them to do their job and go right to the real question: Do lawyers in the Southern District of New York hire stooges to carry additional devices for them?

(My wife and do something like that at the grocery. If a sale item has a limit of one per person, we buy two of them by telling the cashier we’re paying for them separately. I’ll leave it as an exercise for the reader to figure out which one of us is the stooge.)

Actually, from a quick glance at the rules, it looks like only attorneys are allowed to bring in devices. This suggests to me that more than a few second or third chair lawyers aren’t really on the team because of their legal skills. In fact, this sounds like a perfect job for a law student: “Hey kid, you want to have front row seat at a federal trial? Great! Carry this.”

Granted, the rules do say that “The Personal Electronic Device may not be shared with any other person,” but these are lawyers we’re talking about. I’m sure they’ve figured out some way to game that rule by now.

Over at a public defender, Gideon has posted his second attempt to create a jury instruction for the meaning of “reasonable doubt,” based on feedback he got from his first attempt, which has a lot of interesting comments.

The discussion is far too technical for me to contribute to, for reasons that Scott Greenfield spells out when describing an attempt he was involved with:

The mandate was to come up with an instruction that was consistent with existing caselaw while being comprehensible on a 6th grade level and across varying ethnicities.

That’s way beyond me. I’m sure I have nothing helpful to contribute to the discussion. But I’ve never really let that stop me from blogging, so…

Take a quick look at Gideon’s proposed instruction. You don’t have to actually read it, but I want you to see what it looks like. Here it is:

The State has the burden of proving the defendant’s guilt beyond a reasonable doubt. Beyond a reasonable doubt is how convincing the evidence has to be to you in order to find an accused guilty of a crime. So what does “beyond a reasonable doubt” mean?

What it means is this: The evidence must fully and firmly convince you of the defendant’s guilt before you may return a verdict of guilty.The evidence must cause your state of mind to be such that you can confidently say that you are certain of the defendant’s guilt. Although the State does not have to prove the defendant’s guilt to an absolute or mathematical certainty, the State must prove his guilt to a state of near certitude in your own minds. In other words, while the law does not require the State to prove a defendant guilty beyond all possible doubt, it is not sufficient to prove that the defendant is possibly or probably guilty.

After considering all of the evidence, you may be fully and firmly convinced that the defendant is guilty of the crime charged. On the other hand, based on the evidence or lack of evidence, you may think there is a realistic possibility that he is not guilty. This realistic possibility must be based on the evidence or lack of evidence and not arising from mere possibility, bare imagination, or fanciful conjecture.

Thus, if you are fully and firmly convinced of the defendant’s guilt, you must return a verdict of guilty. If you find that there is a realistic possibility that he is not guilty, the law demands that you return a verdict of not guilty.

It seems nice enough. It’s clearly written and full of evocative phrases. But when you step back from its context as a jury instruction, I think there’s a larger, more fundamental problem. There’s just something wrong with trying to explain such an important topic with so few words.

Excluding the instruction itself, Gideon’s post runs to 800 words, and he and his visitors added another 2000 words of comments. In an earlier post, he wrote another 900 words, which brought another 1500 words of comment. That post was in response to a 700 word post from Scott Greenfield that had another 700 more words in the comments, and it spawned a 2600-word behemoth post from Rick Horowitz, plus 600 words in the comments. Add it all up, and just these few posts amount to a discussion of reasonable doubt that runs to almost 10,000 words.

Yet if the judge uses Gideon’s proposed instruction, the jury will have to figure out what reasonable doubt means from only 272 words. That doesn’t seem…reasonable.

When it comes to explaining nuanced topics like reasonable doubt, there are well-known teaching techniques. For example, you approach the topic several times from different directions, you emphasize key points, and you hit on those points over and over so they sink in. You explore the context in which the subject arises, perhaps considering why reasonable doubt is an important feature of the justice system, so jurors understand why they’re supposed to apply the standard the way you want them to. And you also drop the discussion into the details, illustrating the rules you want to teach with examples — what counts as reasonable doubt, and what does not. You explore corner cases, and you show how the rules of reasonable doubt are derived from the larger goals of our system of justice.

You try to link the subject you’re teaching to things your students already know. You discuss how certitude and doubt already play roles in jurors’ lives, and you explain how reasonable doubt is related to those levels of doubt. You use analogies, diagrams, and stories.

Then you let them practice. You give them an example scenario, and let them figure out whether there’s reasonable doubt. Have them discuss it with each other and with you. You answer their questions, and ask instructive questions of your own. When you see them applying a principle incorrectly, you explain what they’re doing wrong, and you suggest ways to avoid that mistake in the future.

Finally, you test them. You confront them with a series of problems, and you find out which potential jurors demonstrate competence, which ones need more training, and which ones wash out of the jury pool.

In a nutshell, that’s the kind of training program it takes to get a group of people to become competent at a job. So why don’t we train jurors that way for their job?

In the industrial world, we sometimes prefer on-the-job training. It actually includes a lot of the same processes, but in the context of actually doing the job. Employees start out with simple tasks and work their way up, and competency testing takes the form of a supervisor’s evaluation. That doesn’t seem to be what we’re doing with jurors, however, because there’s no evaluation of juror performance, and they don’t work their way up — your first trial as a juror could be a capital murder or a racketeering case with mountains of complex evidence.

Another possibility is that training jurors is just too costly. That’s not quite the whole story, given the extensive training received by almost everyone else involved in the trial — lawyers, judges, court reporters, bailiffs — all of whom receive weeks, months, or years of training. Of course, the training for all of those people is reusable. Once trained, they can participate in many trials. We don’t do that with jurors. We don’t hold trials using fact finders drawn from a pool of trained professional jurors.

Every once in a while, someone proposes switching to professional jurors, but the general consensus seems to be that we prefer to use jurors drawn at random from the community. The argument is usually that professional jurors would be captured (or corrupted) by the system that employs them, and they would soon become insiders — just another part of the incarceration machine. Jurors plucked from the community take their duty of impartiality more seriously, and they represent the community better because they are a random sample. They remain part of the community from which they are drawn, as opposed to professional jurors, who self-select to join the criminal justice community.

I like this argument, but I don’t know if it’s true. In any case, we end up with jurors who are largely ignorant of the law and the workings of the criminal justice system, and who have to be instructed on reasonable doubt (and everything else they need to know) in the limited amount of time available for trial. Overall, it seems like a very sloppy process, and Gideon’s attempt to write a good jury instruction on reasonable doubt seems like a hopeless dream.

Or maybe that’s the wrong way to look at it. Maybe I should take the jury system more seriously. After all, juries have been used for centuries, and they exist in one form or another in most of the free countries of the world.  Maybe jury ignorance is a feature not a bug: Jurors are drawn at random from the community, and the limited instruction is intentional, presumably to encourage jurors to bring their community values into the process.

In that case, the true definition of reasonable doubt is not really up to lawyers or judges or legal scholars. We tell juries they must be convinced of a defendant’s guilt “beyond a reasonable doubt,” and they tell us the verdict. As a practical matter, the meaning of reasonable doubt is whatever the jurors say it is. And since this is the result of the evolved design of the jury system, perhaps this practical meaning of reasonable doubt is in fact the only true meaning of reasonable doubt. Reasonable doubt is whatever the jury does after you give them the reasonable doubt instruction.

I don’t know if you learned anything from reading this, but I feel better now. This way of thinking has a certain elegance, and it makes Gideon’s task seem less hopeless. He doesn’t have to teach a jury everything they need to know about reasonable doubt in 272 words. He just has to get them to use what they already know.

Professor Jonathan Oberman from the Cardozo School of Law has a great opinion piece in the New York Law Journal about the two lawyers who were forced to resign as a result of the Bronx Defenders’ “Hands Up” kerfuffle.

These lawyers are smart, committed and hardworking, and have earned their clients’, their community’s, and this city’s trust as a consequence of their dedication and the quality of their work. The two lawyers who appear in the unspeaking cameos may have made an ill-considered decision to involve their office in a video that, in the current environment, placed its good works at risk. But they are decent, caring, thoughtful people—hardworking lawyers motivated by concerns for social and racial justice and committed to achieving a world where access to due process does not depend on the color of one’s skin or the color of one’s uniform.

Like me, Oberman points out that the lyrics are about people in the black community being angry enough to talk about killing cops, but they don’t actually advocate killing cops. “Hands Up” is literally (at least in part) about putting your hands up.

In a less charged moment, with a mayor unconcerned about regaining the trust of the city’s police rank and file, I suspect much less would have been made about the lawyers’ decision to appear in the video.

When I first heard about the controversy, one of the things that struck me hardest was the incredible overreaction — demands for the city to stop funding the Bronx Defenders — over a monumentally trivial matter. (And Scott Greenfield has some interesting points about the level of scapegoating involved.)

As near as I can tell, all reported accusations against the Bronx Defenders trace back to the New York City Department of Investigation’s press release and findings. It appears to be the result of reviewing public information about the Bronx Defenders, reviewing emails sent within the organization and between the organization and members of the city government, and interviews with key staff members including Kumar Rao and Ryan Napoli, the two lawyers in the video, and Executive Director Robin Steinberg.

The two lawyers who participated in the video admitted to being aware of the lyrics to “Hands Up” before participating in the video. They told the DOI that they believed they would be given the opportunity to edit anything offensive from the video before it was released, but they didn’t have any legal agreement to enforce that requirement, and there’s apparently no evidence of them wanting to remove the cop-killing lyrics.

Here is a brief description of what was known about the lyrics and video, according to the DOI report*:

Rao and Napoli stated that on the date the video was filmed at The Bronx Defenders office, they were shown the portions of the video filmed at the office that day. Rao said that they were also shown some other snippets of previously recorded scenes, including one where individuals portraying NYPD police officers were taking someone into custody. Rao stated that they were not shown images of the singers pointing guns at the head of a police officer, which ultimately appeared in the video released to the public.


Steinberg stated that it was her understanding that no one at The Bronx Defenders saw the complete video before its release, including the images of guns pointed at the head of an individual portraying a police officer. Rao and Napoli said that they did not see the entire video until after its release.

The Bronx Defenders are certainly doing a job where things can go wrong in a big way. They take on some very heavy responsibilities for indigent defendants, and bad things happen if they screw up. Mistakes could result in clients losing their families or spending undeserved decades in prison. Poor leadership could allow a culture of sloppiness to establish itself, and their criminal defense practice could decay into a meet-and-plea mill. The organization’s officers could mismanage funds, dole out favors to friends, or outright steal money.

Those things would all be serious problems demanding a prompt and decisive response. But a couple of lawyers opening the office on Sunday so they can be in a gangster rap video for a local artist…not so much.

One thing everybody agrees on, supported by all available evidence, is that Robin Steinberg had not seen the lyrics. It doesn’t seem unreasonable to me that the director of a 250-member organization might delegate a side project like this this to her subordinates. The DOI findings, however, fault Steinberg for a lack of due diligence.

