Racism Detected In Ferguson

New York Times reporter Matt Apuzzo says that the Justice Department’s investigation into the Ferguson, Missouri police has found extensive racial problems:

Police officers in Ferguson, Mo., have routinely violated the constitutional rights of the city’s black residents, the Justice Department has concluded in a scathing report that accuses the officers of using excessive force and making unjustified traffic stops for years.

The Justice Department […] says the discrimination was fueled in part by racial stereotypes held by city officials. Investigators say the officials made racist jokes about blacks on their city email accounts.

This is the official answer to the question of why the protestors in Ferguson were so quick to assume that Darren Wilson was a racist murderer. The department’s racial problems would have been obvious to black people in Ferguson. They would have seen it in the way they were treated, the things that were said at the side of the road when the police stopped them, the way cops treated black people on the street. It would have been a regular topic of discussion in the black community.

So when the story of the Mike Brown shooting broke in Ferguson, this is how it looked: A member of a police department with a history of racism, equipped with a sidearm, possibly body armor, and several non-lethal weapons, confronts an unarmed and comparatively vulnerable black man on the street, and despite having a car which can be used for either cover or escape, he gets out and chases the black man down the street and shoots him multiple times, killing him. You can’t blame anybody for at least suspecting that this was a racially motivated killing.

As it happens, after a thorough investigation, which probably wouldn’t have happened without the protests, it turns out there’s some convincing evidence that Mike Brown attacked Officer Wilson. It appears to have been a reasonably justifiable shooting. But in the early days it only made sense to assume the worst — that the shooting was part of the long racist pattern of policing in Ferguson.

The Tyranny of the Well-Meaning

Jack Marshall has proclaimed yesterday “Remember What Drugs Cost Society Day” in honor of actor and comedian John Belushi, who died of a drug overdose in 1982. It’s worthwhile to remember the dead, and it’s important not to forget that recreational drug use can lead to tragedies. Had Jack left it at that, I wouldn’t have any objection, but Jack can’t leave it at that.

The District of Columbia is poised to completely legalize pot, which will be the most ringing of government endorsements of societally destructive personal conduct, in a malfunctioning culture that should not be placed at further risk.

I find it amazing that Jack thinks that by making something no longer a crime, the government is giving it a ringing endorsement, as if there is no middle ground for conduct that is undesirable but nevertheless tolerated in a free society. One of the most vivid descriptions of the banal evil of totalitarianism is that “everything that is not forbidden is compulsory.” Endorsement is not truly compulsion, but in conflating legalization with endorsement, Jack is nevertheless seeing the world in an oddly totalitarian frame.

One of the errors in Jack’s reasoning is to think that the path from ethics to policy is as simple as “behavior X is bad, therefore we should make behavior X a crime,” without giving due consideration to the costs of doing so. Those costs can be especially high when it’s not just behavior X that is criminalized, but a superset of behavior X and a bunch of other behaviors Y and Z that are thought to be somehow related to behavior X.

John Belushi died of an overdose of heroin and cocaine, but the anti-drug laws don’t just prohibit giving someone an overdose of those drugs. They make it a crime even to use these drugs even in safe quantities. In fact, the mere sale and possession of these drugs is prohibited. And Jack is arguing that Belushi’s heroin and cocaine use is somehow relevant to marijuana law, even though marijuana is a completely different kind of drug. We’ve even gone so far as to criminalize certain cash transactions because they might be used to hide money that might have come from selling illegal drugs. And we allow police to violently invade people’s homes when they are suspected of possessing both drugs and toilets down which to flush those drugs. The people on this page are dead because we’ve followed a policy of outlawing drugs without considering all the consequences.

It also makes me furious that a talent like [John Belushi] gave himself so little time to entertain us, because he killed himself with an insatiable appetite for illegal drugs.

While it’s tragic that John Belushi died, it seems odd to lament the loss of being entertained by him in a post advocating continued drug criminalization. John Belushi wouldn’t have had much time to entertain us if he’d been in prison on drug charges. And let’s be honest, most of the rest of the writers and cast of Saturday Night Live would have been right there with him in the cell block. I’m guessing getting raped in the showers would have killed their sense of humor.

(Yes, if drug cops had thrown John Belushi in prison, he might have lived. But John Belushi is an exception. Most drug users don’t die from it. Most don’t become addicted. How many of them are you willing to imprison against their will to stop a guy like John Belushi from killing himself? I’d have trouble justifying any answer other than zero.)

Jack seems to argue that Belushi owed us some sort of duty of entertainment, and that to ensure that people like him continue to entertain us, we need to be able to lock them in a cage for using drugs. This is kind of a creepy claim on some other person. I’d be willing to dismiss it as just my imagination, except that he also takes a similarly paternal interest in black people:

This overwhelmingly black, poor, educationally-challenged and struggling population needs competent, trustworthy leadership and an injection of values. It is a community, after all, that idolized the late Marion Barry, a mayor who smoked crack on the job, and never apologized for it. It’s not surprising that the adults in the District would tell the young African-Americans that it’s cool to spend their your money to get stupid, to avoid clear thought rather than practice it.

