Cry harder! Ha ha ha ha ha!!

Ahem.

But…I have to admit I’ve never been a fan of this case. I’ve spent a fair amount of my blogging life complaining about bullshit prosecutions, and Alvin Bragg’s case against Trump smells like bullshit. Let me see if I can explain.

I remember the first time I traveled on business, I filled out my expense report, and a few days later someone in the accounting department angrily called me to his office and proceeded to berate me for mis-categorizing expense items.^[1]Pro-tip: You can sometimes back these people off by apologizing and then asking for the manual that explains the correct procedures, which they never have. I had charged some hotel restaurant meals to my room and then categorized payment of my hotel bill as a hotel expense. What I should have done is broken out the meal portion of the hotel bill as a meal expense.

That’s basically what Trump is accused of doing. Trump gave his lawyer a bunch of money, some of which was to be used to pay off Stormy Daniels, but on the books the entire amount was recorded as legal fees. Apparently, this was not the right way to record the payment to Daniels. Still, recording a payment to a lawyer as a legal fee doesn’t strike me as an outrageous crime.

There’s a difference, of course, in that I had simply erred, whereas Trump was deliberately trying to hide the payment to Stormy Daniels by laundering it through his lawyer. Falsifying business records is a crime in New York, but it’s a misdemeanor for which the statute of limitations has long since run out. That’s probably why prosecutors decided to charge Trump was with falsifying business records to conceal other crimes, which makes it a felony, and the felony version of the crime has not yet run out the clock.

What makes it even stranger is that prosecutors have not really spelled out the crimes that trump is supposedly concealing. Or rather, they spelled three possibilities for the jury to choose from.

One possibility is that Trump and/or his lawyer committed campaign finance fraud because the hush money payment to Stormy Daniels was in furtherance of the goal of getting Trump elected, thus making it effectively an unreported contribution to his campaign. This all hinges on exactly why Trump and/or his lawyer were motivated to pay the hush money, which quickly gets into murky questions of motivation and intent that I’m not sure can ever be known. Also, I just think a lot of campaign finance law is arcane and stupid.

Another possibility is that Trump was committing tax fraud. Trump’s payments to Michael Cohen were reported as income to Cohen (presumably so that Trump could argue it was Cohen, not Trump, who was paying off Stormy Daniels). This might actually raise Cohen’s taxes, which is a pretty weird way to commit tax fraud.

The third possibility offered by the prosecution is the theory that Trump falsified business records in order to hide the falsification of other business records. This sort of circular reasoning is a bit of a head scratcher.

(Reason‘s Jacob Sullum does a pretty good job of explaining some of these problems in more detail.)

Making matters worse, the Jury is not required to agree on which of these three possibilities is true. As long as each juror believes at lease one of them is true — the campaign finance fraud, the tax fraud, or hiding other other fraud — they can vote guilty and the vote is considered unanimous. (Assuming they find the other elements of the crime proven as well.) That sounds wrong, but it’s the rule in New York.

I’m not making a legal argument that Trump is not guilty. My guess is that the prosecutor, the judge, and the jury followed the letter of the law in convicting Trump. But that doesn’t mean it isn’t bullshit.

I’m also not arguing that Trump was singled out for prosecution in an especially egregious way. Bullshit prosecutions happen all the time, just usually not to people that make it news. Ordinary people get pulled over and ticketed for a workplace parking sticker or an air freshener hanging from the rear view mirror because it violates the law against obstructing your view out the windshield. For decades, New York arrested people for possessing utility knives bought from Home Depot, because they technically met the test for a prohibited “gravity knife.” If you’re in the same room with some illegal drugs, you can be found in “constructive possession” even if you never touched the drugs. Prostitutes who work together have been charged with “pimping” each other. People have been arrested under “open container” laws because they had an open box of beer cans, even though all of the cans were still sealed.

Some might argue Trump’s case is different from those other examples because it was being done for political reasons. But bullshit prosecutions happen for all kinds of reasons. Cops give out bullshit tickets to meet job performance “activity” targets.^[2]Which are totally different from quotas. Nobody has ticket quotas any more, just “activity” targets, got it? Prosecutors press bullshit charges to go after people they don’t like, or to get their names in the news. Bullshit prosecutions happen for bullshit reasons, including bullshit politics.

Washington, D.C. criminal defense lawyer Jamison Koehler describes Trumps’s recent experiences this way:

Narcissist that he is, Donald Trump approaches life as if he is the first person ever to learn or experience something.

[…]

And now the world – through Donald Trump – is learning about the criminal justice system in the United States.

We have learned, for example, that a defendant cannot speak out in court.

The defendant must defer to the judge.

The defendant cannot criticize, stare down or otherwise intimidate witnesses.

Courtrooms can be cold and uncomfortable.

[…]

The defendant has the constitutional right to call witnesses on his own behalf. That “a lot of witnesses were not called” can only be blamed on one’s own lawyers.

The defendant has a Fifth Amendment right to a grand jury and indictment and notice of the charges against him. It is therefore probably not a good idea to complain that “the defendant doesn’t even know the charges against him.” This might serve as an admission that the defendant was either too ignorant or too lazy to have figured this out.

The defendant has a constitutional right to testify on his own behalf. This should not be confused with a court’s gag order preventing the defendant from making certain out-of-court statements.

The most unusual thing about this bullshit prosecution is that it happened to a rich and powerful white dude.

Then there’s the matter of karma. Not in the religious sense, but in the colloquial meaning of someone getting what they deserve.

From the “Polish Brigade” to Trump University, Donald Trump has been scheming and scamming for decades. He is famous for not paying his bills, even to the point of multiple bankruptcies that have left other people holding the bag. He and his father created a sham corporation to funnel money around without paying taxes. He involved Don Jr. and Ivanka in a fraudulent SoHo construction project which seems to have used money from a Russian financial criminal. Trump has lost a bunch of civil suits over these kinds of things, but he’s never before been charged. It would be crass of me to suggest that his donations to the Manhattan D.A.’s election campaign had anything to do with it.

Despite his his financial shenanigans and connections to criminal figures, Trump somehow got the State of New Jersey to let him run a bunch of casinos, which he ran into the ground. How exactly he pulled this off is unknown, but it all smells a bit swampy.

Trump has been scamming his way around the criminal consequences of his actions for his entire life. In 2024, it finally caught up to him. All that shit he pulled made him a lot of enemies, and now a few of them — a porn star, a disgraced lawyer, and a few others — have come together to help a politically ambitious District Attorney run a questionable prosecution that just might put Donald Trump in jail.

It’s a bad way to run a criminal justice system. But it’s pretty good script writing.

On personal level, I have to relax and remind myself that none of this actually involves me. Had I been responsible for this case, I probably would have declined to prosecute.^[3]I would totally have pursued that classified documents case, because that seems open and shut. The Georgia election interference case sounds like it would be pretty good if it weren’t for the decision to use RICO, and I don’t know enough about the Federal election interference case to tell if it’s legit. But it wasn’t my responsibility, so I have no duty to resolve the tension between my policy preferences for the criminal justice system and my utter loathing of Trump. I can question the ethics of his prosecution and still enjoy watching bad things happen to him.

With no responsibility comes the freedom to say fuck that guy.

This post by Mark Draughn at Windypundit was originally published at When Bullshit is Karma

You’ve been through other waves of tech hype promising to revolutionize legal practice, and you’re not going to fall for it this time either. Seeing as I’m a trained computer scientist, practicing software developer, and all-round tech geek, I am here to tell you that is absolutely the right attitude. AI is not going to revolutionize your legal practice.

However, if you’re careful, I think it could help.

(I also think AI could help other professionals besides lawyers, but I’m writing this for lawyers because I know I have a few in my audience. And because it’s more provocative that way. I need attention.)