The DOI findings also fault Steinberg for failing to take disciplinary action against the lawyers involved. I think this is overreaching by the investigators. The Bronx Defenders are a private organization, and unless internal disciplinary procedures are in the scope of the contract with the city, it’s none of the city’s business how Steinberg disciplines her people. That’s between her and the board of directors. Unlike the bureaucratic hacks who run the city government, not every leader regards assigning blame and meting out punishment as the most productive way to address failures. Accountability is important when it comes to deliberate wrongdoing, but mistakes are often better handled through techniques such as cause analysis, process modification, and training.

Several commentators unsympathetic to the Bronx Defenders have drawn attention to the DOI’s finding that Director Steinberg made misleading statements to city officials during the investigation. To my mind this is the most damning accusation: Everything else can fairly be described as a mistake, but there’s no justification for lying.

The thing is, when you actually read the DOI findings, there’s not much to it. All of Steinberg’s supposedly misleading statements were made after the video came out, when Steinberg was responding to questions from several officials. Here are excerpts of what the DOI findings have to say about them:

On December 5, 2014, The Bronx Defenders released a public statement regarding its participation in the video, which did not address the song’s lyrics. […] However, the statement did not address the song’s lyrics, which, as discussed above, were known to Rao and Napoli when they agreed on behalf of the organization to participate in the video.”

I don’t quite see how failing to address the lyrics is misleading. The lyrics were public knowledge, easily discoverable by anyone interested.

None of these email communications fully described the circumstances of The Bronx Defenders’ involvement in the video. They did not mention that Rao and Napoli were aware of the song’s lyrics — months before the release of the video — when they commenced initial discussion with the producer about the video.

I’m not sure what to make of the fact that the emails didn’t mention that Rao and Napoli were aware of the lyrics. It’s not a lie, but it doesn’t sound like the whole truth either. This seems more legit than the previous accusation.

Further, none of the emails mentioned that Steinberg approved the organization’s involvement in the video without reviewing the lyrics or inquiring further about the songwriters. Instead the emails provided a selective and misleading recitation of the circumstances surrounding The Bronx Defenders’ involvement in the video.

It would be one thing if Steinberg had lied about reviewing the lyrics, but faulting Steinberg for failing to list things she didn’t do seems like a bit of a stretch. And frankly, if she had come out and said she never saw the lyrics, that would seem like she was covering her ass and trying to blame subordinates.

For example, in her email to Ms. Glazer on December 10, 2014, though she was aware months before the release of the video that Rao was coordinating with the producer regarding The Bronx Defenders’ involvement in the video, Steinberg wrote, “Late last week, I became aware of a hip hop video that was making its way into the world called ‘Hands Up.'”

This seems like reasonably accurate language. The video had been in production for a while, but it didn’t start coming out — “making its way into the world” — until a couple of months ago. It’s just a turn of phrase, not an attempt to hide her earlier knowledge of the video. In fact, she clearly admits to earlier knowledge of the video in that very same email message, as described by the very next sentence in the DOI findings:

Later in the email, Steinberg wrote that “[t]he version of the video that is on the internet — and that two of our lawyers appear in — is not the version we saw when they agreed to appear in the video.”

So in this case it was the DOI findings that were misleading, accusing Steinberg of trying to hide something that she in fact admitted to.

In any case, the DOI has problems with her admission as well:

This statement suggests that The Bronx Defenders saw a version different from the one released to the public when, in fact, Steinberg acknowledged during her interview that they had only seen limited footage and did not see a full version of the video before its release.

So the essence of the DOI accusation is that she said she saw a version of the video, when in fact what she really saw was some fragments of the video. “Version” vs. “fragments.” I see the difference, but it’s not much of a difference. And either way, the salient point remains that the offending scenes from the final video were not present in the video material the Bronx Defenders reviewed.

Steinberg also did not mention that Rao and Napoli had her approval to participate in the video. Moreover, as with the public statement, Steinberg did not address the lyrics or the attorneys’ knowledge of the lyrics. As such, Steinberg’s statements, while perhaps not legally perjurious, were clearly misleading.”

This is just more of the same, and as far as I can tell.

I believe I have now quoted everything in the DOI report that describes Steinberg’s supposedly misleading statements. Perhaps Steinberg responded to the inquiries from city officials with the carefully correct-but-one-sided statements of a lawyer rather than with the full candor they deserved. But with the possible exception of the failure to mention that Rao and Napoli had her approval, the accusations of misleading statements are so thin as to be nonexistent.

I’ll wind this up with one more quote from Oberman’s piece:

But no matter what meaning one extracts from the video, it is difficult to see how one can leap to characterizing the Bronx Defenders lawyers as “bad apples” and demand a plan of action at the cost of an implicit threat to de-fund the office. Its 250 lawyers, social workers, advocates, investigators and other staff serve clients charged with crimes and assist community members with housing, family, child custody, immigration, school-related and re-entry issues. The office has trained scores of public defender offices around the country to adapt its creative, cost-efficient model. At a time when so many communities are struggling to give meaning to the 50-year-old promise of Gideon v. Wainright, Steinberg has built an office that delivers that promise on a daily basis.

Reasonable people should recognize overreaction when it stares them in the face. And no responsible party should have sought to score political points or regain political capital by threatening the health of Bronx’s underserved population or the dedicated Bronx Defenders staff and lawyers who serve them.

Calls for some ameliorative, managerial measures for the Bronx Defenders might have been proportionate to what in hindsight was an ill-advised decision to participate, no matter how tangentially, in the video. But too many were willing to threaten the Bronx Defenders’ ability to continue to serve a borough and its people who rarely get their fair share of New York City’s resources.

Arguably, as I’ve said before, the biggest screw up on the part of the Bronx Defenders was letting something like this jeopardize their mission. NYPD union president Pat Lynch may be an asshole, and Mayor Bill de Blasio may be an unprincipled politician, but neither of those things were a big secret. When you’ve taken on the task of defending 30,000 indigent people every year, you should try very hard not to make it easier for the assholes and the unprincipled to attack your funding. I suspect they’ve learned that lesson now.

*Note: The DOI press release is typeset in the PDF document, but findings themselves are an image of a typeset document. All quotations from the findings are thus hand-transcribed by me and likely include my mistakes.

I’ve been trying to understand why grand jury secrecy works the way it does, and there are parts of it that just don’t make sense to me. At a fundamental level, the idea of the government telling people there’s stuff they can never, ever talk about just doesn’t seem right. Our right to free speech isn’t absolute, but there usually has to be a pretty good reason for an exception.

As an aside, just why doesn’t the First Amendment apply? While discussing another topic, Mark Bennett explains that there are nine accepted exceptions to the First Amendment’s speech protections:

  1. Advocacy intended, and likely, to incite imminent lawless action;
  2. [Distribution of] obscenity;
  3. Defamation;
  4. Speech integral to [non-speech] criminal conduct;
  5. So-called “fighting words”;
  6. Child pornography;
  7. Fraud;
  8. True threats; and
  9. Speech presenting some grave and imminent threat the government has the power to prevent.

I don’t see how the prohibition against revealing grand jury proceedings fits under any of those. I assume this is because the speech restriction inherent in grand jury secrecy comes about through a completely different legal mechanism, presumably the same one (or a similar one) that enables trial jury secrecy, makes it a crime to talk to a juror about a case they’re hearing, and allows courts to issue gag orders. I’m guessing this is all part the pre-existing common law that underlies much of the U.S. constitution.

Anyway, I’m more interested in the policy argument than the legal reasons things are the way the are. To that end, Jack Marshall’s argument against a Ferguson grand juror going public organizes some of the arguments rather nicely.

Much of the justification for grand jury secrecy is OPSEC:

Secrecy prevents those who are being investigated from interfering with witnesses and otherwise tampering with and attempting to corrupt the investigation. […] It decreases the likelihood that one who is about to be indicted by a grand jury will flee and thereby avoid being brought to trial on those charges.

These are great policy reasons for maintaining grand jury secrecy while the grand jury investigation is in progress, but the harms they protect against are no longer possible once the investigation is over. Because physics. And yet grand jury secrecy is forever.

It protects witnesses who might be reluctant to testify if they believed their comments would be made public.

Grand jury secrecy already has some holes. Testimony can already become public in a variety of ways. If the case goes to trial, the witnesses would be expected to repeat their testimony in open court, and their grand jury testimony can come into play. It’s my understanding that in some states grand jury testimony becomes a matter of public record if the defendant is indicted.

If even one grand jury is able to have the ban on secrecy lifted, every grand jury will labor under the fear of those involved that jurors will speak to the media and reveal harmful details.

Why exactly would revealing details be a bad thing? We generally consider accountability to be a good policy that helps ensure our institutions are doing what we want them to. In fact, almost every other player in the court system has to operate in the sunshine: Cops, prosecutors, witnesses, judges, petit jurors, and defense lawyers all have to do their part with the knowledge that once it’s all over, anyone involved can reveal their words and conduct to the public. I’m not sure why accountability is good for everyone else but bad for grand juries.

Besides, as I said, grand juries already labor under the knowledge that what they do could be revealed. And many states manage to indict people using preliminary hearings. If these non-secret hearings work okay, then I don’t seen why non-secret grand juries couldn’t also work.

It also protects innocent individuals whose names may be implicated in a grand jury investigation but who will never be indicted.

Protecting the innocent. Now that is a justification I can get behind.

Much of the current discussion about loosening grand jury secrecy — or reforming the grand jury system in other ways — is in reaction to suspicions about the grand jury that did not indict Ferguson police officer Darren Wilson for killing Mike Brown, or the grand jury that no-billed NYPD officer Daniel Pantaleo for killing Eric Garner. But as Elie Mystal points out, grand jury investigations of cops are the exception, not the rule:

We gain nothing, but stand to lose a lot by releasing grand jury testimony. In the Ferguson and Garner situations, we’re dealing with cops as potential defendants. And that’s why the system favored them and the prosecutors did everything they could to help them. In most situations grand juries are dealing with regular people who are about to be totally railroaded by the system. Innocent or guilty, most grand jury testimony involves a prosecutor, unhinged from any kind of representation on behalf of the defense, painting the worst possible picture of the defendant in order to force an indictment. Grand juries aren’t about truth, they are about giving prosecutors leverage to force a defendant into a settlement on crimes they may or may not have committed.

You want to set a precedent where you make that kind of crap public? Are you insane? You want to give prosecutors more power to sully the name of potentially innocent people as they preen for the cameras and try to do things like run for Congress?

Fair enough, and I’m inclined to agree. Except…

Why are the Ferguson grand jurors still muzzled? All of the witnesses have been heard, the defendant has not fled, and all of the grand jury testimony has been made public. At this point, I think all that is being protected by the policy of grand jury secrecy is the identities of the witnesses and the deliberations of the grand jurors. I’m not convinced that the government’s interest in protecting either of those things is strong enough to overcome our default preference for free speech and transparency. Why should we only hear the prosecutor’s version of what happened in the grand jury hearings?