Whereas Jack would rather put the District of Columbia’s young African-Americans in prison, because there’s no way that a five-year stretch in a cage will teach them bad values, impair the quality of their education, or break up families, right?

This isn’t just paternalism, this is the perpetual false argument that we need to punish people “for their own good,” that we ought to punish people for doing things we consider unwise, that some people just can’t handle freedom. It’s no wonder that Jack has trouble understanding why some black people see similarities between the modern incarceration state and slavery. Southern slave owners would have said that Africans are too simple and child-like, that they needed the slave owners to take care of them and see to it that they were good Christians. Drug warriors say that we have to imprison black people so they won’t do drugs. Every oppressive system has an excuse for why some people have to suffer.

“Of all tyrannies, a tyranny sincerely exercised for the good
of its victim may be the most oppressive. It may be better to live
under robber barons than under omnipotent moral busybodies.
The robber baron’s cruelty may sometimes sleep, his cupidity may
at some point be satiated, but those who torment us for our own good
will torment us without end for they do so with the approval
of their own conscience.”

— C. S. Lewis, “God in the Dock” (1948)

For the record, I think C.S. Lewis is wrong about the robber barons. They’re worse, because they don’t have consciences to trouble them, and cannot be encouraged by reason to change their minds, because that would be to oppose their own interests.

But that doesn’t let the moral busybodies off the hook, because it turns out you don’t have to hate people to cause them a lot of harm. The well-meaning can do quite a lot of damage with the best of intentions.

It’s Probably More of a Dingy Gray…

When I read Spencer Ackerman’s story in the Guardian about a Chicago Police “black site” right here in the city — where CPD supposedly keeps people in secret to interrogate them without access to a lawyer — I was skeptical. Scott Greenfield is too:

How is it possible that this off-the-books facility existed for so long, and yet nobody, no lawyer, no judge, raised its existence, whether in a criminal proceeding following an illegal interrogation, or at arraignment when a beaten defendant appears with no cognizable explanation for the imprint of the Glock on his face?

What about a civil suit?  Where are the § 1983 actions for the deprivations of civil rights?  Even if the state courts were part of some conspiracy to keep this black site out of the courtroom, are the federal courts part of the conspiracy as well?  And what of the family of the “at least” one dead guy?  Didn’t they go to a lawyer to address this little detail, that their father or husband turned up dead?

Scott doesn’t like when people speculate in his comment section, so I’ll do it here.

Part of the answer to Scott’s question of why this hasn’t come out is that this is Chicago and that’s how we roll. Former Commander Jon Burge tortured people for years before it came out. Actually, it came out all the time, but just from criminal scumbags, not anyone that the good people of Chicago were willing to believe.

I’m sure this place really exists, and I’m sure people are occasionally interrogated there. I’m also pretty sure there have been some shenanigans about whether or not somebody’s client is actually there. However, I also think that calling it a “black site” is just hype for the Guardian.

Big city police departments have lots of buildings that aren’t technically police stations — armories, administrative centers, supply depots, specialized units, stuff like that. It’s not hard to imagine that if you’re a cop who’s grabbed somebody up and you want to talk to them without the distractions of a busy police station (or their lawyer) you might want to take them to one of these buildings. It’s police-controlled, but it’s not the first place someone will look.

Or suppose you’re a cop attached to one of those special units that operates out of that Chicago-Police-building-that-is-not-a-station, maybe a unit with some kind of intelligence function. You’re trying to develop an informant, so you pick the guy up and bring him to your office. Or you happen to stumble on a crime in progress and make an arrest.

In any case, meanwhile, somebody trying to help the guy you picked up — perhaps his mother — might call 1-800-LAW-REP4 and a lawyer like Eliza Solowiej (mentioned in the Guardian story) might try to visit him. She can’t find him at any of the stations, but being a somewhat infamous thorn in the side of the Chicago Police, she knows to try Homan Square.

Since it’s not a police station, it’s probably not set up to receive the public, including lawyers looking for their clients. And the cops there are even more surly than usual because they’re not used to people walking up and asking questions. It’s probably not normally used to hold people either, so the folks guarding the doors don’t really know how to deal with it. Easier just to tell the lawyer he’s not there and hope she goes away. Or maybe she gets a cop who knows the rules and he lets her in.

(Both things happen in the Guardian story. Besides, you don’t need a “black site” to make cops lie to defense lawyers.)

By the way, the Chicago Police say that Homan Square houses the Bureau of Organized Crime, the SWAT Unit (which would explain the military-ish vehicles), Evidence Technicians, the CPD ballistics lab, and a few units that have undercover officers. I’m pretty sure it’s also where you go when someone steals the radio out of your car and the police call you to say the found it. And from other information, I think it includes city-wide anti-prostitution and anti-gang functions. Most of these aren’t exactly street cops who arrest people all the time, so it’s not the first place people think of when they’re looking for someone who’s been arrested.

I imagine they all got a memo from headquarters about what to do if a lawyer drops in. Followed by a word-of-mouth warning that there are going to be reporters around, so for God’s sake don’t do anything stupid.