To be clear, I’m not trying to sell you on using AI in your practice. I know many of you have been resisting, and I understand your skepticism. But I’ve been learning a bit about AI over the past year or so, and I think there are a few things that might be worth your time to try out. Obviously, I don’t know enough about being a lawyer to be sure any of this can help, but I’m pretty sure it won’t hurt. (Except for wasting some of your time.)

When I used to work in the legal tech field, one of our guiding principles was that the most effective legal technology doesn’t help with the core practice of law. It helps by making some of the peripheral activities more efficient — billing, document retrieval, managing discovery, document formatting, tracking service of process — so that the lawyers can focus on what they are best at. I think the same principle applies to AI.

Two quick caveats before we go:

• I am not a lawyer, nor did I consult with lawyers before writing this. I.e. I’m guessing a bit here.
• AI can mean a lot of things, but for this post I’m only talking about generative large language models and ChatGPT in particular.

So if you’re wondering if AI could help your practice, here are a few suggestions to try.

The Iron Rule of AI Safety for Lawyers

So how can AI help? Or more importantly, how can AI help without hurting?

I think the most important safety measure is don’t let the AI speak for you. The big pitch for a lot of AI these days is that it can generate documents — motions, contracts, discovery demands. But if you read the stories about lawyers who have gotten in trouble for using AI, that’s exactly how they used it. They prompted the AI to write a document for them, and then sent it to someone — often a judge — without fixing all of the AI’s mistakes.

In theory, you can review and revise the AI’s document before sending it off, but that’s going to be a lot of work. Unlike a junior associate, you can’t train the AI to follow firm-wide guidelines. It will generate content in its own style, organized whatever way it sees fit, requiring significant effort to edit and align with your standards.^[1]Technically, some AI systems (including some versions of ChatGPT) can be trained using a process called fine tuning, so you could feed it example documents to train up a custom variant of ChatGPT more aligned with your needs. However, that would be a substantial technical project, and it would require multiple training and evaluation cycles. It’s not something most small firms would want to do.

You can revise your prompts to make the result more like what you want, but the AI is still going to do things you don’t like. And you’ll have to fix those things every time. Sometimes the AI will do totally off-the-wall stuff, like citing made-up court cases or referring to non-existent people. Editing the AI output will be a lot of work — possibly more work than if you just wrote it yourself — especially if you could just revise a similar document you already have on hand.

I believe it was either Eric Turkewitz or Scott Greenfield who coined the phrase “If you outsource your marketing, you outsource your ethics,” as a warning not to let strangers create your marketing materials. Letting an AI create your work product is probably even worse.

The key is to use the AI for tasks other than document generation.

Ill-Defined Searches

First of all, you can use an AI like ChatGPT as a kind of search engine to find answers when you can’t come up with good search terms.

For example, if you’re trying to remember an old movie about a hostage drama on a train, and you remember that Walter Matthau was in it, you can Google “hostage drama on a train starring Walter Matthau” and Google will find it.

But suppose you can’t remember Walter Matthau’s name. All you remember is that the movie starred an actor who was also in the original Odd Couple movie. Google Search won’t be much help.^[2]Unless you have access to Google’s AI search capabilities, which may be rolling out as I write this. But ChatGPT can figure it out:

Me: What was that hostage drama on a train that stared an actor who also starred in the Odd Couple movie?

ChatGPT: You’re referring to the 1974 film “The Taking of Pelham One Two Three.” The movie is a thriller about a group of criminals who hijack a New York City subway train and hold the passengers hostage for ransom. The film stars Walter Matthau, who also starred in “The Odd Couple” as Oscar Madison.

Now you have enough information to do a proper Google search for “The Taking of Pelham One Two Three” and verify that it’s really the movie you were thinking of.

I think this will also work with court cases. ChatGPT should be able to find cases based on details you remember from the case or what areas of law it affected. Trivially, I can prompt the AI with “What’s the legal case from the last century that overthrew the case that established the ‘shouting fire in a crowded theater’ standard?” and it quickly finds Brandenburg. ChatGPT should be able to find more obscure cases as well, but I don’t know enough about law to think of any good test queries.

Of course, ChatGPT is well known for hallucinating court cases that don’t exist, so you should definitely check if the case exists and is really what you were looking for. If it’s not the right answer, continue the conversation with a “Nope. Try again.” You might want to give it more hints if you can think of anything, or at least try explaining what’s wrong with what it found. You might also try asking it for the best 5 or 10 answers it has.

(You can also use this kind of AI search for many other pieces of public knowledge that you might need to track down — the names of corporations, cities meeting certain criteria, dog breeds, books, movies, celebrities, and so on. Again, verify the answers before using them.)

I should emphasize that ChatGPT probably isn’t working off the case documents themselves. It’s mostly trained on things people have written about the cases. It will miss what they miss and misunderstand what they misunderstand.

Chat GPT isn’t searching any legal databases or document repositories in real time. It’s not even searching copies of documents. Months or years ago somebody fed ChatGPT a whole bunch of documents, which it analyzed for interesting bits it could use to build its massive neural network. The answers you receive are coming from that neural network as it processes your prompts. Any data that didn’t make it into the network won’t be in the answer. Conversely, any wrong data that made it into the network could also make it into the answer.

Translation

Second, AI can help with translation. If you want ChatGPT to translate something, just ask it like this:

Me: I’m a lawyer speaking to a Spanish-speaking client who is in the courthouse lockup. Please translate the following for him:

Hi, My name is Mark Smith, and your father has asked me to represent you. Your arraignment is in 2 hours, and we have until then to prepare you. But first, how are you? Do you have any medical problem which might require immediate treatment?

Notice that my prompt starts with some background about the conversation to help ChatGPT understand the context. It probably didn’t make much difference in this case, but it’s a good habit to get into.

As with all automatic translation programs, it might not be very accurate. I wouldn’t use it for communicating critical details or in situations where an error could cause great harm. But it will work in a pinch for non-life-threatening conversations.^[3]As I write this, OpenAI is trotting out an upgrade that can do live spoken-language translation on your phone.

The irony does not escape me that this is literally letting the AI speak for you — something I said was a bad idea above. I think this is an acceptable risk for several reasons:

• The involvement of the AI is transparent to all parties.
• Translating your words is substantially different from generating new words to put in your mouth.
• According to some experiments, automated translation using large language models is usually better than most earlier methods of automated translation.
• I did warn you not to use it for anything critical.

That said, involving an AI run by a third-party may have implications for privilege or confidentiality. This is not something I can help with. It’s up to you lawyers to figure it out. The same goes for any other legal or ethical issues related to the use of AI.

Summarization

Third, and here we’re getting into sketchy territory, ChatGPT can summarize documents. Suppose you get a batch of electronic documents in response to discovery. You could copy and paste the text from each one into a template something like this:

Please summarize the following document the way an experienced lawyer would. The document was provided as discovery from an appliance manufacturer that we are suing for producing defective toasters due to poor training of the engineering staff. Give me an assessment of whether or not the document is relevant to the case, paying special attention to issues that enhance or mitigate liability.

—

Insert the document text here.

The prolog in the template accomplishes four things:

• It tells ChatGPT that this is a summarization task.
• It cues ChatGPT to respond as if it were an experienced lawyer. Prompting generative LLMs with a description of the role they are to play has been shown to improve answer quality.
• It provides some background context for the document.
• It makes it clear that the goal of summarization is the assessment of relevance.

You will probably want to adjust the prolog to be more focused on your particular scenario. Don’t be afraid to write a few thousand words if you need to.^[4]When working with a generative LLM like ChatGPT, you should save copies of any prologs you create that turn out to be useful. Then follow the prolog with the text of the document to summarize, and ChatGPT will try to produce a summary and an assessment of relevance.