Arguably, we shouldn’t go changing the rules retroactively, since witnesses and grand jurors have presumably relied on the secrecy guarantees, but that doesn’t mean it’s the right policy, and that’s not a reason to keep doing things the same way in the future. Once the grand jury testimony is public, I can’t see much justification for keeping the grand jurors from talking about it.

(Hat tip: Scott Greenfield.)

The Bronx Defenders, a non-profit law firm in New York, are taking some heat because two of their lawyers, Kumar Rao and Ryan Napoli, acted in a few scenes of a rap video which were filmed in the firm’s offices. The song, “Hands Up,” is not my kind of music, but if you want to watch it, here it is:

Just looking at the freeze frame should give you some idea what the controversy is all about. The lyrics include lines like “For Mike Brown and Sean Bell, a cop got to get killed” and “Time to start killing these coppers.”

Needless to say, this has not gone over well with the NYPD, prosecutors, and various other participants in the criminal justice system.

On Thursday, New York City investigators sharply criticized the two public defenders for participating, concluding that they knew beforehand that the lyrics endorsed deadly retribution for the death of Mr. Garner, in July after a confrontation with police officers.

The city’s Department of Investigation also determined that the founder and executive director of the Bronx Defenders, Robin Steinberg, approved the organization’s involvement without reviewing the lyrics and later misled city officials about her role. The city has demanded that the Bronx Defenders, known for its aggressive defense of low-income and minority clients and receives about $20 million a year in city funds, take disciplinary action against the two lawyers by Feb. 4.

I can understand why people would get upset about lyrics that endorse killing cops, and everybody has a right to tell Uncle Murda, Jay Watts, and Maino to take their stupid song and shove it up their ass.

That said, this pisses me off for so many reasons.

For starters, most songs are fiction. I’m not just talking about movie musicals and theatrical songs. Lots of popular music — rap and country more than most, I think —  is storytelling, with the artists taking on a persona as part of the performance. They play a character in a story.

The story told by the lyrics could be true, but it’s more likely to be an exaggeration, if not complete fiction. Eminem didn’t really kill his ex-wife. Bruce Springsteen has a blue collar background, but he’s spent most of his life as a musician, not a factory worker. Alanis Morissette probably gets pissed off now and then, but she isn’t really as angry as she was on Jagged Little Pill. Bob Marley did not shoot the Sheriff, Johnny Cash never shot a man in Reno, and NASA is not planning a rescue mission for Major Tom. (It is, however, the dawning of the age of Aquarius.)

Actually, let me step aside from my main point for a few paragraphs to point out something about the lyrics of “Hands Up” that seems to be missed in all the ruckus: Despite what the quoted phrases seem to mean when taken out of context, the song as a whole doesn’t actually advocate shooting police officers. I can’t believe that I’m explaining rap to anybody, but if you’re going to raise hell over a song, you really ought to pay attention to the lyrics. Uncle Murda starts “Hands up” like this:

I spit that shit the streets got to feel
For Mike Brown and Sean Bell, a cop got to get killed

In other words, he’s talking what the urban black community is feeling. People are angry about young black men like Mike Brown and Sean Bell getting killed by the police, and some of them are angry enough to kill cops. A little later, Maino raps about someone more specific:

My lil’ homie told me he ready to riot
Ferguson was on his mind, he ready to fire

I’m too old and white to have any idea what the relationship is between Maino and his “lil’ homie,” but it’s clear that he’s describing someone else’s violent thoughts, which is not the same as advocating violence. (In this, “hands up” is unlike certain other Uncle Murder songs.)

I’m not saying “Hands Up” is preaching a message of non-violence. But neither is it telling people to kill cops. It’s a five minute song about how police killing young black men is making them angry enough to want to respond violently. The video repeats the scene of two young black men pointing their guns at a young white NYPD officer’s head several times, but they never pull the trigger. It’s not advocating killing. It’s saying that people are angry enough to kill.

For that matter, the majority of the song is not about anger or retaliation but about the reason for the anger: Cops killing young black men without consequences. A few more lyrics:

Cause I’m black, police think they got the right to shoot me
No jail for them, their punishment is desk duty

These cocksuckers supposed to protect us
Killing unarmed black men, making mothers holler
And this who the government paying with our tax dollars
All these unjustified shootings
Then they call us animals when we start looting
Those kids ain’t had no gun and the police knew it

Black boys running from white cops
Who are they to determine just if our life stops
Please your honor, tell me if I’m a goner
“I can’t breath, they’re choking me”, words from Eric Garner
You know this shit just ain’t right
My son ask me this morning, “Daddy, we safe, right?” (No)
How the fuck I will tell him we ain’t got the same rights
They put our babies in coffins, this shit just ain’t life

That’s also what much of the video is about, and most of the violence in the video is by police, captured from real life on cell phones. The two public defense lawyers who appear in it are comforting a woman who appears to be grieving.

The New York Times story talks about the Bronx Defenders getting that $20 million a year as if it was some kind of benefit that the city was doling out. It’s important to realize that the Bronx Defenders are the Bronx County public defenders. [Update: They’re actually one of two organizations that provide public defense.] They have the contract to handle indigent criminal defense throughout the borough. They get that money because Gideon v. Wainwright (the Supreme Court decision which established the public defender system) requires the City of New York to make sure that someone does the job that Bronx Defenders are doing. They’re as much a part of the justice system as the police or the District Attorney’s office.

It’s not like the Bronx Defenders spent public money to make a music video about killing cops. Most of their money does come from a pair of government contracts, but the cost of making the video wasn’t actually billed to those contracts. This was just a side project by a few employees who got the boss to let some local rappers make a video on the premises.

The Bronx Defenders do a lot of outreach and get involved in the community, so it’s not hard to imagine that if some employee came to them and said a friend of hers is a video producer who would like to shoot a video in the building for a few hours on a weekend — and would some of the lawyers like to be in it? — they might agree without giving it a whole lot of thought.

Mr. de Blasio, whom many police officers accused of tolerating anti-police rhetoric by some protesters, was pointed in his criticism of the Bronx Defenders, saying that unless the group promptly addresses the concerns, “the city will take all legal and contractual actions available to it.”

The city could cancel its contract with the Bronx Defenders, which serves about 35,000 clients a year.

Last year the city of New York procured more than $17 billion from thousands of vendors, and I’ll bet a lot of them have employees who’ve said things that the Mayor and the NYPD don’t agree with. So why is the city singling out the Bronx Defenders?

I don’t think it’s because of some low-budget video by some moderately successful rappers. This is really about the job the Bronx Defenders do every day. They’re well known for providing defendants with zealous representation and they offer a broad base of services to people who are accused, likely to be accused, or convicted of all kinds of crimes. When they do their job well, they undoubtedly piss people off. And now somebody’s decided to take this opportunity to give them a little payback. The Mayor needs to get the police back on his side somehow, after all.

(Here in Chicago, the Law Office of the Public Defender doesn’t have the freedom to represent people so broadly, so non-profit organizations like First Defense Legal Aid try to step in. When I wrote my post about the 50th anniversary of Gideon about FDLA, I asked the Bronx Defenders Executive Director, Robin Steinberg, for a quote about the benefits of pre-arrest representation, and despite the diminutive stature of Windypundit in the world of legal journalism, she was nice enough to take the time to give me something.)

To be sure, getting involved with the video was a fuck-up. When you’re responsible for providing indigent defense for 35,000 people, you better not do anything that would jeopardize your funding. Somebody — either the lawyers involved or Robin Steinberg — should have done a better job of making sure that the video didn’t have anything in it that they wouldn’t want to be associated with.

At the same time, however, the City’s response is more than a little disturbing. Except where the speech is an intrinsic part of what is being contracted, the government has no business telling people or organizations what they can or cannot say.

I mean, what’s the theory here? That no person or organization that receives money from the government should ever say anything upsetting or controversial? Is that really the standard? Where else would that apply? A bus driver who complains about stop-and-frisk at a community meeting? A construction contractor who gives an anti-gay sermon to his independent church group? Or how about the city’s colleges and universities? Could the city stop a CUNY theater workshop from performing a puppet show that portrayed cop-killing in a positive light? Would anybody even care?

Naturally, the investigators are not admitting that this is about free speech. They have a rationalization:

“If you’re an organization primarily funded by the city, you can’t use your premises and you can’t sponsor videos that call for killing police officers,” said Mark Peters, commissioner of the Investigation Department. He added, “When people in your organization do something that so damages your reputation, it also damages your ability to efficiently advocate in front of judges and in front of prosecutors.”

What a crock. This is a half-assed attempt to rationalize punishing them for their speech by latching onto the only possible justification. And technically, he’s got a point: The Bronx Defenders involvement in the video is Not Going To Help Their Clients, and on that basis it was certainly a mistake.

But let’s be realistic about it. Does Mark Peters know what criminal defense lawyers do for a living? That they defend rapists and murderers? And he’s saying a music video might damage their reputation? I’m just guessing, but I’m pretty sure that the Bronx Defenders have represented more than one actual cop killer. You don’t think that pisses people off? Like anybody who does criminal defense, they’re used to working around much larger conflicts than some stupid video.

And what does Peters mean when he frets about the their “ability to efficiently advocate in front of judges and in front of prosecutors”? They’re not the ones who are so upset about the video. Their advocacy isn’t going to be affected at all. What Peters is really saying is that judges and prosecutors might be so unprofessional as to let their feelings about the video influence their decisions in matters of justice, which could harm Bronx Defenders’ clients. As I’ve said, that’s a fair point, and they should have been more careful, but the Bronx Defenders are not the only problem here.

The report says the Bronx Defenders told investigators that they were prepared to issue all three employees 30-day suspensions without pay and to demote Mr. Rao and Mr. Napoli.

But in a statement, the Bronx district attorney, Robert T. Johnson, deemed those steps “insufficient.”

The Patrolmen’s Benevolent Association went further, demanding that the Bronx Defenders be shut down.

The district attorney and the Patrolmen’s Benevolent Association are just about the last people you’d want to influence policy for indigent defense. I’m sure they’d both be happy if the Bronx Defenders were replaced by a more subservient organization.

Ultimately, the Bronx Defenders have to do what is best for their clients, which may mean giving in to extortionate demands. But it makes me angry that they are under pressure over something as stupid as this. The Bronx Defenders are doing important work in their community, and I support them. Literally.

(Hat tip: Scott Greenfield)

Matt Brown, a criminal defense lawyer in Tempe, Arizona, has noticed that a lot of local lawyers have websites that get the law on concealed weapons wrong.

Every single lawyer website I visited had misstated the law.

Fortunately, the law has become more permissive, so nobody who believes what they read on the lawyers’ websites will think it’s legal to do something that will get them arrested. Still…

[…] I still see the pervasive misinformation on this as a big problem. At best, it makes lawyers look like idiots. At worst, it seriously misleads the public.

