A few days ago, Gabriel Malor pointed out this story:

LOUISVILLE, Ky. (WDRB) — A judge has dismissed charges against two men who were convicted in the death of a woman as part of a “Satanic ritual” more than 25 years ago.

This is an all-too-familiar story. Garr Keith Hardin and Jeffrey Dewayne Clark were convicted of murder in 1995.  But after serving 20+ years in prison, DNA testing blew up the case:

Key pieces of evidence from the 1995 trial include a single hair found on victim Rhonda Warford’s sweatpants that an expert at the time said was similar to the hair of Hardin, her former boyfriend. Former Louisville Metro Police Detective Mark Handy said Hardin told him he worshipped Satan and was interested in sacrificing people. And police found a blood-stained cloth with what they called a “chalice” in Hardin’s bedroom, which they said was evidence that he killed animals and drank their blood as part of his worship of Satan.

But since then, DNA analysis shows the hair does not belong to Hardin. The blood on the cloth was actually Hardin’s blood, not an animal. And Handy was later found to have lied under oath about a different murder case, which defense attorneys say question his credibility.

(It will not surprise followers of the American justice system that the case included a jailhouse snitch: “At trial, the state relied on the testimony of a jailhouse informant who claimed that Clark confessed to the crime. Shortly after Hardin and Clark’s convictions, a letter surfaced revealing that the jailhouse informant attempted to solicit another inmate to fabricate testimony against Hardin and Clark to receive a reduced sentence.”)

The judge vacated the conviction, and an appellate judge upheld the ruling. Hardin and Clark were free…until prosecutors charged them with new crimes: Kidnapping and perjury. The kidnapping charge was based on evidence from the original case which they felt had not been discredited. They might sincerely believe that, for all I know. But the perjury charge is pure vindictiveness:

It also charges Clark with perjury, for testifying under oath in 2015 in a hearing on the motion for a new trial that he had never admitted any involvement in the murder when in fact he had previously testified before the Kentucky Parole Board in April 2006 that he helped move her body after her murder.

In other words, lock a man in a cage, threatening to keep him locked up if he doesn’t confess (because it worked for Moscow show trials), then when his conviction is vacated a decade later, use that coerced confession to prosecute him for perjury.

How the hell do things like this happen?

I’m not sure where and how things went wrong here, but they way the case against Hardin and Clark played out in our justice system is a reminder of something I’ve learned in years of blogging about policy issues: You can’t judge a policy by its intentions. The proper measure of a policy is how it functions in the real world. Once you understand how it really works and what it really accomplishes, you can work backwards to develop a better description of the policy, one that has the power to explain your observations of it.

Illinois law blogger Matt Haiduk does something like that in a post that looks at how “guilt” really works in our criminal justice system.

Guilt is a burden that can turn a witness into a defendant or turn the accused into an informant. Guilt is the negative attention of those in control.

Officer Lawman sees a baggy with traces of a green plant-like material on the center armrest of the rear seat in a car and tells all four occupants, “If somebody doesn’t claim this you’re all getting arrested…” Somebody–often the guy who’s already been arrested several times, even when it’s not his–always claims it.

One of them is really guilty or all four of them are “sorta” guilty, right?

Maybe the good officer shows up to that same house he’s been called to nearly every night and, well, “It’s the third trip here tonight, so somebody’s going to jail.” Who cares if they actually should? Truth doesn’t really matter. Doling out a little guilt solves the problem, at least for the time being.

…

Four guys go to rob and murder a rival gang member. All of them get charged, but how strong is the case when all the living witnesses are defendants (and didn’t talk to the police)?  Prosecutors decided who they really want to go after (maybe the guy with the worst record… or the guy who they think is the biggest jerk) and ease a little of that guilt burden of the guys they want for witnesses.

I think I’m pretty cynical about our criminal justice system, but Matt has spent years seeing it up close. I’ve got nothing on him:

Guilt is power. Guilt is control. Guilt is not truth or facts.

It’s sometimes created from thin air — often from the mouths of jailhouse snitches, mistaken witnesses, or others with a vested interest in a case (like an ex-spouse, or hated neighbor).