As with all things AI, you shouldn’t completely trust the results. In particular, LLMs are not fine-grained analytical tools. Don’t expect ChatGPT to sift through your discovery documents and find important revelations. Or rather, don’t assume that a document isn’t worth reading just because ChatGPT didn’t report any smoking guns. This is more of a big-picture approach for a rough classification. So if you’re seeking toaster-design liability clues, you probably don’t need to read an email that ChatGPT says is about employee dental benefits.

You may think you can do this faster and better with a document review team, or even just by glancing at the first page of each document to see what it’s about. And you may be right about that. Like I said, this is a sketchy application for AI.

That said, consider the power of combining this task with the previous one: If you have a lot of foreign language documents, you could use ChatGPT to summarize them in English to help you figure out which ones should be prioritized for a human translator.

I’m pretty sure that some of the major e-discovery tools and document management systems are already offering AI translation and summarization as features. Modern AI could make those features better.

The AI Review

I said earlier that it’s dangerous to use AI tools to write documents that you will be sending to other people as part of your practice. You could probably fix the AI documents with a manual review, but that’s going to be time consuming, and you might get a quicker and/or better document by writing it yourself.

On the other hand, it might make sense to flip the script and ask the AI to review your work.

This is obviously safe to do, since you don’t have to include anything the AI produces. But it is useful? The theory is that the AI has been trained on documents similar to yours and has “learned” how they are normally constructed. So when it processes your document, it can suggest things it has seen elsewhere. It won’t help you break new ground, but it might see some things you missed.

The only way know if this is worth doing is to try it, but I’ve heard a number of AI skeptics say that this is one area where AI is surprisingly useful. Not revolutionary, but useful.

As before, you will have some prompting to do. More than likely, you will want to have a conversation with ChatGPT about the document. To illustrate what that might look like, I fed an earlier draft of this post through ChatGPT 4o, and started with this prompt:

Me: Please review the document below as if you were a computer-literate lawyer and let me know how it could be improved. The document is a blog post in response to skepticism in the legal community over the usefulness of AI. I’m trying to suggest a few areas where AI may be genuinely useful without over-hyping the use of AI in legal practice. Please don’t re-write the document, just identify any parts of it that are especially confusing and let me know. You can offer a proposed re-write of those parts. Here’s the document:

[Document omitted.]

ChatGPT proposed 8 changes. Some of them suggested using more professional phrasing — it didn’t like the “Hell No!” at the beginning, for example, suggesting instead “I understand that many of you may be skeptical about the use of AI in legal practice.” I ended up using four of the suggested changes — fixing two typos and rephrasing a couple of sentences to be more concise.

Since most of the suggestions had been about readability issues, I realized I needed to get the AI to focus more on accuracy.

Me: Are there any parts of the blog post that make major mistakes about AI or ChatGPT in particular?

ChatGPT said it was mostly accurate, but it nevertheless offered six suggestions, four of which recommended emphasizing the ways in which AI could screw things up. One of the suggestions was to mention fine tuning, which I’ve added as footnote, and the other was to emphasize that ChatGPT doesn’t actually search documents, which I put into a new paragraph in the search section.

It sounds like ChatGPT didn’t find any huge problems with what I wrote, but did I miss anything important?

Me: Are there any other issues I should raise?

ChatGPT suggested seven possible additions to the post, including more examples and a discussion of tools that use AI, which I considered outside the scope. Based on a couple of its suggestions, I added a note reminding lawyers that they will have to puzzle out the legal and ethical issues of involving an AI. I also added a note at the end about the importance of keeping up to date on the technology.

Finally, I decided to ask ChatGPT to suggest other ways AI could be helpful.

Me: Finally, do you have any more suggestions where AI could really help lawyers without contradicting the main themes of the document?

Here ChatGPT strayed into the hype zone, suggesting things like using AI for contract analysis, due diligence, and compliance monitoring, all of which sound fanciful to me. It also mentioned document management, which I already touched on, and predictive analytics, which might work but requires a whole different kind of AI. Probably the craziest thing it suggested was using AI for client intake and onboarding:

AI chatbots can handle initial client inquiries, gather relevant information, and schedule consultations, freeing up time for lawyers to focus on substantive legal work.

Dear God no. Don’t do that. This is the worst case of letting the AI speak for you. At least a judge will likely recognize AI-generated legal nonsense for what it is. A client might well take it seriously and act on it. Also, I’m already anticipating the appellate question of whether chatbot-client privilege is a real thing.

I tried refining the question:

Me: Most of those sound complicated or expensive. Can you suggest additional ways that a small firm could use existing AI tools without making a major project of it?

That just caused it to reel off a bunch of AI tools that might be helpful, and I don’t want to get into that. I could have kept going, refining the question to get some better answers, but I think this is enough to show how to do AI review.

In Conclusion

AI technology has been changing rapidly for a couple of years now, and more changes are on the way. The new large language models like the one in ChatGPT have been revolutionary, and I don’t know if we’ll see more revolutions any time soon, but I think there’s plenty of opportunity to refine the models we have, find new and interesting ways to use them, and integrate them more elegantly into our lives.

As ChatGPT pointed out earlier, if you want to use AI to improve your job or your life, you’ll need to pay attention to new developments in the field. Keep reading. Keep trying new things.

Meanwhile, I’ve suggested a few areas where AI might be helpful. ChatGPT is a pretty good search tool, a decent translator, and a an OK writing coach. And under the right combination of circumstances, you may also find a use for its ability to summarize documents. But whatever you do, don’t let it be the face of your legal practice — not to judges, not to other lawyers, and especially not to clients.

This post by Mark Draughn at Windypundit was originally published at How To Use AI In Your Legal Practice

In 2015, two undercover cops purchased $50 of crack cocaine from a Black man on a Jacksonville street. Instead of arresting him on the spot, one officer used an old phone to snap several photos of him. Trying to be discrete, the officer took the photos while holding the phone to his ear and pretending to be on a call. Needless to say, the resulting photos were not headshot quality.

Later, after failing to identify the man themselves, the officers emailed the photos to a crime analyst, who used a statewide face recognition system to see if one of the photos looked like any mugshots in the county’s database. The program spit out several possible matches, the first of which was Willie Lynch, who was soon arrested and charged with the drug sale.

The ACLU argues that this is a problem:

If the government uses an error-prone face recognition system to identify you as the perpetrator of a crime, you have a constitutional right to probe its accuracy before you are convicted based on its results. But amazingly, a Florida appeals court disagrees.

If a cop stops you and makes you breath into an Intoxilyzer 9000, the results issued by that machine can be used in court as evidence of your blood alcohol content. On the other hand, if the cop whips out a cheap personal-use portable breathalyzer and you blow into it, the results aren’t admissible in court because the device hasn’t been approved for evidential use. (This is a simplification, I’m not a lawyer, don’t blame me if you get convicted, etc.) However, the cop can use the results of that non-evidential test to decide if he wants to go through the trouble of getting you to take an official test.

I can’t quite tell from the descriptions of the Florida case whether the FACES facial recognition system was used more like the Intoxilyzer 9000 or the cheap portable breath tester. That is, were the results of the facial recognition program entered into evidence — “We know it was the defendant because the facial recognition software says so” — or did the prosecutor have the cops make the ID — “We recognize this guy as the individual we bought the drugs from” — with the facial recognition software being the tool they used to find his identity (name, address, etc.) so they could visit him and identify him as the drug dealer themselves?

If the former, if facial recognition was used as evidence, then I think it would be pretty clear that the technology can be challenged by the defense, as breathalyzer evidence often is. Given that the county’s use of facial recognition software came as a surprise to many criminal defense lawyers in the area, I suspect that it was standard practice for the prosecutor to not reveal that law enforcement agencies were regularly using facial recognition technology in investigations.