Sadly, it’s just how things work now. People find everything online now, including lawyers. Garbage on the internet with the right keywords brings in business. If you or someone on your behalf isn’t spewing client-attracting terms everywhere, cluttering search results with marketing nonsense and drowning out the seemingly ever-shrinking number of lawyers actually trying to say something thoughtful online, you’re losing money. I don’t know if it makes it more depressing or not knowing that lawyers probably didn’t even write half the crap I read. It’s probably some web guy copying something some other web guy put up.

That’s my theory.

I’m not a lawyer, so unlike Matt Brown, I can’t generally spot legal errors in marketing materials — unless they’re really obvious, such as a California lawyer blatantly trying to inflate his Avvo stats by explaining how bail bond companies work in Illinois. (Follow the link if you want to know why that’s a problem.)

When it comes to the web guy copying something from another site, my go-to example is Jerald Novak & Associates, whose website at has this question and answer on its FAQ page:

Q 4: Should I submit to a chemical test? Can I refuse?

A: 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. You have the right to a hearing to contest this suspension and must request this hearing within ten (10) days from the date of your arrest.

Forget whether you can be forced to take the test, or what the suspension period is, or how your hearing rights work. Just know this: There is no such thing as an Illinois Department of Motor Vehicles. All that stuff is handled by the Illinois Secretary of State’s office, which has both a Driver Services department and a Vehicle Services department.

This doesn’t mean that Jerald Novak is a bad lawyer. I’m no legal expert myself, and I know nothing about him other than what’s on his website and his Avvo profile. For all I know, he’s an excellent lawyer. (Just as, for all I know, Jerald Novak & Associates actually has associates, although none are listed on the firm overview.) But since he got his bar card way back in 1987, he clearly didn’t grow up as part of the internet generation, and I’m guessing he sees his website as just another piece of marketing. Like a billboard, but in “cyberspace.”

He certainly doesn’t take his website seriously enough to actually read it, or to correct the problems with it, since I first noticed the issue six years ago while Googling around for information about Illinois DUI law for a post I was thinking of writing, and in all that time, nobody’s bothered to fix it.

I decided to look around a little more, and I noticed the website repeats its use of the wrong department on the page about suspended or revoked licenses. These could, of course, be simple editing mistakes. The Department of Motor Vehicles, or DMV, is a common generic term for whatever bureaucratic entity handles things like driver’s licenses and vehicle tags in a state, and it’s possible the copywriter slipped it in by accident, and whoever reviewed it didn’t notice because — although it’s the wrong term for Illinois — it means the right thing.

But then there’s the glossary page, which has a specific entry for “DMV”:

DMV – Department of Motor vehicle (Driver Control Division of Illinois Department of Revenue)

That’s pretty clear. I don’t see how you miss that on review. And I’m pretty sure there’s no such thing as the Driver Control Division in the Illinois Department of Revenue. (In Illinois, the Department of Revenue does income tax collection and has nothing to do with driving.) Googling around a bit, it looks like the “Driver Control Division” might be a Kansas thing.

I noticed a few other terms in the glossary that struck me as odd:

Cereal Malt Beverage – 3.2 Beer, not liquor store beer

DC-27 form – Officer’s certification of failure or refusal of alcohol test. The DC-27 form is also referred to as the “pink sheet” or the “officer’s certification”.

DC-28 form – Law enforcement officer’s certification of breath test failure for minor with alcohol test of .02 or greater. The DC-28 form is also referred to as the “pink sheet” or the “officer’s certification”.

When I Google each of those terms, I don’t see any immediate hits showing up on Illinois information sites or DUI sites, but I get plenty of hits referring to Kansas liquor and motor vehicle laws.

Jerald Novak’s site was apparently built by Speakeasy Marketing (which I have to say is an awesome name for a creator of DUI lawyer websites) and the material on their front page includes this item:

You don’t have to blog AT ALL. No need to write even a single word, even though your website will grow to have 70,000+ words / 120+ articles of quality content effortlessly.

(Your website will become a go-to, trusted source of content about your practice areas, containing dozens, and eventually hundreds of articles that attract, inform, and compel Google searchers to call you for legal help.)

I wonder how that’s supposed to work. How is a website marketer supposed to produce “70,000+ words / 120+ articles of quality content” for a lawyer’s website without the lawyer having to write a single word? The answer is actually kind of a neat idea:

You spend 1 hour talking about a practice area and answering common questions. We record, transcribe, and edit the call, and turn it into 15-20 unique articles and place it on your website.

I’m pretty sure that’s not going to produce the kinds of articles someone like me would actually want to read. (Feedly shows only one reader subscribed to it.) But it will produce the kind of new content that Google likes, and it does so with content actually sorta kinda created by a real lawyer instead of a team of ghost writers in Belarus, which seems like a reasonable attempt to stay on the right side of an ethics line. They also offer to turn some of these interviews into a short e-book that visitors can download, as an additional marketing technique.

(Note to editor: Insert obligatory plug for Brian Tannebaum’s book here.)

I’m pretty sure that the references to a non-existent Illinois government department on Novak’s site are not the result of an interview. Speakeasy Marketing’s own website doesn’t appear to have been around long enough for them to have been responsible for the problem when I first noticed it in 2008, so I think they just imported the content from an earlier version of the site, where I think the web guy may have cribbed the content from some Kansas DUI lawyer.

It may seem that using the wrong name for the department that administers driver’s licenses is a trivial mistake, but to me it’s a warning sign. Novak’s site is filled with details about Illinois DUI law and procedures that are far beyond my non-lawyer ability to evaluate. So if I were to use any of the information on the site, it would be an act of faith. Yet if one of the few things on the site that I can evaluate is wrong, how much faith can I have in the rest?

Scott Greenfield posted a story a while back about a conversation he had with a biglaw lawyer who was trying to refer a client on a criminal matter. The biglaw guy apparently wanted Scott to commit to negotiating a deal for the client without going to trial. He didn’t even think it was necessary for Scott to do legal research or investigate the case. His explanation for why he thought this was a good idea is disheartening:

My pal then launched into an explanation, that his partner, the “white collar specialist” formerly known as the prosecutor, had already been contacted and explained to the high profile client that nobody wins, that only a fool tries, and that the wise defendant comes in with hat in hand, throws himself upon the mercy of the similarly wise prosecutor, who then exercises mercy and offers a lenient deal that allows the defendant to move on with his life.  That, he explained to the high profile client, is how good lawyers do it.

Oh dear God. I watch a lot of cop shows, and whenever the cops finally get the bad guy in the interrogation room, they always say something like “If you don’t talk to us, we won’t be able to help you out.” Cops make fun of suspects who fall for that, but the “white collar specialist” seems to actually think that the prosecutor will help out his client out of some sense of civility and niceness. I suppose that’s possible, in theory, but I suspect the prosecutor is more interested in getting the best possible deal from the government’s point of view, because that’s kind of his job.

The strangest thing, however, is that the biglaw lawyer seems unfamiliar with the fundamental rule of bargaining: In any negotiation, the person who has the most bargaining power is the person who is most able to walk away. The less you have to lose if the deal falls through, the less the other side can pressure you to make a deal, which means you have more control over the terms of the deal.

Therefore, the best way to get a good deal at the plea bargain is to be as prepared as possible to win at trial. If the trial will be difficult, you can expect a harsh plea offer, but if you have nothing to fear from a trial, you have nothing to fear from a plea. So even if Scott’s would-be client just wants a quick deal, he’ll get a better deal if Scott can convince the prosecutor that the defense has a good chance of beating at least some of the charges at trial. I know Scott is a Superlawyer, but I think even he’d need to poke at the case a bit first.

Granted, plea bargaining in the real world is more complicated than this simple rule, and there are probably cases where the smart move is to make a quick deal. But I find it hard to believe there’s any case in which a quick deal is so important that the defense lawyer should commit to it during the referral.

A couple of days ago, Scott Greenfield was writing about some of the complexities of federal sentencing, when a commenter named Jake proposed a crazy solution:

Was there ever a task in the courtroom more ripe for automation?

Well, yes, there’s tons of administrative crap that can be, or has been, automated. However, Jake had a particular problem in mind that he’d like to solve:

As a representative of the ignorant masses, I find comfort in the notion that everyone would be given sentences using the same criteria, and never again subjected to the whimsy of some of the judges I’ve read about on this blog.

Scott is in agreement with him as to the goal:

This “problem,” that judges impose disparate sentences on seemingly like-situated defendants, has long been a vexing problem. It was one of the foundational arguments for the Sentencing Guidelines, to create greater consistency in sentencing across the country, so that a judge sentencing a defendant in a drug conspiracy in Wichita would impose a sentence reasonably the same as one in Brooklyn.  Consistency was the goal, and from a substantial distance, it appeared to achieve that goal.

The problem was that it failed miserably to accommodate the myriad personal details that comprise the heart of sentencing. Indeed, it precluded judges from doing so, forcing lawyers into striving mightily to come up with arguments about why their defendant’s circumstances fell outside the “heartland” of the guidelines.  Most of the time, these arguments failed. One size fits all sentencing was imposed, and those who feared mercy slept well at night.

Interestingly, a commenter named David hit on the obvious solution almost immediately, which is to use a randomly assembled team of sentencing judges and take the average of their sentences as the final sentencing result (with some complications if the sentences don’t converge sufficiently). Scott dismisses this idea as off-topic, but in fact it directly addresses the exact problem Scott described. Because the judges wouldn’t be working from a strict guideline, they are free as judges to “accommodate the myriad personal details that comprise the heart of sentencing.” Yet because they are averaging the sentences across a group of judges, there will be less likelihood of imposing “disparate sentences on seemingly like-situated defendants.”

That conclusion falls out of some basic math and statistics. If you have a sample population that exhibits a certain variance between samples — such as judges passing sentences — and you collect the samples into groups, then the variance between the group averages will be smaller than the variance between the individual samples. This is why diversifying a stock portfolio reduces risk, and it’s why people pool their risk by purchasing insurance for disasters they can’t afford. Since each judge’s sentence is averaged in with the others, no single judge indulging his whim can change the sentence too much.

This is, of course, a highly impractical idea that would be difficult to organize and expensive to operate. (Although lots of sporting events use it, and shouldn’t criminal sentencing be at least as orderly as the judging in Olympic ice dancing?) However, it’s still a lot more realistic than the idea of automated sentencing.

Actually, Jake may have been imagining something fairly modest. Perhaps he only meant to automate the calculations. I’m pretty sure that lawyers who have to work with the guidelines already have worksheets and spreadsheets for that. It wouldn’t be much of a step to write some sort of program that asks questions or presents forms to fill out and then calculates the sentencing range, kind of like TurboTax for federal sentencing.