Seeing guilt as power the government exerts upon people is the only way to understand the system.

Read the whole thing.

There was an interesting criminal case out of Fairfax, Virginia the other day, involving a young lady named Sandra Mendez Ortega who stole some jewelry from Lisa Copeland while cleaning her house. The Washington Post lays out the events this way:

The case began with Copeland’s discovery in September 2016 that her engagement and wedding rings were missing from the container where they were usually kept. The engagement ring had been her grandmother’s, made in 1943, and the two rings were appraised at $5,000 in 1996, Copeland said. Copeland didn’t realize a third, inexpensive ring had been taken until it was turned in.

Fairfax City police investigated and interviewed the three women who had cleaned the home. All three denied taking or seeing the rings, court records show, and no one was charged.

But after the interviews, Mendez Ortega reportedly felt bad about the theft, admitted to her boss that she had the rings and turned them over to him. The police were contacted and Mendez Ortega confessed to them as well, saying she returned the rings after learning they were valuable. The police had her write an apology letter to Copeland, in Spanish, which said in part, “Sorry for grabbing the rings. I don’t know what happened. I want you to forgive me.”

The case went to trial, and the jury found her guilty. But in Virginia the jury is not only the finder of facts, but also has the job of deciding the sentence. I’ve heard Virginia criminal defense lawyers complain that this can lead to very harsh sentences, because jurors lack the sense of proportion that a seasoned criminal judge would have. In this case, however, the jury went the other way:

What the jury did was extraordinary. They felt bad for the young woman, pregnant with her second child, and agreed that she had made a dumb, youthful mistake. Reluctantly, they convicted her of the felony. But the fine they imposed was her daily pay as a maid, $60. And then they took up a collection and gave her the money to pay the fine.

Naturally, this has pissed off some law-and-order types. Gatewaypundit hilariously lives up to the stereotype by blaming the whole thing on liberal jurors who are just looking for a chance to hurt America by granting special favors to illegal immigrants:

AUTHOR’S NOTE: Fairfax County residents are some of the best educated, most worldly and wealthiest and liberal people in the nation. They can spot an illegal alien right away as they have willfully turned the D.C. suburb in to a haven for illegals. Mendez Ortega’s appearance on the witness stand during the penalty phase after her conviction made it clear she fit one of the profiles of illegals-she doesn’t speak English and worked as a a maid.

Fox News also leads with the illegal immigrant angle, and runs essentially the same story under the headline “Couple’s fury as jury pays illegal immigrant maid’s fine after jewelry theft conviction.”

That’s referring to the victim, who comes across as remarkably unsympathetic in news reports. I don’t mean that she has no sympathy for the woman who stole from her (although she doesn’t seem to), but that after reading her statements to the media I have very little sympathy for her. Obviously, stealing from her was wrong, and it was also a crime, but in the aftermath of the trial, she comes across as disturbingly vindictive. For example, regarding the letter of apology that Mendez Ortega wrote to her:

Copeland said she has never seen that letter, and that Mendez Ortega has never apologized to her in person. “Never saw it,” Copeland said. “Never heard about it until the trial, during sentencing.”

Well, the reason Copeland never saw the apology letter has nothing to do with Mendez Ortega. Copeland never saw the letter because the Fairfax police never gave it to her. That’s because they were deceiving Mendez Ortega when they got her to write a letter to Copeland. It a trick to strengthen the case against her, since almost anything she’d say in an apology for the theft would also be an admission of damaging facts. It’s a confession in the defendant’s own hand, which will be damning in court.

Nevertheless, Sondra Mendez Ortega most certainly did apologize for what she did. It’s not her fault that the police never delivered it. And as for an apology in person before trial, I’m pretty sure that’s an insanely bad idea. At the very least it would be another confession, and it could easily be construed as witness tampering.

“I was outraged,” Copeland said. “I was just flabbergasted. I didn’t think $60 equated to the crime at all.”