Even if the facial recognition results were not introduced as evidence, the ACLU argues they should have been made available to the defense as Brady material:

If any of this information had come from a human witness—or, in the case of the analyst’s suggestive submission to the investigators, a lineup—it would clearly be Brady material. For example, FACES identified Mr. Lynch and several other people with similar confidence as the perpetrator. Had an eyewitness done so, the state would be unquestionably obligated to disclose the identification of the alternate suspects.

[citations omitted]

That makes a lot of sense to me. There is evidence that a witness’s ability to accurately identify a suspect by looking a photo is impaired if the photo is presented improperly. Showing only one photo is highly suggestive, and the image in the photo is likely to supplant the witness’s actual memory. So the defense needs to know the details of how the defendant was identified if they are to put on an effective defense.

That said, as a software engineer, I’m uncomfortable with how far the ACLU wants to take this:

Prosecutorial misconduct and police adoption of face recognition technology are dangerous, and the ACLU has been pushing to halt both. Until that happens, prosecutors must give defendants full access to information about the algorithm used against them in places where face recognition technology has already been deployed. This includes the underlying model, training data, computer code, explanatory documentation, and any other results from which the final, reported result was chosen. Any validation studies should also be available as well as the opportunity to question the people who use and created the system.

Where I come from, turning over the source code to a software product is huge. The intellectual property value of even a moderately-sized software system could run into the millions of dollars. And once the source code gets into a courtroom, it’s not unheard of for it to be released to the public:

In July 2016, Judge Valerie Caproni of the Southern District of New York determined in U.S. v. Johnson that the source code of the Forensic Statistical Tool, a genotyping software, “is ‘relevant … [and] admissible’” at least during a Daubert hearing—a pretrial hearing where the admissibility of expert testimony is challenged. Caproni provided a protective order at that time.

This week, Caproni lifted that order after the investigative journalism organization ProPublica filed a motion arguing that there was a public interest in the code.

If anyone wants to know what that source code looks like, it’s available here. As I write this, people have made 49 additional public copies. It’s copyrighted, of course, but I have no idea what the limits are on information released through the courts like this.

In addition, I’m not real thrilled about the idea that defense lawyers could routinely subpoena me every time some police agency uses something I wrote.

That said, I can certainly see where defense lawyers are coming from. When you’re fighting a DUI charge where an Intoxilyzer 5000 was used, it makes sense to want to know how an Intoxilyzer 5000 works, and that includes information about the source code for its software. That same thinking applies if your client was fingered by a FACES hit. It just kind of makes sense that software created for use by law enforcement should be subject to discovery and examination as part of any criminal proceeding resulting from its use.

But what about general purpose software? What if the forensic analyst used Photoshop to clean up the phone image before sending it to the facial recognition system? If lawyers can get the software for the the facial recognition system, can they also force Adobe to turn over Photoshop source code that cost them hundreds of millions of dollars to develop? That seems insane.

And what happens next time? Is there some sort of precedent established? Or does the software owner have to keep giving it up in court? And what about maintenance? I could see a defense lawyer demanding to examine the FACES source code, only to have the prosecution argue that the court had found the FACES software acceptable in a previous case, to which the defense lawyer responds, “That was version 3.5.4, this case is about version 3.6.2.”

I sort of assume that the legal system has some of this figured out already, because we’ve been using software systems for a long time, and the issue doesn’t seem to come up often. When prosecutors want call detail records for a phone admitted into evidence, the defense doesn’t usually get to examine the phone company’s billing software that was used to produce the record. Or in the case discussed above, nobody seems to be asking the cellphone manufacturer for source code for the software running on the phone that created the image.

In 2012, a defendant in a cold case was prosecuted on a DNA hit that was characterized as “1.62 quintillion times more probable than a coincidental match to an unrelated black person.” The defense wanted to make the state prove that those insanely high odds were accurate, so they requested the source code to the DNA matching algorithm.

The trial court determined that Chubbs was entitled to examine the source code under protective order.

This decision was overturned on appeal in 2015. The appeals court said that Chubbs’ stated reasons to access the source code, even under protective order, did not outweigh trade secret protections. Further, as the court writes, “access to TrueAllele’s source code is not necessary to judge the software’s reliability,” because validation studies and expert testimony are sufficient to make that determination.

That sounds like a reasonable conclusion. I’m a software engineer, and if you asked me to evaluate the accuracy of a piece of scientific software, I would be far more interested in the testing methodology than the source code. After all, the reason the software industry does so much testing is because you can’t judge the quality of software by code inspection alone.

Still, it’s not as if DNA software is perfect. I seem to recall (I can’t find a link) that at least one DNA matching program was found to have inaccurately coded population statistics, causing it to miscalculate the odds of a random match. That is exactly the sort of thing the defense team would like to discover, because it’s also exactly the sort of thing that gets innocent people convicted.

This post by Mark Draughn at Windypundit was originally published at The FACES of Justice

Supreme Court Justices are some of the most influential people in the country, and a relatively young guy like Brett Kavanaugh will affect the course of things in this country for decades to do come. But despite thousands of news stories, I have very little idea what he’s likely to do if he gets on the Supreme Court.

From the little I can gather from sources I trust,

• He’s a vanilla standard conservative nominee, not some kind of far-right radical.
• He’s pretty good on free speech issues.
• He sucks when it comes to the rights of the accused.
• I like that he appears to want to narrow Chevron deference.

I’ll probably dislike a lot of his rulings, but no more than I would almost anybody else likely to be nominated.

But we’re not talking about any of that right now. Instead, there’s this enormous public debate over Kavanaugh’s alleged behavior toward women when he was in high school and early college. The accusations started with holding a girl down and grinding against her at a high school party, with a relatively strong witness for something that happened so long ago. The next accusation escalated to waving his dick around near some woman’s face, but even the woman involved admits her memory is sketchy.

Then publicity hound Michael Avenatti popped up with a client who claimed that Kavenaugh participated in multiple gang rapes, with guys at parties lined up outside rooms where they could rape drugged women. And now I’m hearing something about two guys assaulting a woman on a boat, and some guy has come forward to say that he, not Kavanaugh, attacked the first woman, and then another guy has come forward also claiming that he was the real attacker…and then there’s something about devil’s triangles and “boofing” that my long experience on the internet tells me I should *not* try to look up…

At this point I’ve kind of given up on following the whole mess. So many people on both sides have exhibited what Reason‘s Robby Soave’s called “shameful certainty“:

A lot of people nevertheless seem completely convinced, one way or the other. Quite coincidentally, their conviction that Kavanaugh has been slandered, or that Kavanaugh is a sexual predator, seems to line up perfectly with whether they oppose or support Kavanaugh’s nomination to the Supreme Court. If you like the guy, you know he’s innocent, or that it doesn’t matter. If you fear he will provide a decisive vote against abortion rights, you know he’s guilty. Fence sitters are betraying women everywhere, according to the left, or are letting the Democrats pull off a con, according to the right.

[…]

It’s frustrating that so many people are beholden to their partisan convictions and blithely insistent that they know whether Kavanaugh is innocent. That may be something not even Kavanaugh knows, since he may have been blackout drunk at the time of the alleged incident. It’s frustrating that so many progressives would believe the accusation automatically, no matter how distant or unverifiable it may be. And it’s frustrating that so many conservatives think protecting Kavanaugh and elevating him to the Supreme Court is so important that it’s worth forgiving serious wrongdoing in just this one case.