I’m surprised there isn’t an iPad app for that already. I tried looking for one, but all I could find were copies of the guidelines that you could install. There was nothing to help with the calculations. There is the U.S. Federal Sentencing Guidelines calculator website written by Josh Goldfoot, which seems to walk you through a sentencing calculation, but that was just a personal project that appears to no longer be maintained. In any case, it’s certainly a doable project.

But it may not be a worthwhile project. After all, when it comes to automating things on a computer, the calculations are the easy part. The hard part is the work done by the lawyers and judges: Interpreting the guidelines and determining whether or not they apply to a particular case. It’s probably not possible with current technology to teach a computer to think like a lawyer.

But maybe we can cheat. That’s what Google does.

Search engines can do some amazing things these days, but they don’t actually understand what’s written on a web page. The science of natural language understanding hasn’t yet come far enough for computer programs to understand a natural human language the way humans do. What Google does is generate complex statistical information about the words on web pages, and then it observes human behavior in creating and clicking on links to determine which pages have information that is relevant to user queries. Google doesn’t understand (at least not the way a human would) what’s written on a web page, or what a user wants from a query, but that doesn’t stop it from “learning” how to help people find information.

The legal world has already begun to use this kind of machine learning technology during e-discovery to make document review more efficient. If a party to litigation responds to a discovery request with 100,000 documents, the other side will have to have a team of lawyers review the documents to decide which ones are actually relevant to the matter at hand. If those documents are in electronic form, however, it’s possible to use predictive coding to speed up the review process.

The way it works is that the document review team starts by reviewing a representative sample of the document set, scoring each document based on what relevance it might have to the case. The predictive coding software generates statistical summaries of the documents, and it uses those statistical summaries to analyze the choices made by the human document reviewers. This is similar in concept to the way Google looks at how people use links on the web. The software then tries to predict how the human reviewers would score all of the remaining documents. This guess can then be used to prioritize the review of the remaining documents, to try to find the most useful material as soon as possible.

In theory, we should be able to build a Sentence-O-Matic 1000TM using the same principles. We would start with a training set of documents from, say, 100,000 criminal cases. We’d input all of it into a machine learning system. Some of the data would be structured values, such as the identity of the laws under which the defendant is being charged, his prior convictions, and demographics data. Much of the data, however, would simply be the text of the documents themselves, along with tags to identify what they are — motions, briefings, arguments, testimony, transcripts, and so on. The data would also have to include the resulting sentence.

We’d then let the system crunch on the data for a while, to try to find relationship rules between the structured and unstructured data about the cases and the resulting sentences. It could, for example, discover that certain words in certain documents in certain types of cases are correlated with higher or lower sentences. Once we have a complete set of rules, we can run the algorithm the other way around: We feed documents from another test set of, say, 10,000 cases, and let it apply the rules to predict the sentences, and we score it on the accuracy of the result. We repeat the learn-and-test cycle over and over, tweaking the algorithms each time, until it’s accurate enough for our purposes. The resulting system will respond like a hypothetical average judge.

At least that’s the theory.

And it’s a theory that sometimes works. Predictive coding for e-discovery is a real thing, and there’s a reason why so many of the world’s browsers use Google as their home page. But from what I know about predictive analytics, it’s not ready for a task like this. It’s great for supporting a human task — finding websites to read or prioritizing documents for review — but I can’t see it replacing humans at critical tasks. There’s a reason we don’t use analytics engines to replace doctors or engineers, and I can’t see them replacing lawyers or judges either.

(Remember back when a lot of companies tried using automated document searches in place of customer service representatives for emailed support questions? That didn’t work out very well, did it?)

Of course, if we actually did try something like this, you know what would happen, right? All of those annoying SEO “experts” would start offering their Criminal Sentencing Optimization (CSO) services to lawyers, to help them prepare documents that are stuffed full of whatever it takes to game the Sentence-O-Matic. “We’ll show you how to fill your briefs with proven sentence-reducing keywords!”

I don’t think anyone wants to live in that world.

One of the most amazing developments in the legal blogosphere last year was the emergence of the Hercules and the Umpire blog, because it was written by an actual sitting federal judge. It wasn’t just warmed-over pablum, nor was it some sort of scholarly legal blather. Instead, like a classic blogger from the early days, a federal judge just started telling us what it’s like to do his job. He expresses his opinion about a variety of related issues, he takes a stand, and he even goes off on a rant from time to time. In a few cases, his blog posts have pissed people off and earned him some harsh criticism.

Welcome to the blogosphere, Judge Kopf. We’ve got donuts.

I don’t actually read Hercules and the Umpire very often unless I find a reference to it from one of my regular daily reads. In part, that’s because Judge Kopf’s focus on issues affecting the judiciary is a little too specialized for me. I’m not familiar enough with the issues to understand how to think about them, and I’m not interested enough in them to learn more. My concerns tend to focus on the design and consequences of public policies, whereas HatU is more about how the judiciary does the things they do.

Along those lines, Judge Kopf wrote on Saturday about the Hobby Lobby case, in which the Supreme Court ruled that, due to the religious beliefs of its owners, the Hobby Lobby chain did not have to comply with the regulatory interpretation of the Affordable Care Act by offering certain specific kinds of female contraceptives in its employee medical plans. I had previously made the point that this was a relatively minor issue that was turning into a giant legal and political battle that has now gone all the way to the Supreme Court, and that we could expect more such battles in the future because the ACA made all kinds of healthcare-related decisions into political issues.

Kopf’s point was based on a similar view of the importance of the contraceptive mandate:

To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynistic because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception. While “looks” don’t matter to the logic of the law (and I am not saying the Justices are actually motivated by such things), all of us know from experience that appearances matter to the public’s acceptance of the law.

The Hobby Lobby cases illustrate why the Court ought to care more about Alexander Bickel’spassive virtues“–that is, not deciding highly controversial cases (most of the time) if the Court can avoid the dispute. What would have happened if the Supreme Court simply decided not to take the Hobby Lobby cases?  What harm would have befallen the nation? What harm would have befallen Hobby Lobby family members who would  have been free to express their religious beliefs as real persons? Had the Court sat on the sidelines, I don’t think any significant harm would have occurred. The most likely result is that one or more of the political branches of government would have worked something out. Or not. In any event, out of well over 300 million people, who would have cared if the law in different Circuits was different or the ACA’s contraception mandate was up in the air?

The reason Judge Kopf advances for avoiding highly controversial cases is to preserve the legitimacy of the court. After all, the court has no army to enforce its decisions, so people — including politicians, bureaucrats, and police officers — obey the court out of a tradition of respect and mutual acceptance of the legitimacy of its decisions, and the court would do well to not to waste that obedience on heated controversies that aren’t very important in the grand scheme of things:

Bickel was not trying to protect the Court itself. On the contrary, he realized that there were “hot button” cases that an anti-democratic Court would of necessity be required to resolve. It was for those rare “fate of the nation” cases, where the Court’s legitimacy mattered most to public acceptance of a really important decision, that required the Court to conserve this very scare resource.

Judge Kopf thought it was time for the Supreme Court to ease up before they lose the support of the people:

Next term is the time for the Supreme Court to go quiescent–this term and several past terms have proven that the Court is now causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid. As the kids say, it is time for the Court to stfu.

Kopf is essentially arguing that it is necessary for the Supreme Court to allow some injustices to go uncorrected in order to retain the moral authority necessary to correct other injustices that are presumably more important. He’s not saying that making that kind of tradeoff is a good thing, only that it’s a necessary thing for the long-run good of the justice system.

I never thought of that before, but my gut feeling is that it makes some sense, especially since the Supreme Court is always limited by time constraints. The sheer volume of cases means the have to pick and choose which ones to hear, and so they might as well be strategic about it. On the other hand, there’s also the argument that the best way to maintain the court’s authority is to use it regularly, so that people become accustomed to acceding to its authority. I think this is a fascinating discussion about how the Supreme Court can assert leadership in the national legal arena.

However, according to Scott Greenfield, a number of people latched onto something that completely escaped me, the very last word of Kopf’s post, “STFU.” Apparently, this might be the first time that a sitting Article III judge has publicly told the highest court in the land to “Shut The Fuck Up.”

Responding in part to this controversy, Judge Kopf reprints a letter he received from a lawyer, advising him that it is time to stop blogging:

[…] in my 25 years as a lawyer, it is my inescapable conclusion that an important element, perhaps the most indispensable one, in our legal system’s ability to deliver justice is public trust in judges.

Well, I’m going to dispute his premise right there. I have no doubt that public trust in judges is an important part of the legal system’s ability to deliver justice. But I think something even more important than public trust in judges is that the judges be worthy of that trust.

In order for our system to work, the public must know that a judge will decide matters thoughtfully, impartially, respectfully, and on the merits.

This is where I have a fundamental disagreement with Kopf’s letter writer: He wants the public to “know” something that simply isn’t true. We certainly want judges to decide matters thoughtfully, impartially, respectfully, and on the merits, and I’d like to think that the majority of judges will do that the majority of the time, but certainly they won’t all do that every time.

How does such attention and reaction create an appearance that assists the public’s acceptance of the law, help people trust judges, foster faith in our system, and advance the cause of the delivery of justice?

It probably doesn’t, and it probably shouldn’t. There’s such a thing as placing too much trust and confidence in judges. Some judges will be idiotic, other times they will be assholes. Our judicial system is unavoidably human and therefore necessarily imperfect. Trust and faith in the system are important, but only to the extent that they are based on a realistic assessment of the quality and capabilities of the system. Trusting judges too much is just as bad as trusting them too little.

As I understand it, part of your motivation for continuing with your blog is your passion that “federal trial judges be seen as individuals with all the strengths and weaknesses (baggage) that everyone else carries around.” […] I fail to understand the particular level of importance you apparently ascribe to folks’ possession of that understanding about judges. What difference does it make whether federal trial judges’ strengths and weaknesses and baggage are properly understood?

The same difference it makes for anybody else in any other job: We want to make sure we aren’t depending on them to do something they are incapable of doing.

[…] a judge should display the thoughtfulness and restraint appropriately expected of people who have accepted society’s call to judiciously make important, vital decisions. It is entirely proper for us to expect that judges not be publicly profane, lewd, or disrespectful; and it is entirely proper to expect judges’ words and deeds to be consistent with the high ideals of integrity and justice. In fact, the success, or lack of success, of our legal system largely depends on judges’ meeting these standards.

Here the judge’s critic has subtly switched subjects. Until now he has been speaking about the extent to which Judge Kopf’s blog undermines public confidence in the judicial system (and implicitly about whether that would be a bad thing). In this section, however, he changes his focuses to the more personal question of whether Kopf is behaving properly in his role as a judge.

I don’t know enough about the court system to have a strong opinion about whether Kopf’s uncensored comments on his blog illustrate that he is unfit to be a judge. (My gut feeling is that we tolerate much worse from judges, just not in the form of blog posts.) What I do know is that regardless of whether you think Kopf is a thoughtful judge who provides valuable insights into the humanity of the federal judiciary, or you think that Kopf is an intemperate fool who should resign from the bench, you think that because of his blogging. You’ve learned something about Judge Kopf specifically and the judiciary in general. Whether this is good news or bad news, it’s still information, and more information is always better.