That was my first reaction too, but when I think about it, the outrage seems overblown. After all, this was

• a non-violent crime
• by a first-time offender
• who turned herself in,
• returned everything she took,
• and showed up to face her trial.

Given all that, the jury’s sentence of time-served with a nominal fine (and the collateral consequences of a felony conviction) doesn’t seem completely out of line. Many judges are aware of what jail can do to people, and they’re reluctant to put first-time offenders through the system for fear it will make everything worse.

At trial, the facts were not really in dispute. The jury did not hear from Mendez Ortega during the case in chief, but they were already sympathetic to her. “We didn’t feel she should have been tried and convicted,” said Memmott, the foreman. “We tried every way we could to find some way of not convicting her. But the legal standard was very clear.” Two other jurors agreed that the felony conviction was appropriate, given the facts and the law.

I’ve been on a jury that convicted someone of a felony. It’s not a fun experience, signing that verdict sheet and knowing I’m saddling them with a felony record and possibly consigning them to a cage for a long time. Just because they deserve punishment doesn’t mean it feels great to dish it out. All things considered, I’d rather I never have to do that again. Which is why this bit makes me so crazy:

Lisa Copeland was amazed. “The fact that she confessed,” she said, “and they didn’t want to convict her? I don’t get this. That’s basically saying it’s okay to steal.”

Good God. The jury may have said they didn’t want to convict her, but they did in fact convict her. So the victim is basically angry because the jurors didn’t enjoy it enough. What the hell?

(Obviously, she’s the victim here, and therefore she deserves some slack, but I can’t help wondering if one of the reasons for the light sentence was that the jury somehow picked up on her vindictiveness, found it as ugly as I do, and decided they didn’t want to give her what she wanted.)

Still, the most frustrating response comes not from the victim or Fox News or Gatewaypundit, but from ethicist Jack Marshall at Ethics Alarms, whose post first brought my attention to the case.

As is usual, I have a number of quibbles with Jack’s analysis. For example,

“Justice had to be done,” said another juror, Janice Woolridge, explaining the guilty verdict. “But there’s also got be some compassion somewhere. Young people make bad decisions. We just couldn’t pile on any more.”

[…]

(Note to juries: your job is to determine the facts and guilt or innocence. Compassion should be left to judges.)

The parenthetical comment is not how things work in Virginia, where jurors are given the responsibility for determining not only the facts but, in the event of a guilty verdict, the sentence as well. Thus considerations of compassion are entirely appropriate.

One of Jack’s commenters explains this to him in a comment, to which Jack responds,

In this case, the judge should have rejected the jury’s fine and imposed one they’d really have to dig down deep for.

That’s also not the law in Virginia. When a criminal jury recommends a sentence, the judge can only lower it, not raise it.

I’m not a lawyer, so I shouldn’t throw too many stones, but since Jack teaches legal ethics for a living, it would be nice if he got the law right. To be fair, this was a free blog post, not professional advice, so he definitely deserves some slack for shooting from the hip. But he’d make his point more effectively if he focused on the jury’s decision making instead of ranting about ordinary Virginia criminal procedure.

However, as I mentioned in a comment (which Jack called “obnoxious and unfair, as well as ignorant”), in the unlikely event that anyone ever asked me if they should hire Jack to teach legal ethics, I would point them to these two statements:

If she had confessed and was remorseful, why did she plead not guilty?

[…]

If you are guilty and admit it, then you don’t try to get lucky with a jury.

Jack is certainly not the only lawyer to think it’s unethical to plead not guilty. (As far as I can tell, it’s pretty much criminal defense lawyers v.s. everyone else — which is practically a criminal lawyer’s job description.) But I think this is the result of confusing the legal meaning of a “not guilty” plea with the common everyday meaning, as Illinois lawyer Jeremy Richey explained some time ago:

Those words do not operate in a vacuum; they are part of our legal system. Our legal system establishes a presumption of innocence for every person charged with a crime and places a burden on the government of proving the accused guilty beyond a reasonable doubt. When a person utters the words “not guilty” in court, all the players (such as the judge, prosecutor, and defense lawyer) understand that the person is requiring the government to carry its burden.