I’ve seen so many Tweets from the left arguing that Kavanaugh supporters want an anti-abortion rapist on the court because it’s a war on women, and so many from the right arguing that each new accusation shows how unscrupulous the left is in protecting their right to murder unborn babies. I’m sure there are people approaching this issue with an understanding of nuance, contingent reasoning, and a willingness to allow for evidence that does not support their political goals, but they are being drowned out by the noise.

The Republicans are pretty much still in control of this, and they still have the votes. So unless something comes out about Kavanaugh that is (1) clearly true, (2) bad, and (3) new, the chances of him ending up on the Supreme Court are almost as good as the chance that Black Panther will be feeling a lot better by the end of the next Avengers movie. But in either case, we’re going to have to sit through a big loud fight.

This post by Mark Draughn at Windypundit was originally published at A Few Thoughts On the Kavanaugh Confirmation Process

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.

This post by Mark Draughn at Windypundit was originally published at The Revealed Meaning of Guilt

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.

This post by Mark Draughn at Windypundit was originally published at Just Consequences

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.

This post by Mark Draughn at Windypundit was originally published at Free the Squawk!

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.

This post by Mark Draughn at Windypundit was originally published at A Verdict of Innocence?

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.

This post by Mark Draughn at Windypundit was originally published at A Brief Response to Cy Vance About Apple and the FBI

This time it started with Ken Womble’s post at Fault Lines about risks faced by criminal defendants who are stuck in jail awaiting trial when they call their friends and family. Jail phones are tapped, and everything the inmates say on them is recorded. There’s an exception for legally privileged conversations between defendants and their lawyers (mostly), but other than that, anything inmates say to their friends and families is fair game for the prosecution. Womble gives a few examples of the kind of trouble that can lead to:

Yes, sometimes, the jailed party unburdens himself and confesses to his mom or brother.  But then there are the conversations about the case that a prosecutor, hearing things only through his finely tuned ears of justice, will try to convince a judge are relevant admissions of something bad.  […]

Beyond the realm of possible confessions, though, there can be hours of conversations that can let the prosecutor know who the defendant’s closest friends and family are. She can find out immense amounts of background information that might come in handy on cross examination.  This system of surveillance allows the government to detain someone and then sit back and simply gather information on them.  All because the defendant could not afford bail.

These calls also allow the prosecution to hear the defendant relay to his friends and family all the great tactics and evidence that his attorney has explained will help out his case.

Except for some details, most of this was not news to me. I’ve heard lawyers’ stories of charges filed and cases lost because inmates said something incriminating over the jail phones. Every criminal lawyer will tell their clients not to talk to cops, but inmates desperate for contact with the outside can easily forget that talking on the jail phone is talking to the cops.

What got my attention was Womble’s introduction of this issue in an earlier paragraph:

Maybe in reality they did commit a crime, but as far as the government and our law is concerned, they are as innocent as you or I. So if we actually give a damn about the presumption of innocence, why do we allow something done to unconvicted inmates that we would never tolerate for ourselves? We rarely think about some of the more mundane casualties of freedom that so many jail inmates must face.

I couldn’t get that idea out of my head, so I was still thinking of it when I got to this:

Do you know who does not have to worry about having their phone calls recorded as they await trial? People who can afford bail. How can we allow the government to record the phone calls of legally innocent people based solely upon their financial circumstances (or lack thereof)?

If you’re in jail because you can’t make bail, the government can listen in on every one of your phone calls. But if you’re out on bail, law enforcement authorities need to get a warrant to listen to your phone calls, just like they do with anyone else. What’s the legal justification for that distinction?

My guess is that authorities are allowed to listen in on inmate phone calls because inmates have essentially no right to privacy. Guards can search their cells and their bodies any time the want, so why not their phone calls too? But that just begs the question: What’s the legal justification for giving pretrial detainees so little privacy?

In other areas of law, infringements of rights must be limited to what is necessary to serve a constitutionally permissible purpose. E.g. when the government limits freedom of speech to prevent fraud, that limitation is supposed to be narrowly tailored to only limit rights as necessary to prevent fraud.

So if we accept that the government has a legitimate interest in making sure that defendants show up for their trials, then detaining them in jail may reasonably serve that purpose, and it makes sense to impose restrictions on detainees to prevent them from escaping. However, skimming over the New York City Department of Corrections inmate rule book and visitor’s rules, I was able to hastily put together a short list of restrictions that seem unrelated to that purpose:

• Inmates can only receive gifts from visitors if the gifts are on a list of 24 categories of items that may be brought in.
• Inmates are not allowed to have personal shoes. They have to wear jail-provided footware, and that doesn’t include shower shoes like thongs.
• There are limits to the jewelry they can wear — small wedding rings and religious items.
• They can’t have clothing that is red, yellow, or light blue, nor can they have camouflage patterns or spandex leggings.
• They can’t have tobacco products or alcohol.
• Inmates cannot receive toiletry or food items.
• They’re not allowed to have telecommunications equipment such as a phone, text messaging device, camera, or tape recorder.
• Inmates can’t have photographs that include pictures of themselves, and Polaroid photographs are prohibited.
• They aren’t allowed to have money, checks, or credit cards.
• They aren’t allowed to have unauthorized art supplies or writing instruments.
• No sex, even if it’s consensual.
• No buying or selling of goods or services.
• Inmates are subject to drug and alcohol testing.
• Visiting hours are limited and visits are controlled.

It’s possible I’m misunderstanding some of the rules — I read through them pretty quickly and I don’t know much about life in jail — but it’s hard to see how these rules are related to preventing escapes. Perhaps I’m missing a few things — maybe large jewelry could be used as a weapon to threaten a guard, and then once the inmate makes it to the treeline the camouflage would help him hide. Nevertheless, most of these restrictions seem to have little bearing on the goal of ensuring that inmates stand trial.

I understand that there may be good reasons for some of these rules — preventing inmate-on-inmate violence, preserving a sense of order, and making the guards’ jobs easier — but those don’t sound like good reasons to deny legally innocent people their rights, especially since we have rejected those same restrictions for all the innocent people living outside the jail walls.

(I’m pretty sure there are some unsavory motives at work as well: Forcing inmates to buy consumer goods from the jail commissary, forcing them to use over-priced jail phone services, and encouraging them to take a plea deal to get out of jail.)

I realize this is old news to people who know the criminal justice system better than I do. I wonder, however, why this isn’t a more contentious issue? Perhaps I’m just not reading the right news sources. Changes to jail rules might affect thousands of inmates and their families, but they rarely make the news. Or maybe this is settled law, and there’s not much to be gained by litigating.

I’m not sure what reform in this area would look like, but it’s not hard to envision a jail system that prevents inmates from escaping without imposing so many unrelated restrictions. I imagine something resembling a high-security secured college dorm or SRO residence, with private rooms, personal property, phones and internet, pets, and unlimited visitation from family, including overnight stays.

I realize that this vision of comfortable confinement may not be achievable, but that usually isn’t enough to stop reform movements. I’m surprised I haven’t stumbled them somewhere. And nobody said respecting people’s rights was easy.

This post by Mark Draughn at Windypundit was originally published at Pretrial Detention and Why It’s Like That

In response to my hypothetical stranger-hands-me-a-duffle-bag scenario, Matt has some legal advice:

From a strictly legal standpoint, you need to drop all that stuff immediately. Possession of illegal stuff typically has to be “knowing” to stick in court. Holding that bag in those circumstances for a short time not knowing what’s in it is one thing- you’re not knowingly possessing something you shouldn’t. Once you see child porn, something you believe are drugs, and an illegal firearm the “knowing” element is shot.