So if Judge Kopf decides to stop blogging because he feels it undermines his ability to do his job as judge, that might make sense. I wouldn’t know. But if Judge Kopf is worried that his blogging will undermine public trust in the judiciary, I say keep talking. Undermining trust in the judiciary might be just what we need. Or not. But we’ll have a better chance of figuring it out if we know more about it.

(This post started with a few ideas, and then got all long and rambling, but I don’t have time to make it shorter. Sorry.)

A few years ago I had a toothache, and I made an emergency appointment with my dentist.

Her diagnosis was that the tooth’s pulp was infected around the nerve, and her treatment procedure required a lot of painstaking work using her carefully-honed skills: She started by performing a root canal procedure, which involved anesthetizing the nerves for that tooth, drilling into the tooth, scraping out the damaged and infected tissue, and sealing the hole. She then installed a temporary cap on the remaining portion of the tooth while she arranged to have a synthetic crown fabricated. When that was finished, she removed the temporary cap and cemented the crown in place to restore the damaged tooth to its approximate original shape, appearance, and function.

As a dentist, she has the equipment, the training, and the experience to do all that for me, and from her point of view, that work is what she sold me to earn my money. But that’s not why I went to her office. I didn’t just wake up and decide, “I’d like to get a root canal and restoration today.” When I called her office, what I wanted was for her to make the pain go away.

That’s a key distinction for anyone selling a product: You have to remind yourself to think not about the product you produce, but about the benefit your product produces for your customers. There’s a difference between what you’re trying to sell and what your customers are trying to buy.

During periods of rapid change, the gap between what a producer is selling and what consumers are buying can grow so large that it separates producers from consumers completely, and changes the market on a massive scale. Companies like Kodak and Fuji used to compete in the huge market for 35mm camera film, which people used for everything from professional photojournalism to snapshots of kids’ birthday parties. As it turns out, however, the film companies were selling film, but what their customers really wanted to buy was pictures. So when digital imaging got good enough and cheap enough, almost everybody switched to digital photography, and the whole film market crashed to a fraction of its former size.

Smaller examples are plentiful. For the most part, grocery stores sell the ingredients for preparing meals, and their customers buy ingredients they plan to use in meals, which works out to about the same thing. But when someone knows they won’t be able to devote a lot of time and effort to preparing a meal, they’re not just looking for basic ingredients any more. They’re looking for a way to save time. And the marketing materials for products like minute rice and microwave meals tend to emphasize that. They may be selling rice, but they know their customers are buying themselves some spare time.

Cooking food is also a way for people to show they care, and many foods are marketed not just as tasty morsels, but as tasty morsels that will show your family how much you love them. Or at least as tasty morsels that will make you feel you’re showing your family how much you love them.

That’s also a big selling point for a lot of children’s medicines. Pharmaceutical manufacturers may be selling dextromethorphan or guaifenesin or pseudoephedrine, but they prepare their marketing plans knowing that customers are buying the comforting feeling that they’re taking good care of their children. With some over-the-counter products, that feeling of taking care of their children may well be the only real benefit the product has to offer. (I’m looking at you, Vicks VapoRub!)

I suspect there are similar gaps between producer and consumer when it comes to selling criminal defense services. Over at Simple Justice Scott Greenfield posted this awesome-yet-horrible-yet-hilarious ad from Pennsylvania criminal defense lawyer Dan Muessig, who clearly has his own theories on what his clients are really buying from him:

There’s already been plenty of talk about the ethics of the ad from Scott and others who know a lot more about legal ethics than I do, so I won’t re-hash any of that here. But what struck me about the ad was the fact that the people depicted as his clients are almost universally shown as being guilty. Not in the legal sense perhaps, but certainly in the colloquial sense that they actually did something bad.

Each client scene includes overlaid text such as, “Crimes Committed: Burglary, Home Invasion, Armed Robbery, Aggravated Assault.” There’s no equivocation here, the crimes are described as “committed,” not just “charged,” and in most of the scenes, the clients say “Thanks Dan!” while clearly in the process of committing further similar crimes. And he doesn’t describe his clients as “clients” or “defendants” or “the Citizen Accused.” He calls them, quite frankly, “criminals.”

I thought this was an interesting change of pace from a lot of lawyer advertising, which is usually heavy on standing up for you and protecting your rights while politely avoiding mentioning that many of their clients quite likely committed crimes. DUI/DWI lawyer advertising is especially tedious, depicting almost every client with some variation of “I only had a couple of drinks, but the police stopped me, and now they’re charging me with a DUI!” That seems like a sensible way to advertise for DUI clients, most of whom do not think of themselves as being criminals (the way a car thief or a drug dealer would), but as normal people who just got in a bit of trouble and need a lawyer to get out of it. And their lawyer is going to do some kind of legal thing — with motions and evidence, and maybe witnesses and testimony — but like me at the dentist, all they really want is for the pain to stop.

The fact is, though, their lawyer would be just as happy to take their case if they got totally wasted, hit six parked cars, damaged a pursuing police car, and blew 0.45 on the breathalyzer. For the third time. Because criminal lawyers solve legal problems, including legal problems that people bring on themselves through stupidity and evil acts.

Lawyers don’t usually talk publicly about those kinds of clients (I assume out of a combination of duty to the client and the desire to not make it easier for lawyer-haters to harass them), which led me to leave this comment:

I do have to admire how unapologetic the ad is. I once offended a criminal defense lawyer when I offhandedly described his job as something like “Helping criminals get away with crimes.” I understand why he objected to that characterization, because that’s not quite what he’s selling, but if I were the client (and I more or less did the crime), then that’s pretty much what I’d be looking to buy.

I was referring to the exchange I describe in this post, and re-iterating the point I made there, which was that it’s all very well for criminal defense lawyers to say they are defending people’s rights and holding the state to the burden of proving it’s case, but when it comes right down to it,

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.

In his excellent response to that post, criminal defense blogger Gideon restated my point as,

Is “I’m defending the Constitution” merely the sugar-coating on “helping them get away with it”?

(Ultimately, he decided that in most cases, criminal defense lawyers don’t help criminals get away with anything, a conclusion I basically agree with.)

However, Gideon’s restatement of my point wasn’t really what I had in mind. I don’t think talk of “defending the Constitution” and “protecting people’s rights” is some kind of smoke screen or ruse, covering up for something more nefarious. What I’m claiming is that the lawyer/client relationship is another example of the producer/consumer gap: Lawyers and their clients have different views of the same activity. If the client really did something wrong, he’s probably hoping his lawyer will help him get away with it.

(That’s certainly true of my own criminal career, which consists entirely of violations, such as speeding tickets and parking at expired meters. There were a few instances where I had no idea if I did what the officer said, and there were one or two times where I thought I might not have been guilty of the exact thing I was ticketed for, but most of the time I was probably guilty of something. And in many of those cases, I went to court — once with a lawyer — to try to avoid the maximum possible consequences for my crimes. It mostly worked.)

As an aside, after I posted my comment, another commenter asked,

What would you be looking to buy if you hadn’t done the crime?

Obviously, if I’m innocent, then I’m not trying to get away with anything, because I didn’t do anything. I’d be an innocent man trying to avoid a conviction for crime I didn’t commit. But because the Innocent Man Wrongly Accused is such a staple of every courtroom drama ever written, I responded to the question with a tongue-in-cheek reference to the most famous lawyer in the world when it comes to defending only factually innocent clients:

Well then I wouldn’t be needing a lawyer to help me get away with a crime, now would I? I’d be An Innocent Man, Wrongly Accused of a Crime I Did Not Commit. Everyone knows you hire Perry Mason when that happens…

The commenter’s response just confused me:

I think he’s dead. Are you implying that now that he no longer needs employment, the DAs never charge the innocent?

Uh…no. First of all, Perry’s not dead, he’s fictional. (And available on DVD.) And as for the part about whether I’m implying that DAs never charge people for things they are innocent of….no, that’s not what I meant. I read too many criminal law blogs to believe that.

I’m bringing this up because Scott quoted my first comment above in a more recent post and then went on to ask questions similar to Gideon’s:

All of this raises a very real question, which is something good parody ought to do.  We can wrap ourselves in the glorious duty of defending the rights of all, protecting the Constitution, but is that just a subterfuge for what we really do?  Is that what the accused hire us to do?  Is that what criminals want us to do?

I think those are are very different questions, and my answer to all of them is that just because criminals want to get away with crimes doesn’t mean that “the glorious duty of defending the rights of all, protecting the Constitution” is a subterfuge. Both of those things can be true descriptions of the same activity.

(If you ask me what I do for a living, I’d say I write web applications in C# that run on Windows servers. But to my employer’s customers, I’m helping to provide a service that enables them to run parts of their business more efficiently. Both of those descriptions are accurate.)

I guess also that if I’m going to say things like “defense lawyers can help criminals get away with crimes” I should make it explicit that I don’t think there’s anything wrong with that. I think bad people sometimes get away with crimes because they have good lawyers, but that has to happen from time to time if we’re going to use a system of adversarial law to protect our rights. I sure don’t blame criminal lawyers for doing the job our society needs them to do.

My general impression of the criminal defense lawyer’s proper role is pretty much based on Ken Lammers’s summary of the criminal defense lawyer’s job:

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.

Note that absolutely nothing in there depends on whether the client is factually guilty or innocent, or who is right and who is wrong, or whether the offending behavior should even be against the law. Lawyers work for the good of their clients, not for the good of society, even if — as in the Muessig video — the freed criminals go on to commit more crimes.

As The Blonde One says:

If a guilty client goes free, I don’t feel bad – I think that’s the way the system works, and the police and prosecutors should have done their job. Our system is imperfect – innocent people go to prison, guilty people go free[…]

Sure, it would be disturbing to know that the person you represented later killed someone. But I don’t think defense attorneys are responsible for every later act of their clients. If I represent a completely innocent person and after his acquittal he goes out and kills someone, either accidentally or purposely – am I somehow responsible for that death? No. Likewise, it’s not my Nobel Prize if he wins one either. I only deal with the crime charged, the single accusation – not my client’s whole life – good or bad.

That sounds about right to me. Because in addition to the view that lawyers have of their job, and the view that their clients have of their job, I have my own view.

Since I seem to be in the mood for quoting people who are a lot smarter about the law than I am, I’ll just use this excerpt from Justice Edward Douglass White in Coffin v. United States:

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?”

Without someone assigned to stand up for the accused, we would all be at the mercy of unscrupulous accusers.

And it’s not just the innocent who need protection. There are a lot of crimes you can commit without knowing it. Pretty much all of my traffic violations were like that: I didn’t realize I was speeding, I didn’t realize there was a No Left Turn sign, and so on. Everyone commits crimes like this — paperwork mistakes, various kinds of negligence, trusting the wrong people a little too much — and there’s not a lot we can do about it. Harvey Silverglate famously guessed that we all commit three felonies a day, and the punishments for some of them can be shockingly disproportionate.