In other words, pleading not guilty is the mechanism by which you secure your constitutional right to a jury trial. And in Virginia in particular, pleading not guilty is a necessary step in claiming your right to be sentenced by a jury instead of a judge. There’s nothing unethical about asserting your rights.

In the comments, Jack attempts to draw a careful line between the ethics of a lawyer and of the client:

An ethical lawyer tells a guilty client that he or she has a good chance of being acquitted, and lets the client decide, after advising the client on the right thing to do. An ethical law-breaker turns himself in, pleads guilty, and accepts the just consequences of wrongdoing.

I see what Jack is getting at here, but it’s nonsense. First of all, on a practical level, how would this work? Is the defendant supposed to meet with her lawyer, discuss her case in detail, listen carefully to his wise counsel, and then just go ahead and ignore everything he recommended? Or do I misunderstand, and when Jack talks about “advising the client on the right thing to do,” does he mean that the lawyer should tell his client to plead guilty? Not for tactical reasons, but because it’s “the right thing to do”?

But why would it be the right thing to do? Owning up to your sins and accepting “the just consequences of wrongdoing” is great ethical advice for, say, a child apologizing to his mother for breaking a vase full of flowers, or a husband explaining to his wife how he lost the rent money at the track. But is has nothing to do with what goes on in a criminal proceeding. Jack is trying to smuggle an awful lot of bullshit into his argument on the backs of the words “just consequences.”

Pleading guilty isn’t the same as accepting the “just consequences.” Pleading guilty means accepting whatever consequences the prosecutor can convince the judge to impose, and there’s no basis for believing those consequences will be just. In an ideal world, the judge will be a neutral party, but the prosecutor will always be your adversary. At best, he’s going to be a stern by-the-book guy, and at worst he’ll be a fucking monster. In any case, the decision will be made by a system that is now biased against you.

So what happens if you feel a 90-day sentence is a just consequence, but the prosecutor is thinking more like five years? Contrary to the implications of Jack’s argument, there’s no a priori reason to assume the prosecutor’s preferred sentence is a just one. Normally, this would be resolved in plea bargaining, where you (through your lawyer) and the prosecutor negotiate to a sentencing plan that is acceptable to both of you. That won’t work, however, if you’ve already committed to a guilty plea, because your only bargaining power comes from your ability to walk away from the bargaining table and demand a trial.

(We can’t be sure, because the news stories don’t say, but it’s quite likely that this case went to trial after an unsuccessful plea bargaining stage. Ms. Mendez Ortega was probably willing to accept consequences for her actions, just not the consequences the prosecutor was willing to offer.)

It’s not sensible to believe that “just consequences” will result from an adversarial system where one side agrees in advance to the other’s terms, and it’s not unethical to refuse to accept such one-sided terms.

Oh my God! They’re going after Squawk!

It all started back in May, when Appellate Squawk (who somewhat disappointingly turns out not to be a bird with legal superpowers but a human female working for the New York Legal Aid Society) published a post poking mild fun at her office’s training about the importance of asking clients to clarify their gender. Here’s a taste:

Lawyer: [Reading from a card] I need to know whether your name expresses your internal deeply-held sense of your gender which may or may not be the same or different from your sex assigned at birth –

Defendant: Yeah, whatever. Then they handcuffed me to a chair and started throwing lighted matches on my lap, causing imminent danger to my manhood –

Lawyer: Tut, tut, gender isn’t a matter of stereotypical physical characteristics –

Defendant:   – so I confessed. But I can prove it’s false because there’s a surveillance tape showing I was on the other side of town at the time. My wife  –

Lawyer:  Your wife? What gender identity does they go by?

Defendant: Yo, are you calling me a FRUIT?

Lawyer: That’s a very discredited terminology. The term is non-binary gender fluid –

Defendant: Will you lower your voice? I’m in a holding cell with 20 other guys, you know what I’m saying?

Lawyer: I’d feel so much better about our relationship if you’d only come out of the closet.