You can cure that, though, by not possessing it.  Legally speaking, you don’t take it anywhere to get rid of it and you don’t call somebody while you’re holding it. You cease possessing it immediately.  Then you get the hell away from there…

And then Matt suggests that his legal advice is not the smartest advice:

You’re out on the street with a duffle bag filled with guns, coke and child porn. Depending what the surfaces on the bag or the items in the bag, your fingerprints might be on there. There are cops running at you who haven’t seen you yet, but just might if you do something out of the ordinary (like drop a duffel bag and run across the street).

Assuming that’s how it does go down, dropping a bag full of contraband in front of the cops and possibly having your fingerprints on the contraband inside is what prosecutors call a very strong circumstantial case.

Matt goes on to explain what he thinks is probably the smartest thing to do, but I’m not going to repeat it here. You’ll have to read his post to see.

Matt also addresses my not-so-hypothetical scenario of emergency Doctor Sandeep Jauhar who was handed an envelope of (presumably) cocaine by a client. He promptly threw it away, an act which has attracted criticism from Northwestern Pritzker School of Law Professor Steven Lubet. I in turn had criticized Lubet for accusing Dr. Jauhar of obstructing justice without explaining what exactly the doctor should have done. I felt that Dr. Jauhar did the best he could.

Matt, on the other hand, does better than both me and the law professor:

Patients every day enter a hospital in an emergency fashion with jewellery, a purse or wallet, or important documents. The hospital collects that stuff, and puts it into a safe or some sort of storage.  Juahar could have placed the item in a bag, stapled it shut and put it with the rest of the patient’s belongings- whether in a safe or not.

In that situation there’s no hiding and there’s certainly no destruction.  He’s not possessing it, either. He’s also not betrayed any patient confidences. He’s doing what is always done. If the police ask the Doctor about it, he can tell them what he did with it and where it went.

Note that Matt’s solution addresses the criminal law issue without abandoning doctor-patient confidentiality, which is the difference between asking a law professor (or a blogger) and asking a practicing lawyer.

(I say nice things about Matt Haiduk because his blog is a great read, but also because he’s the only real Illinois law blogger I know of, which makes him my first call if I ever get arrested.)

This post by Mark Draughn at Windypundit was originally published at Haiduk Steps Up On Possession

Jennifer Connell claims the boy, Sean Tarala of Westport, acted unreasonable when he leaped into her arms, causing her to fall on the ground and break her wrist four years ago. This week Connell is asking a six-member Superior Court jury to find the boy liable for his actions.

She is seeking $127,000 from the boy, who she described as always being “very loving, sensitive,” toward her. The boy is the only defendant in the case.

It sounds kind of awful, suing a child for essentially hugging her too exuberantly, but this is actually a pretty routine legal matter.

The key to understanding what’s going on, and why Jennifer Connell is not actually the monster some people are making her out to be, is that while she is technically suing her nephew, the real target is the insurance company that holds the homeowner’s policy. The kid is just the defendant for legal purposes, since he’s the immediate cause of her injury, but he was almost certainly represented by an insurance company lawyer since they would be the ones paying. People do this all the time. It’s how you make insurance companies pay claims.

Much has been made over a few of the details:

In court Friday, the boy, now 12 years old, appeared confused as he sat with his father, Michael Tarala, in the Main Street courtroom.

The implication is that he was confused over why the aunt he loved was suing him, but I think it’s safe to say that any 12-year old would be confused by the formality of a courtroom. Heck, I find it all confusing whenever I’m at the courthouse.

The boy’s mother, Lisa Tarala, died last year.

That’s hard on the poor kid, but that’s not a reason to let the insurance company off the hook.

Jack Marshall, who should know better, has been particularly scathing about some parts of this:

The horrific actions of the 8-year-old has turned her life into a living hell, she told the jury. “I was at a party recently, and it was difficult to hold my hors d’oeuvre plate,” she said. Believe me, I know what a social handicap that can be.

Yeah, when you see “hors d’oeuvre” written out, it’s easy to make fun of, but here’s the thing: I can hold an hors d’oeuvre plate. Holding a plate with small bits of food isn’t a difficult feat of strength. But the point of her testimony is that she still can’t hold a plate steady even though the injury has had four years to heal. This isn’t just a temporary problem. It’s a permanent debilitating injury.

The extent of the injury is further indicated by another point that people are making fun of:

She changed her mind, she says, because her life was “turned upside down as a result of the injury.” “I live in Manhattan in a third-floor walk-up so it has been very difficult,” she said. “And we all know how crowded it is in Manhattan.”

It certainly is hard to walk up three flights of stairs on one’s hands.

As a 51-year-old guy with bad knees, I say fuck that ableist bullshit. Did you ever notice there are railings in most stairwells? Did you ever wonder why they’re there? It’s because some of us need to hold on with our hands to steady ourselves on the stairs, especially when carrying something that throws us off balance. That’s got to be a lot harder when your wrist is weakened by injury.

As it happens, the jury decided against her because of the way the jury was told to evaluate the kid’s behavior:

Quinnipiac University law professor William Dunlap said in civil cases like this one involving children, the jury is instructed to view the child as a child, and not by a “reasonable person” standard.

“When you’re talking about young children, you’re talking about a subjective standard – not an objective standard,” he said. “The child is not required to conform his behavior to the way a reasonable adult is expected to behave.”

If the defendant had been 18 at the time of the incident, he would have been expected to act like a “reasonable adult.”

“The jury is supposed to judge the child’s behavior by how a child of similar age, intelligence and experience is expected to behave,” he said.

So she took her chances when she visited an 8-year old. Fair enough. And New York personal injury lawyer Eric Turkewitz says he would not have taken the case:

Would I have taken such a case? No. Because the jury did what I expect a jury would do. But eviscerate her on the Internet for it? No. She took the advice of counsel. Bad judgment call perhaps, though the attorney defends the decision to move forward.

In other words, she went to a kid’s birthday party, got injured by accident, and then a lawyer advised her that she might be able to recover some of her medical costs (and probably lost wages) from the homeowner’s policy. So why not try it? I mean, other than because the internet outrage machine might decide to pick on you…

Someone at CNN interviewed her:

“This was meant to be a simple homeowners insurance case,” she said. “Connecticut law is such that I was advised by counsel that this is the way a suit is meant to be worded.”

Connell said that an individual, not an insurance company, had to be named as a defendant.

“I adore this child. I would never want to hurt him. He would never want to hurt me,” she told CNN.

The boy refers to Connell as his aunt, although she said he is the son of her cousin. The family remains close. Just a few weeks ago, Connell said, she took the boy out shopping for his Halloween costume.

“It’s amazing the power that the Internet has that something can go viral, completely out of context,” she said. “I’m certainly not trying to retire to some villa in the south of France. I’m simply trying to pay off my medical bills.”

And her lawyer thought this might work. Maybe he was just hoping to pressure the insurance company into kicking in a little more than the single dollar they had offered. Since she lost, maybe this wasn’t the best legal decision. Or maybe it was worth a try. If you suffered a debilitating injury in my house, I sure wouldn’t hold it against you if you tried to get some money out of my insurance company. That’s one of the reasons I have the policy.

This post by Mark Draughn at Windypundit was originally published at Jennifer Connell Is Not Really a Monster For Suing Her 8-Year Old Nephew

Surprisingly, despite the complexity of the subject and the amount of detail, it’s actually pretty readable. Dwyer takes the time to explain a lot of what the reader needs to know to understand what’s going on. And if you’re interested in this kind of thing, it’s fascinating. I think I understand it, so let me see if I can explain some of the science…

The basic issue is whether the court should allow the prosecution to present a certain type of DNA evidence from the New York City Office of the Chief Medical Examiner. DNA evidence itself is generally considered very reliable, but in this case the evidence was based on a very small sample of genetic material discovered at the crime scene and processed using a technique called high sensitivity analysis. The judge had to decide if this specialized technique was good enough to allow it to be admitted as evidence.