That standing up for the accused sometimes frees the guilty is part of the price we pay for trying to create a system that is truly just. I may think that both O.J. Simpson and Casey Anthony got away with murder — and I suspect George Zimmerman got away with something — and some of them may have gone on to do other bad things, but to the extent that their lawyers helped them do that, I don’t blame them a bit.

So why bring it up at all?

Mostly because it amuses me. I am struck by the contrast between the people who become criminal lawyers and the kind of work that they do. Criminal lawyers are smart people who got good grades in college, did well on the LSATs and got into law school, and then spent three years in a very difficult curriculum. They are highly educated, highly motivated people with some very expensive training. And then they decide to spend the rest of their lives working for drug dealers, car thieves, prostitutes, embezzlers, tax cheats, rapists, and murderers.

(Some of them have made very interesting life choices. Mirriam was born in Kandahar, Afghanistan, came here to one of the richest countries in the world, got herself a law degree, and then decided she wanted to defend our criminals. Rick Horowitz was a successful IT professional who decided it would be a terrific idea to get a law degree so he could make a ton of money in the fast-growing and lucrative field of technology law. But somewhere along the way, he decided he’d rather spend his career defending kids accused of gang crimes.)

To me, Dan Muessig’s video was a funny subversion of that contrast, as he tries to establish some street cred to attract clients. He’s more direct about his branding in this Slate piece:

Slate: Beyond connecting with clients, how can what you call “street knowledge” be an advantage for a defense attorney?

Muessig: The most important thing to me is helping a client out. … You have to know what your client wants out of the situation. You have to be able to say, “I know you, I understand where you’re coming from, and what your aims are,” and be able to build your defense around their needs. You don’t want to be the typical white guy in the suit who’s going to impose his worldview on the client. That’s, honestly, the attitude of most lawyers working today. There’s been some diversification in the field over the past 50, 20, 10, five years, but it’s still an overwhelmingly old, white, male, moneyed profession. It’s a lot of patrician guys talking down to people who are in their office. There’s a lot of condescension. If you come at it with a knowledge of the streets, what these people are facing, and how it affects their lives, you can really focus on how best to help them.

I don’t think his ad really works on that level. For one thing, I have no street cred, so I can’t tell if he’s faking, but people who are really streetwise will spot it if he is. He’ll be like all those business people in the record industry who try to act “hip” and “with it” to be more like their musician clients, but just end up looking like dorks.

Also, an awful lot of potential clients are more-or-less normal people who don’t think of themselves as criminals — DUI offenders, white collar criminals, casual drug users, people caught driving on a license that got suspended because of some bureaucratic mess — and I think they would be put off by a lawyer who associates with “criminal types.”

On the other hand, the people he’s trying to appeal to — the lucrative repeat-offender market — are probably knowledgeable consumers of criminal defense services who aren’t put off by lawyers who look and act like lawyers. In fact, image consultants have generally found that people do not want the professionals they hire to look and act like themselves. They want their doctors, accountants, and lawyers to look and act like doctors, accountants, and lawyers.

Then again, as silly as Dan Muessig’s ad is, he certainly knows a lot more about the criminal law business than I do. Besides, I kind of have to like a lawyer whose Avvo profile lists his practice areas as 99% Criminal Defense and 1% Admiralty law.

Over at Crimlaw, Virginia prosecutor Ken Lammers writes about the state’s law allowing private prosecutions. It’s a fascinating concept, and Ken goes into a bit of detail, but it comes down to this:

So, basically, if doubly approved by the judge and the public prosecutor, the hired gun prosecutor can take part in the case as long as he is under the control of the Commonwealth Attorney and has no civil case conflict. In particular, I think the civil case conflict rule is important, although it doesn’t entirely eliminate the private prosecutor’s monetary inducement to seek a conviction. After all, the party paying for the private prosecutor is paying him to be biased. However, the opinions seem to say that this was okay in Jolly Olde England, so it’s okay in Virginia until the General Assembly says it ain’t.

With those restrictions, it sounds to me as if this isn’t really about private prosecution anymore. If the Commonwealth Attorney has control over who the prosecutor is and retains control over the case, then it’s not so much a private prosecution as a privately-funded prosecution.

So, for example, if the Commonwealth Attorney’s office decides not to pursue a charge because they believe it is unfounded — no crime was committed, or the suspect isn’t really the doer — then they can prevent a private prosecutor from entering into the fray.

On the other hand, even if the Commonwealth Attorney believes the charge has a basis in reality, the office might decide to plea it down, dismiss it, or never file charges at all because they have a limited budget for prosecutions, which they prefer to use for more serious or more winnable cases. If the victim is upset about that, the Commonwealth Attorney could tell the victim that if he’ll spring for the lawyer’s fees, they’ll let him bring in an outside lawyer to pursue the case. I’m sure they could even recommend former prosecutors who they would approve for the job, which would serve the dual purpose of ensuring competent prosecution and enriching friends.

Taken to the logical extremes, a Commonwealth Attorney’s office that is truly interested in making the most efficient use of the budget for public prosecutions could end up working a lot like the Public Defender’s office: Let the wealthy victims hire their own lawyers because they can afford it, while the Commonwealth Attorney’s office does all the prosecutions for the poor victims who would otherwise be unable to seek justice.

Although I’m not sure that would be, um, politically feasible…

After reading Daniel Sockwell’s article about writing legal briefs that you expect a judge to read on an iPad, Scott Greenfield is a little bummed out over the suggestion to eliminate footnotes:

Initially, Sockwell’s point about eliminating footnotes is a critical one, not just because they’re hard to read on a tablet but because that means footnotes won’t be there to be used. I love footnotes in briefs.  They are the perfect tool to make mini-arguments, small off-shoots of main points that may not merit a point heading of their own but carry weight in the consideration of the main point.

Scott also brings up an important practical point:

There is one problem arising from the mixed brief submission, where a court requires paper briefs as well as digital briefs.  The two can’t be different, and yet the two will be read in very different ways that require them to be different. Sockwell makes the point that an advocate needs to know how a particular judge reads a brief, and tailor a brief to her ways.  That may be fine when the brief goes to a trial judge, but won’t necessarily help when it goes to an appellate panel. You can’t please them all.

I have good news for Scott: Technology has the solution!

If courts insist on only one version of the document, but you want it readable in two different formats, the solution is an intermediate electronic markup language which specifies content rather than format. You’ll submit this intermediate document to the court clerk, who will use it to prepare the judge’s reading copy in whatever form the judge prefers. For example, Scott could create his mini-argument with the appropriate markup, submit his brief to the clerk, and the clerk’s computer could render his mini-argument as a footnote on the printed copy and on the iPad perhaps it could generate a nice fly-out sidebar with an elegant easing algorithm.

How do we know that a content-oriented intermediate markup language is the best solution? Simple. We know it will work because software engineers have already implemented dozens, if not hundreds, of content-oriented intermediate markup languages, such as RUNOFF, troff, Tex, SGML, HTML, BBcode, Markdown, MediaWiki, PmWiki, AsciiDoc, Mobipocket, EPUB, OpenXPS, and PDF. With so many successes already, how can one more possibly fail?

I suspect that tech-savy clerks at several of the more innovative courts will lead the way by specifying their own preferred content-oriented intermediate markup languages, probably using a variant of an existing one with a few court-specific extensions. Once that happens, NIST should react with their customary efficiency and issue a strawman process proposal for establishing a steering committee to develop a national standard for a legal brief submission markup language.

In less than half a decade this should result in an initial draft proposal, after which court systems will begin the process of retiring their prior legacy brief submission formats, except of course for those court systems that want to wait for the version 2.0 draft to stabilize because it adds some exciting new features that didn’t make it into the 1.0 version, and because it will clear up some ambiguities and completely replace the system for handling string citations with one that’s more comprehensive.

Don’t worry if all this sounds confusing, because legal software vendors will be happy to provide a markup translation solutions that will convert between many of the most widely-adopted brief-submission content-oriented intermediate markup languages. Most lawyers shouldn’t need to purchase more than two or three different programs to cover all the jurisdictions they practice in, although many larger firms are expected to prefer cloud-based subscription solutions.

Welcome to the digital revolution! The future is going to be awesome!

Over at Crime and Consequences, Kent Scheidegger writes about one of the philosophical problems with the exclusionary rule:

For many years, the U.S. Supreme Court has been pruning back one of the most repugnant notions of criminal procedure — the idea that a clearly guilty criminal can suppress rock-solid reliable evidence of his crime on the basis of how it was obtained.  If someone violated a law in the process of obtaining that evidence, that person should be prosecuted or sued for the violation, but it is utterly irrelevant to the justice of the case at hand — whether the defendant did or did not commit the crime of which he is accused.

As it happens, I agree with Kent Scheidegger on the basic issue. I don’t find the exclusionary rule to be repugnant, as he does, but it is a messy half-assed attempt by the courts to remedy a situation that is beyond their power to fix correctly, and we would be better off without it.

As Kent explains, the proper approach when cops break the law to obtain evidence is to punish the cops rather than letting the guilty go free. If a cop enters a house illegally and discovers evidence of a crime, the best solution is not to let the offender go free, but to send both the cop and the offender to jail for their respective crimes.

Unfortunately, this fine solution is beyond the power of the courts and the legislature — neither judges nor lawmakers can press charges for a crime. Only prosecutors can do that. Therefore, my dear prosecutorial readers, you’re going to have to make the first move: Start indicting police officers when they break the law. I’ll bet you’ll only have to imprison a few thousand of them before the Supreme court changes its mind and rules that the exclusionary rule is no longer necessary.

In order to encourage prosecutors to follow this path, I hereby invite the forward-thinking Kent to share his stories of all the cops he prosecuted for breaking the law while gathering evidence…Oh, wait, Kent isn’t the C&C blogger that was a prosecutor. That was Bill Otis

Well, let me just throw it open to any prosecutor who agrees with Kent’s view of the exclusionary rule: We want to hear your story. Inspire other prosecutors with your tale of prosecuting lawbreaking cops — the trespassing charges for entering a home illegally, the theft charges for confiscating cellphones, the false imprisonment charges for detaining people without probable cause. I’m sure there are lots of these stories out there. Now’s your chance to be an inspiration to others to make a real change in the world. Tell us your stories. Just leave a description of the indictment in the comments, or drop a link to your office’s press release.

I’ll be waiting. But I won’t be holding my breath.

Over at Popehat, Ken White has another of his posts explaining that the most important thing you can do when talking with cops is to stop:

One of the most consistent messages I offer here is about interactions with law enforcement, and can be expressed in two words — shut up — although “oh you dumb son of a bitch will you for the love of God shut up” might capture the flavor better.