Defendant: But I’m a man. Like Muddy Waters says, “M-A-N, I’m the hootchie cootchie man -”

Lawyer: You sexist pig, how dare you! (Exit)

That should give you the general idea. It’s typical Squawk snark about the absurdities of criminal defense. But apparently it was enough to put some people over the edge, and the Legal Aid Society has started an investigation into the matter.

Scott Greenfield has more details about the original training,

As it turns out, soon after the announcement of the new discrimination and harassment policy, a CLE was held, where the lawyers were instructed that the first thing they must do when meeting their clients was not to ask about the case, not to ask about the defense, not to ask about anything having anything to do with that nasty old-school mission of criminal defense. How horrifying! How exhausting!

No, the first and foremost concern was that LAS lawyers were directed to ascertain their self-identified gender and sexual orientation. It didn’t matter that there was nothing to suggest a gender or sexual orientation issue. They must put it first. And never, but never, call a client “Mr. Smith,” as that would presume their gender, even if no one had ever shown them the respect of using an honorific before. As a last resort, they were trained to use the word “Mx.,” which always serves well in the holding cell to identify defendants who tend not to be particularly woke.

(Scott may be exaggerating a bit. He does that sometimes.) [Update: Scott clarifies in an email that no, he was not exaggerating at all about the substance of the training, which is apparently as self-parodying as it sounds…which is not nearly as self-parodying as the fact that Squawk’s post has triggered an investigation.]

Scott also has samples of the complaints, some of which are kind of amazing.

I am reporting the content of this blog as creating a contributing to a hostile work environment. Please read it. It is terrible.

Some of the complaint is a little more specific.

[Squawk’s] email has served as a huge distraction from doing my job today. I am upset and really troubled that someone who works at the Legal Aid Society-an organization whose motto is to make the case for humanity-is joking about the importance of honoring a person’s preferred pronoun and gender.

Actually, if I understand Squawk’s point correctly, she wasn’t joking about the importance of honoring a person’s preferred pronoun and gender. She was joking about CLE session’s over-emphasis on gender and pronouns.

Yes, I know people with non-traditional gender identities and sexual orientations are going to face special problems when arrested and jailed. I also know this is not news to most criminal defense lawyers. But criminal defense lawyers are supposed to represent the interests of their clients, and I’m pretty sure that for even the most gender atypical of criminal defendants, their main interest when meeting their lawyer is getting the hell out of jail.

It is disturbing that the message indicates that an attorney cannot zealously represent their client while inquiring about a client’s preferred pronoun and gender identity. If anything, by asking a client about their pronoun *furthers* an attorney’s ability to best represent their client.

Well, in the abstract, sure, the more a lawyer knows about their client, the better. But this conversation isn’t taking place in the abstract. It’s taking place in jail. There is no privacy in jail. It’s a terrible feeling, and Squawk doesn’t think their lawyers should be making it worse:

One of the many annoyances of being accused of a crime is having to put up with humiliating questions from your lawyer. Like, “Was your grandmother a drug addict?” “When was the last time you had sex?” or “Do you hear voices?”

So even if the client is a tough-talking street thug who sometimes feels he’d rather be a pretty girl, that may not be the sort of thing he feels comfortable sharing with a total stranger while locked in a cell block with a thousand other tough-talking street thugs.

Then there’s the possibility, also raised by Squawk, that the client may feel insulted that his lawyer is implying he’s less than 110% manly man. We can discuss whether he’s a bad person for thinking that being gay or transgender is an insult, but that doesn’t change the fact that zealous representation will be more difficult if he feels insulted by the very first thing his lawyer says.

But I’m drifting off the main point here. I’m not a lawyer, and I really have no business telling lawyers how to do their job. (Although, some lawyers, damn…) My point is that Squawk’s post wasn’t making fun of LGBTQ people. It was making fun of the people in her office who think LGBTQ issues are more important than proper representation of clients.

Over at Fault Lines, Andrew Fleischman has a post about the idea of letting a jury determine actual innocence. It’s an interesting post — worth a read — but when I read the headline I thought of something a bit different.