To understand the basic problem, imagine that you get a voicemail message in which the caller is speaking so quietly you can’t understand what he’s saying. So you try turning up the volume. This makes the caller’s voice louder, but it also amplifies the crackle and pop of the phone line and the background noises behind the caller. The amplifier circuit even introduces some noise of its own. So even though the caller’s voice is louder, you still might not be able to make out what he’s saying.

Photographers working in low light see a similar phenomenon when they try to crank up their camera’s ISO sensitivity. It makes the picture brighter, but it also adds a lot of speckled noise to the image. This happens to the image for roughly the same reason turning up the volume doesn’t make the voice easier to understand: In trying to amplify the signal, you’ve also amplified the noise — and introduced some as well.

The same thing happens with high sensitivity DNA analysis. One of the steps involves using a process called PCR to vastly multiply the number of copies of the DNA markers in the sample, because the process for measuring the markers requires a lot of material to work with. This process is called “amplification,” and just as with the audio and photographic examples, it will amplify the noise and introduce some of its own.

When the starting DNA sample is fairly large, it’s like a voicemail caller who speaks loudly or a photograph taken in bright sunlight: The signal stands out clearly from the noise in the system. When the sample is small — so-called “touch DNA” or a very degraded sample — the noise can overwhelm the signal.

The ME’s office came up with an interesting way to deal with the noise problem: Basically, they fed samples of known DNA through the high-amplification process and measured the statistical likelihood of the different types of noise. This allowed them to develop mathematical models of the effects of the various types of noise.

That wasn’t enough to filter out the noise completely, but it did allow them to make probabilistic determinations about the original DNA sample. Given a particular amplification result, they could now estimate the probability of getting that result from a particular suspect’s DNA fed through the noisy amplification process. They could also produce an estimate of the probability of getting that result from a random member of the population for comparison. Finally, they could even do this for mixtures of DNA from several people. The end result is that they could say things like, “It is 100,000 times more likely that this is a mixture of the defendant’s DNA and that of two other random people than that it is a mixture of the DNA of three random people.”

That’s not the sort of trillions-to-one odds you get with pristine DNA samples, but it is pretty good. If the science is for real. Which was kind of the question in front of Judge Dwyer.

In New York, the standard for admissibility of scientific evidence is Frye, which basically boils down to saying that the methodology behind the evidence must be widely acceptable to the relevant scientific community.

The high sensitivity analysis technique in question had recently been invented by the New York ME’s office and was not used much elsewhere, so Judge Dwyer could not conclude that it was widely accepted on that basis. His analysis didn’t end there, however, because the technique might still be considered widely accepted if it consisted only of components that were widely accepted. That is, doing several widely accepted things together is probably still widely accepted.

Judge Dwyer found that many parts of the high sensitivity analysis technique were indeed widely accepted — polymerase chain reaction amplification, electrophoresis, Bayesian statistics — but not all of them. Therefore he found that high sensitivity analysis was not widely accepted.

The problem that struck me as most significant was the experiments conducted by the New York ME’s office to determine how high-amplification noise affected the known DNA samples. This was a unique experiment, and as such it was a great piece of science, but until other labs have reproduced the results, it can’t really be considered widely accepted. Furthermore, the custom software that does the statistical analysis has not been made available for review, so it’s not clear how other labs could ever reach a conclusion about its acceptability.

Judge Dwyer’s opinion goes into a great deal more detail about the potential causes for concern and why he’s ruled that the technique is not widely accepted. It’s clear he’s given this a lot of careful thought, and as an observer of our justice system, it’s great to see judges take such care to get the science right. It makes me feel good about the system.

Trust Jeff to ruin that:

…he did something that almost never happened with expert evidence: he did it properly. That’s worthy of some note. Frye is readily abused.

And Scott:

To the uninitiated, what happened in Collins may seem, well, normal, expected even, since it’s perfectly reasonable to expect judges to do their job.  But what Justice Dwyer did was remarkably bold, maybe even exceptional.  He said “no” to a new wrinkle in DNA analysis, and he did so after other judges said, “sure, why not?”

With pathetic regularity, the by-product of bad forensic science is revealed when defendants convicted with the utmost certainty are later exonerated.

Oh well. At least it felt good while I was reading it.

This post by Mark Draughn at Windypundit was originally published at An Attempt to Explain High Sensitivity Analysis in Collins

Scott’s position, if I understand it correctly, is that the warrant limits the scope of the seizure to the data specified in the warrant, and if the government can’t figure out how to limit their seizure to that data alone, then they just don’t get to seize anything. Too bad, so sad.

In my heart, I like Scott’s argument. He’s argued in that past that it’s a bad idea to make rules for the digital world by using analogies with the way we did things in the pre-digital world. That makes a lot of sense to me. We now store far more data in digital form than in the forms of data storage available when the Fourth Amendment was passed — my guess is we have more on our hard drives now than has ever been written down in all of human history — and if we were to make up rules from scratch to keep people secure in their persons, houses, papers, effects, and digitally stored data, against unreasonable searches and seizures, they would be considerably different from the rules we’ve evolved by analogy.

We’ve been witness to a similar situation when applying copyright law to digital data. Historically, copying and distributing creative works has been hard, so it made sense to have rules that govern copying and publication. And in the early years of the digital media revolution, copyright owners and publishers tried to build a virtual digital implementation of the system of rules we had been using for printed and recorded works. But as soon as consumers discovered they could copy digital works quickly, cheaply, and perfectly, they started to abandon the old copying and publication rules as too cumbersome, and we now seem to be evolving toward a system based around convenient access to source materials: If I hear a song on the radio and I want a copy, it’s much easier for me to download it from iTunes for $1.29 than it is to find someone willing to let me copy it for free. (Eventually, we will probably have laws that allow us to do this without 57-page click-to-accept legal agreements.)

Congress and the courts have been damned slow to adapt the search and seizure rules to the digital world in a reasonable way. Between things like the current rules for seizing computers and the third-party doctrine, the government has far too much easy access to our digital data, but I like to think that will eventually change as more people who grew up living in the digital world become judges and members of Congress. Someday they’ll get it, and we’ll get robust protection of digital data. Until then, Orin’s plan is about as good as it’s likely to get.

Still, I have at least three suggestions for improving Orin’s plan:

First and foremost (and least implausible),  the government should not be allowed to seize computers for longer than it takes to copy the data and return the computers to the owners. A business without its data is a business that cannot operate, and a warrant to seize data becomes an order to shut a business down. (Even having a personal computer seized is damned inconvenient and expensive.) This is a longstanding problem with seizing evidence, but given that digital copies are quick, cheap, and perfect, it’s an area where seizures in the digital world can and should be less troublesome than in the physical world.

Second, it would be nice for a change if the restrictions on the government came with real teeth. I’m not sure how that could work, however, since the initial seizure would still be legal. But without any punishment for breaking the rules, the government will still try to use everything it has, and the worst that could happen is that a judge will say no. And really, if the government discovers something juicy in the non-responsive seized data that they’re not allowed to use, is it realistic to assume they will simply ignore it? Without serious penalties, what’s to stop them from trying a little “parallel construction” to conceal the fact that they’re using the restricted data?

A similar problem arises in civil lawsuits when one party wants to examine business records from another party, such as all emails relevant to the disputed matter. The party responding to the discovery request doesn’t want to turn over all its email messages, full of sensitive business secrets, to the opposition, but the party requesting the email messages doesn’t trust the provider not to leave out messages that would hurt it in the lawsuit. One common solution to this problem is to have the responding party turn over all email messages to a neutral third party which is responsible for picking out the relevant messages and turning them over to the party requesting them.