Ken writes about this a lot, as do several other criminal defense bloggers. I’m pretty sure that one of the bylaws of the practical blawgosphere is that every criminal defense lawyer must eventually write a post about not talking to cops.

It seems like pretty good advice. As Mark Bennett says on his brilliant “Million Dollar Legal Advice” page:

If everyone followed this advice:

Many fewer people would be charged with crimes. They would, collectively, be saved millions of dollars in attorneys fees (not to mention lower taxes from needing fewer prosecutors and judges).

Of those charged with crimes, many fewer would be convicted. They would, collectively, be saved countless years in prison.

Of those who avoided prosecution or conviction, many would also avoid the death penalty. Their lives would be saved.

I’ve always had a small problem with this advice, however, because it seems a bit unrealistic. Unless you live the life of a mafia gangster, never talking to cops isn’t really something you can do. And in a routine encounter, refusing to talk seems like a good way to make the police take a lot more interest in you.

Ken responds to that problem:

People ask commonly ask if this advice might lead police to suspect them of wrongdoing, or if it might even lead to their detention or arrest. Yes, it might. Life carries difficult choices and risk assessments. One of those risk assessments is whether, in an interaction with police, it is more dangerous to talk, or more dangerous to shut up. My point, in advocating shutting up, is to suggest that people’s risk assessment is often misguided: distorted by the cultural message that cops are the thin blue line of heroes we should trust, colored by our misplaced faith in our ability to talk our way out of situations, and incorrectly premised on the belief that cops asking questions will react fairly or in good faith to the answers. People substantially underestimate the negative risks of interactions with law enforcement, and substantially overestimate the upside of such interactions.

That sounds reasonable, but I think Ken and the other lawyers are also suffering from some mis-estimations of their own, due to selection bias.  Their clients may have gotten themselves arrested by talking to cops, but people who talk to cops and don’t get arrested are not people they meet as clients. Their clients are a biased sample of all the people who talked to cops. From the lawyers’ point of view, nobody ever talks themselves out of trouble by talking to the cops, but the reality is that we do it all the time.

Many years ago, when I was in college, a cop pulled me over at night and came up and asked me if I owned the car I was driving. I explained that it was registered to my father. He asked me a few routine questions, which I answered. It turned out that another cop had seen someone steal a car and radioed a description to the cop who stopped me, but when they realized I wasn’t the guy, they let me go.

A few years later, I was leaving my girlfriend’s apartment at around 1am, and a patrol car pulled up and the officer started asking me who I was and what I was doing out at night. I explained about my girlfriend. He then asked me why I had so many keys on my belt, explaining that some of them looked like special keys that thieves used. (They were actually Medeco high-security keys, but I had the presence of mind not to demonstrate my knowledge of keys and locks to a cop who suspected me of being a thief.) I explained that I worked at a college maintaining equipment and I had to have access to a lot of rooms. I showed him my work ID, and he let me go.

A few years ago, I was walking in a nearby park with my camera and a cop pulled up to question me. He said somebody has claimed I was taking pictures of children. I could have refused to talk to him — taking pictures of other people’s children isn’t even a crime — but instead I answered a few questions and let him look at the pictures on my camera. I quickly got the sense that he was just going through the motions — he didn’t even ask for my name — and after a few more minutes he let me go.

I’ve had a few more routine encounters with the police — traffic stops, reporting crimes, as a witness to a hit-and-run — and they all ended well. Not a scratch on me. Not a night in jail. Maybe clamming up and not talking wouldn’t have done any harm either, but it feels like something that would have drawn more attention to me in what were otherwise routine encounters for the officers.

However, Ken goes on to raise a very interesting point:

My advice to shut up is colored, in part, by privilege. I was reminded of this yesterday when Los Angeles County Sheriff’s Deputies searched Justin Bieber’s house. I praised Bieber for shutting up and declining to talk to the cops, and joked that criminal defense attorneys could shame clients into better practices by asking why they aren’t smarter than Justin Bieber.But Justin Bieber and I — and many of my clients — share a crucial quality: we’re affluent and fortunate. This privilege makes us better able to endure the potential downside risks of shutting up. If we get arrested on a petty or bogus charge by a pissed-off cop, we can make bail. We won’t spend weeks or months in custody on that bogus charge because we can’t scrape together a few thousand dollars. Maybe we’ll spend the weekend in jail, because cops love to arrest you Friday afternoon, but we’ll get out in a few days at most, and in the meantime we won’t lose our jobs. Because we have families and support systems, if we do get thrown in jail on a bogus job by an angry cop, the Department of Child and Family Services won’t take away our children, plunging us into another broken system we have neither the money nor the knowledge to navigate. If the cops tow or impound our car, we can afford to pay the few hundred to few thousand dollars to get it out, and we won’t lose our jobs for lack of transportation. Even if we do lose our jobs because of a bogus and retaliatory arrest, we have savings, and families with savings, and we won’t swiftly lose our homes. If the police choose to retaliate against our silence with petty tickets and infractions and fines rather than arrest, we can fight them or absorb them.

That’s a privilege. Poor people don’t have it. Poor people live on the razor’s edge, and a bogus retaliatory arrest can destroy them. Retaliatory and capricious enforcement of petty crimes and infractions can destroy them financially. Police wield disproportionate power over them, and the criminal justice system and its agendas (like the War on Drugs) disproportionately impacts them. Police are more likely to use force against poor people and for the most part can do so without any significant risk of discipline.


I maintain my advice to shut up. But I acknowledge it’s easier and safer for me — and for most of the people reading this blog — than it is for the people who most frequently encounter the police.

Scott Greenfield’s thoughts on Ken’s post are thought-provoking as well:

The irony of Ken’s caution is that the folks most in need of this advice are the people most likely to be in the position of being the target of police scrutiny.  Thus, those with the least privilege in society are the most likely to be subject to police questioning and the risk of suffering arrest, or at least harassment, for their refusal to answer questions.

(I’m not sure if irony is the right word here. That sounds more like cause-and effect. But I digress.)

While the affluent are miserable at remaining silent, largely because they perceive no threat from the police by virtue of privilege, the poor, the black, the powerless, can’t remain silent because they are the subject of questions so often that the last thing they want is to force the hand of police to arrest them rather than push them around a bit before cutting them loose.

I’m somewhat privileged too. Not as much as Justin Bieber, but enough to realize that poor people, especially minorities, have a lot more police encounters than I do. And yet, as with me, the vast majority of those encounters end without an arrest. We all have a lot more encounters with police than our encounters with criminal defense lawyers would indicate.

Scott has said on numerous occasions that “Don’t talk to cops” is legally insufficient, but I’ve often thought that in its absolutism it’s not very practical either. It’s a bit like telling your children “Never talk to strangers.” That may seem like a rule that will keep your children safe, but then the next time you take them out with you to the mall or the movies or the zoo, what happens? You spend the whole day talking to strangers — clerks, guides, bus drivers, waiters, people you ask for directions. And then one day you drop your children off at day care or preschool where they’re surrounded by strangers, and then when you see them again you ask if they made any new friends. Whatever safety rules you’re trying to teach your children, “Never talk to strangers” isn’t really the rule you expect them to follow, because sometimes talking to strangers is what you have to do, and often it’s a good thing to do.

I think it’s almost as unrealistic to expect people to “Never talk to cops,” because many people can’t afford to pay the price of being uncooperative. (Heck, I’ve read accounts by criminal defense lawyers who answered questions from suspicious law enforcement officers when they didn’t have to — one because a delay would cause him to miss his plane, the other because he had his dog with him in the car and he was worried what would happen to the dog if he was arrested.) And then sometimes the duties of good citizenship demand cooperation with the police, such as when reporting crimes or providing information that assists an investigation.

Maybe we need a better rule.

I write a lot about laws and lawyers, but I normally avoid commenting on issues of client representation. I feel comfortable opining on civil liberties or the justice system in general because while I may not have expert knowledge, these things are of general importance to all citizens, and we all have a stake. But it’s a very different matter to question a lawyer’s professional decisions. Except in a few obvious cases — missing filing deadlines, drunkenness, sleeping during testimony — I usually prefer to leave the commentary to someone more qualified.

When the Rakofsky saga first broke in the blawgosphere, I thought it sounded pretty bad — a lawyer with no trial experience taking on a murder case, resulting in a mistrial when the judge lost patience — but since dozens of lawyers, including Jeff Gamso, Scott Greenfield, and Eric Mayer had all posted about it, I just couldn’t think of anything to add, so I never posted.

(That turned out to be a lucky choice, because Rakofsky sued almost everyone who blogged about it. Naturally, the lawsuit defendants blogged about the lawsuit too. It made for fun reading — many of the lawyers got a kick out of being sued — but it would have been an expensive disaster for me, and by the time it was all over two years later, I think even the lawyers were tired of it.)

So when Mark Bennett, another Rakofsky defendant, posted about a similar incident in which a lawyer with the delightful name of Maverick Ray took on a capital case with after less than a year as a lawyer, I wasn’t planning to say anything about it either, even though Bennett invited people to speak out in the comments. (Many did, and Gideon, Rick Horowitz, and Scott Greenfield all posted about it.)

But then it hit me: I actually have an advantage here. You see, all those guys have experience practicing law, whereas I learned everything I know about law by reading legal thrillers. I’m even familiar with this plot: Young lawyer takes on a big case and ends up way over his head. That’s a classic first act to a courtroom drama. Of course, the author has to give the lawyer a good reason to do something so crazy…

I can almost write the jacket copy:

Maverick Ray and Biff Groder grew up together, inseparable friends, sharing adventures on the mean streets of Houston. Their adult lives took different paths, however, when Mav went off to college while Biff continued to knock about in their old blue-collar neighborhood. But when Biff finds himself arrested by the police and accused of a savage murder by a politically ambitious prosecutor, he calls his childhood friend to save him!

Maverick wants to help, and he’s eager for a chance to rekindle his romance with Biff’s sister Jennifer, but with less than a year of experience as a lawyer, he knows he shouldn’t take the case. Then Mav discovers that the lawyer appointed to defend Biff has a secret connection to the victim’s family, and that he’s actually doing everything he can to destroy Biff’s defense! Trusting no one now, Biff insists that Maverick take the case, and suddenly he has no choice but to risk everything if he wants to keep his oldest friend off death row!

I’ll bet he also has a plucky paralegal and a tough-as-nails ex-cop private investigator — who used to be married to Mav’s sister and still carries a torch — and that after work he drives his classic muscle car to his home on the beach — inherited from an eccentric uncle — where he’s greeted by his ex-girlfriend’s cat and an amusingly clumsy dog.

At least I hope that’s what happens, because if he’s going to handle cases like he’s a character in a novel, he really should go all out.

Update: The Huntsville Item article by Cody Stark claimed that Maverick Ray has only been out of law school for six months, but Jeff Gamso did some checking, and the State Bar of Texas website says he has been out of law school for a year and received his bar card about seven months ago. This post has been changed to reflect that.