Criminal defense attorneys complain about the difficulty of getting a jury to understand the degree of proof necessary for a criminal conviction. They often feel that the jury is setting the bar for a Guilty verdict at something less than “beyond a reasonable doubt.”

My thought (and I know it’ snot original) is that maybe the problem is that we only give the jury two choices: Guilty and Not Guilty. It would be natural for them to regard these as equal choices and lean toward a Guilty verdict if they thought that was more likely, which is a problem because “more likely” is a much less strict standard than reasonable doubt.

Perhaps we could obtain a small improvement in criminal justice by offering the jury a few more choices to pick from, such as Guilty, Not Guilty, and Actually Innocence, with only Guilty counting as a conviction. Or maybe we could offer an array of choices in a familiar form:

Please rate your opinion of the defendant’s guilt on the following scale:

5 – Guilty beyond a reasonable doubt.

4 – More likely guilty than innocent.

3 – Unable to tell.

2 – More likely innocent than guilty.

1 – Innocent beyond a reasonable doubt.

The defendant would only be convicted if all members of the jury picked #5. I suspect prosecutors wouldn’t like a procedure like this, although as long as the court imposes an “all fives or no fives” requirement, it would be the exact same standard of proof.

I know I’m not the first one to think of this. In fact, some criminal defense lawyers like to explain the different levels of proof to the jury so they understand just how strict the “beyond a reasonable doubt” standard usually is. Basically, they’re trying to get the jurors to think about the reasonable doubt standard as the highest in a stepped series of levels of proof. So why not make it explicit?

I don’t know if it makes sense to give the other levels any legal significance — e.g. a verdict of “innocent beyond a reasonable doubt” blocking plaintiffs in a civil suit from claiming otherwise. That might be using the verdict for more than it actually establishes.

Anyway, posting here has been light lately, so I just thought I’d throw that out there.

I was going to write an overview of the technical issues involved in the FBI’s demand that Apple help them break into the iPhone 5C that was being used by San Bernardino shooter Syed Farook, but it soon became apparent that the issues were too complex for easy summary, and the story keeps changing as more details leak out.

On the other hand, I would like to respond to a recent op-ed by Manhattan district attorney Cyrus Vance (brought to our attention by Scott Greenfield) arguing for a government exception to securely encrypted phones:

iPhones are the first warrant-proof consumer products in American history. They compel law enforcement to deploy extraordinarily creative prosecutorial strategies – and obtain state-of-the-art tools – to carry out even the most basic steps of a criminal investigation. I applaud our federal colleagues for their commitment to justice for the 14 killed in San Bernardino and their families.

The magistrate judge’s order rests firmly on centuries of jurisprudence holding that no item – not a home, not a file cabinet and not a smartphone – lies beyond the reach of a judicial search warrant. It affirms the principle that decisions about who can access key evidence in criminal investigations should be made by courts and legislatures, not by Apple and Google. And it provides the highest-profile example to date of how Silicon Valley’s decisions inhibit real investigations of real crimes, with real victims and real consequences for public safety.

I can certainly see what he’s getting at. Up until now, when a court ordered some evidence seized, the government’s ability to carry out that seizure was never in question. The agents of law enforcement have been able to kick open every door, tear down every wall, and break every box. But strong encryption now challenges that idea, and people like Cy Vance don’t like it.

I have a few responses to Vance, starting with “So what?”

Law enforcement agents used to be able to get any evidence they wanted, but now some new technology means they can’t. So what? Things change, the world moves on, the organizing principles of society evolve. Slavery, the divine right of kings, Papal inquisitions — all have fallen. Now maybe it’s the end for the principle that courts have “a right to every man’s evidence.” That’s kind of an open-ended argument, but then Vance’s argument is basically little more than “It’s always been that way.” I think it’s quite reasonable to respond that just because it’s always been that way doesn’t mean that it always should be.

On the other hand, I could also argue that the rule doesn’t really go where Vance wants it to because (1) the current situation is already in complete compliance with the rule, and (2) there is nothing to which the rule could apply.