So my third suggestion is that perhaps digital data seizures in criminal matters could be filtered through a neutral third party as well. I believe there’s some precedent for this in the way client files are protected when a lawyer is being investigated for a crime: The court appoints a special master to review the files for privileged material. Perhaps that protection could be extended more broadly to include filtering terabytes of non-responsive data down to just the material specified in the warrant. It would be a time-consuming and expensive process, but maybe that would discourage fishing expeditions, especially the fishing expeditions that turn into massive data dredging operations.

This post by Mark Draughn at Windypundit was originally published at Better Data Seizure in the Digital World

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.

This post by Mark Draughn at Windypundit was originally published at A Rule Made To Be Broken

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.

This post by Mark Draughn at Windypundit was originally published at Return to the Planet of Reasonable Doubt

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.

This post by Mark Draughn at Windypundit was originally published at Reviewing the Charges Against the Bronx Defenders

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.)

This post by Mark Draughn at Windypundit was originally published at Why Are Grand Juries So Secret?

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)

This post by Mark Draughn at Windypundit was originally published at Je Suis Bronx Defenders

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 iwindui.com 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?

This post by Mark Draughn at Windypundit was originally published at DUI Lawyers and Faith In Websites

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.

This post by Mark Draughn at Windypundit was originally published at Bargaining Power 101

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 1000^TM 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.

This post by Mark Draughn at Windypundit was originally published at Is The Legal Field Ready for CSO?

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’s “passive 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 by Mark Draughn at Windypundit was originally published at Keep Talkin’ Judge

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:

http://youtu.be/5KfACTAOPa0

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:

This post by Mark Draughn at Windypundit was originally published at A Few Ways to Look At Criminal Lawyers

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…

This post by Mark Draughn at Windypundit was originally published at Paying For Prosecutions in Virginia?

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!

This post by Mark Draughn at Windypundit was originally published at A Modest Solution for Handling Multi-Format Legal Briefs

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.

This post by Mark Draughn at Windypundit was originally published at A Challenge for Prosecutors

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.

This post by Mark Draughn at Windypundit was originally published at We Talk to Cops All the Time…

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.

This post by Mark Draughn at Windypundit was originally published at Maverick Ray At Large

The law is hard to understand, hard to navigate and very hard to practice. If you are not a lawyer, you have no business giving legal advice because you don’t know what you’re talking about and someone, somewhere, will be stupid enough to listen to you and be harmed. Don’t do it.

This is something I worry about on Windypundit. I’m not a lawyer, but I write about a lot of subjects that involve legal issues. Almost everything I write about civil liberties involves criminal law in some way. And I occasionally write about issues that touch on immigration law, copyright law, patent law, labor law, and probably a few others. I think I probably know more about some of these areas of law — including criminal law — than the average non-lawyer. But that’s not saying much, so I know I have to be careful not to let a little knowledge become a dangerous thing.

I try to avoid that by limiting my writing to commentary, opinion, criticism, and analysis. I write about what people are doing in the name of the law, and the effects that they have, and whether that is good or bad. (Although if I’m provoked to write about it, it’s probably bad.) However, if I’m talking about something like in rem asset forfeiture, eminent domain abuse, immigration law, or federal cash “structuring” laws, it’s hard to explain the absurdity without going into some detail. But I try to avoid anything that sounds like legal advice, especially in criminal law, and especially in specific situations.

Still, sometimes I find myself tiptoeing really close to the line, or maybe going over it. I think this post on model releases is about as close as I’ve come to giving legal advice. I had just read a couple of books on law for photographers when somebody emailed me a question about it, and I tried to stay on the right side of the line between explaining why people use model releases and advising someone how to handle a legal situation. The only specific piece of advice I gave was that if the photo buyer didn’t like the model release, the photographer could always try asking the model to sign a different one.

That post is also an example of one good thing I have going for me here at Windypundit: Real lawyers read my blog. (In this case, San Diego lawyer Charles Hartley read my post and basically said I didn’t say anything too stupid.) I’m reasonably hopeful that if I ever screw up and give out stupid legal advice, one of my regular lawyer readers will let me know.

Sometimes, I do repeat some very general advice that I have heard from lawyers or read in legal blogs. In particular, on several occasions I’ve repeated Mark Bennett’s million-dollar legal advice: Don’t talk to the police. However, Scott Greenfield isn’t real thrilled about that advice:

Law isn’t easy. It’s confusing, contradictory, spirals out of control and back into focus without warning.  There are a million rules, precepts of interpretation, many of which are distinguished by such fine nuances that there is rampant disagreement within our own ranks.

But non-lawyers demand it be reduced to the lowest common denominator, made simple so they can “get it” in under ten seconds and without being forced to suffer the pain of thinking.  The best example I can come up with is “STFU,” the standard advice on what to do if questioned by police.

It’s Menckian, clear, simple and wrong. There are far worse answers, and it’s not quite a bad answer, but it’s also not the correct answer. And yet it’s been repeated a million times, driven so deep into the consciousness of so many that efforts to provide the correct answer are ignored.

Bennett may not be happy about his own advice either, since he seems to have taken down his original page — although other people have reposted it — and replaced it with more detailed advice.

I mostly write about the law because Windypundit is (among other things) a blog about public policy: What it is, what’s wrong with it, and what we should do about it. The legal system is huge and important and monumentally dangerous, and I think it merits a lot of discussion. So that’s why I write about it, and why I try not to write anything too wrong or stupid.

More than that, however, I think that ordinary people have to talk about the law because we have to live the law. At work, at home, in school, while driving…we are subject to the law all the time, every day, and we have to make decisions about our behavior based on the law. We may not be able to understand the law in full without a legal education and 20 years of experience, but that doesn’t relieve us of the burden of making decisions about things that have legal implications. And because of the way that human brains are wired, that means we have to talk things over with other people.

Ideally, I suppose, those people should be lawyers who are experts at the matter in question, but in practice, expert legal advice is a scarce resource, so we often end up talking to people who aren’t lawyers but who we expect to be better informed than we are.

In areas of law less hazardous than criminal law, this is uncontroversial. If you’re a reporter, you don’t run every story past a defamation lawyer, but you do run them past your editor. If you’re working for a company that provides telephone tech support under a contract, and a customer calls asking for something that you think might be out of scope, you don’t call the company legal department for an interpretation of the contract, you ask your boss. Or if you’re the boss and want to fire someone, you don’t ask an employment lawyer how to do it, you ask someone in Human Resources. Of course, sometimes things go wrong — and I’m sure lawyers in all these areas can tell horror stories — but for the most part, it works well enough.

I don’t know that informal sources of information about criminal law are any worse than informal sources of information about other other kinds of law, but the penalty for mistakes is certainly much higher. And in reference to online videos such as Law Professor James Duane’s famous “don’t talk to police” lecture, Scott is skeptical of the quality:

There are a number of videos around about dealing with the police, and they tend to be far better than most of the non-lawyer advice. Yet, they are still overly-simplistic, occasionally wrong and even slightly dangerous. That’s the best one can do in a mass market video. Whether that’s good enough is another story.

We better hope it’s good enough. Because next time any of us is pulled over, and the cop asks “where are you coming from?” or “do you have any drugs in the car?” or “mind if I take a look?” the only legal advice we’ll have immediately available is what we can remember, and it doesn’t matter how correct, complex, and nuanced a piece of legal advice is if it’s not there in our head when we need it.

I don’t have any answers, and I’m not real sure where I’m going with this, but…maybe when it comes to general legal advice in preparation for hypothetical future situations…maybe getting everything exactly right isn’t as important as making sure that as many people as possible understand a few really important parts.

This post by Mark Draughn at Windypundit was originally published at Non-Lawyers Talking About the Law