I need to go into a bit of technical detail. The FBI’s problem is that sensitive data files on an iPhone are strongly encrypted in such a way that reading the unencrypted contents requires one of a handful of “class keys,” which are in turn encrypted using the user’s passcode. So to get an iPhone to read its data, you have to provide the passcode to decrypt the class key it needs to decrypt the file containing the data.

(I’ve simplified this description of iPhone security quite a bit. If you want more details, Dan Guido has a mildly technical overview and you can get more background technical information from the Apple iOS security whitepaper, especially the “System Security” and “Encryption and Data Protection” sections. It’s absolutely fascinating, if you’re into that kind of thing.)

If you have a modern iPhone with a passcode set, you can see all this for yourself. Call your iPhone from another phone that is in your contacts list. When your phone rings, it should display the name of the other phone’s owner, which it got by searching your contacts list for someone with a number matching the calling phone. Now turn your iPhone all the way off by holding down the power button for a few seconds to display the slider you can use to power it off. Then turn your phone back on by pressing the power button for a few seconds, but don’t enter the passcode. Now try calling your phone again from the other phone. This time the phone should only display the calling number, but not the name from the contacts list. Your phone won’t be able to display contact names until you enter the passcode again.

This shows that your passcode is more than just a locking mechanism, it’s a decryption key: Without it, your phone literally cannot even read its own contacts list. It also can’t read any of the other sensitive files that are also encrypted to require the passcode. An iPhone for which the passcode has not been entered doesn’t just refuse to give you access to its data. In a fundamental way, it can’t even read the data.

That’s the FBI’s problem. The passcode is not stored on the device, and the copy of the passcode in Farook’s brain is no longer accessible because he’s dead, so the FBI has no way to get his iPhone to decrypt any of his files without a code-breaking effort.

That brings me to the first part of my answer to Vance: The FBI already has all the evidence on Syed Farook’s iPhone. They have physical possession of the phone itself, including the internal flash drive that contains all the data. It’s a relatively minor technical task to remove the drive from the iPhone and attach it to another computer so they can read every bit of it. Of course, the files they read will still be encrypted, so they won’t be able to make sense of the data, but they do have all the data on the phone. No one, including Apple, is keeping it from them.

This may sound like some kind of philosophical hair splitting, but it’s the ground truth of the situation at the technical level. It’s confusing because we often speak of encryption using the metaphor of a container. We describe encrypted messages as being like envelopes with plaintext messages inside, and we talk of using keys to unlock stored data. In reality — the reality of the hardware and software — the relationship between encrypted and unencrypted data is not one of containment but of transformation: Plaintext data is transformed into encrypted data using an encryption algorithm and a key, and encrypted data can only be transformed into plaintext data using a related algorithm and the right key. If the key is lost, transformation of encrypted data into plaintext may not be possible.

When Vance asserts that “no item – not a home, not a file cabinet […] – lies beyond the reach of a judicial search warrant” he’s not speaking about merely metaphorical containment. If the court orders a home searched for drugs, that search will be successful if there are actually drugs in the home. If the court issues a warrant that includes searching a file cabinet for financial records, it’s because there’s reason to believe the file cabinet contains the records. More fundamentally, it makes sense to require the production of evidence because the evidence might exist.

That’s my second point of argument: No matter how much the FBI or the judge may want to seize this data, there’s simply nothing to seize. The data existed at one point, but now it’s all been transformed into unreadable gibberish, and the original data is gone. What the government wants — an unencrypted copy of the data on Syed Farook’s iPhone — doesn’t actually exist anywhere in the world.

As a practical matter, this isn’t a get-out-of-jail card. Don’t go trying to convince a judge that you don’t have to turn over financial records on your computer because your hard drive is encrypted and you haven’t entered the key to unlock it. That’s probably not going to work when you routinely decrypt files every day. (But I’m not a lawyer and this isn’t legal advice, so if you actually find yourself in that situation, talk to your lawyer.)

On the other hand, if you truly don’t have the decryption key, then the unencrypted files on your computer actually are beyond the reach of the court. Of course, you might be in for a really bad time if the judge doesn’t believe you, or simply doesn’t care about what you think is possible.