Update: My laptop battery was running out of juice when I wrote this (It went into hibernation in the middle of the page refresh after I clicked Publish!), so it was kind of a rush job. I wanted to clarify that when I say that the Homan Square building isn’t really a station, what I mean is that it’s not one of the 22 district stations that Chicagoans think of when we talk about “going to the police” to report a crime or a car accident or something like that. CPD still calls it a station.

Return to the Planet of Reasonable Doubt

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reviewing the Charges Against the Bronx Defenders

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why Are Grand Juries So Secret?

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

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

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

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

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

Much of the justification for grand jury secrecy is OPSEC:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Hat tip: Scott Greenfield.)

The Bronx Defenders Get Some “Corrective Action”

A resolution of sorts has arrived at the Bronx Defenders, with lawyers Kumar Rao and Ryan Napoli both resigning from the firm as a consequence of the controversy over their involvement in the “Hands Up” rap video. News reports say that Executive Director Robin Steinberg has been suspended for 60 days without pay, and that Steinberg and her organization will be under increased scrutiny in the future.

Offhand, this sounded about right. Not in the sense of being just or fair — the complaints about Steinberg in particular seem overblown — but in the sense that it sounds like enough to placate the wolves and allow Mayor Bill de Blasio to claim he did something about the problem.

News reports also mentioned some other changes, and the Mayor’s Office of Criminal Justice (MOCJ) has now sent out a letter explaining the corrective actions, which includes additional review and correction steps. I don’t know enough about New York bureaucracy and politics to understand what it really means, but Scott Greenfield does, and his criticism is withering.

Regarding the hiring of Jason Lilien, former Bureau Chief of the New York State Attorney General’s Charities Bureau,  to advise the Bronx Defenders board on how to address the problems identified by the DOI’s findings, Scott remarks,

Perfect, because the funding for Bronx Defenders will be far better spent on paying for this nonsense than representing the indigent.  After all, everybody knows how indigent defense is rolling in so much dough they have oodles of money to squander on paying non-productive former state functionaries.

And then, they now have a former Attorney General bureau chief telling an indigent defense organization how to function.  Perhaps it didn’t dawn on the mayor’s office, but the attorney general’s office is on the other side of the criminal justice function, the side that wants to see every client of Bronx Defenders convicted.

The MOCJ also wants the city’s Corporate Counsel to create a training program to help the Bronx Defenders “ensure that its attorneys are zealously representing the interests of their clients and observing their responsibilities as officers of the court,” to which Scott responds,

So New York City’s Corporation Counsel, whose job it is to defend police for wrongful conduct, will now have their finger in the training of public defenders to “ensure” they are zealously representing their clients?

Let me just remind everyone that the “Hands Up” lyrics are about the community anger over the fact that police seem to face no consequences for killing young black men. Now the organization that helps ensure they face no consequences has been given influence over the Bronx Defenders.

The one thing that has never been in doubt was that Bronx Defenders did its job well.  There is, on the other hand, some serious doubt about the efficacy of Corp Counsel’s office, it being the place where third stringers get jobs after they’ve been turned away by the two US Attorney’s offices, five city district attorney’s offices, and the Special Narcotics prosecutor.

The notion that anyone at Corp Counsel should have any part of their anatomy, whether a finger or worse, involved in what Bronx Defenders do is ridiculous.  If anything, Robin Steinberg ought to teach Corp Counsel lawyers how to do their job, though she wouldn’t because they are the adversaries in the system.

Scott’s not kidding. The Bronx Defenders have a training program in criminal defense, and they provide training in indigent defense to other organizations.

As Scott summarizes the changes, it’s pretty typical government theater with a dose of cronyism:

All of this over a momentary appearance in a music video?  Of course not. The video was trivial, though the punishment, that skims money out of indigent defense so it can be used in the Full Employment For Former Government Functionaries Act, will directly harm the poor in the Bronx.

This is about the mayor appeasing the cops, at the expense of Bronx Defenders, and more importantly, the defendants in the Bronx courts who have long suffered mightily at the hands of cops who target their neighborhoods, their youth of color.

This all seems like an awful lot of trouble over a few lawyers who opened the office on a Sunday so they could be in a music video. Hopefully, the Bronx Defenders won’t have to waste too much more time and budget dealing with it.

A Very Good Point About the “Hands Up” Controversy From Radley Balko

In his article about the Bronx Defenders’ involvement with the “Hands Up” rap video, Radley Balko makes explicit something I had in the back of my mind when I wrote my post, but that I couldn’t quite articulate:

In the Bronx Defenders, we have group that knows how to work the system. It has irreplaceable institutional knowledge of the city’s bureaucracy, its courts and its social welfare system. Its lawyers put that knowledge to work to better the lives of poor people. For the sake of argument, let’s stipulate that the video above really does call for violence against cops. And let’s stipulate that the attorneys who appeared in it knew as much ahead of time. Terminating the city’s contract with the Bronx Defenders would placate angry law enforcement groups and their supporters. But who would it punish? The Bronx Defenders staff are by all accounts talented attorneys. They’ll find jobs elsewhere. The people who will be punished are their indigent clients — both present day and in the future. Because two attorneys appeared in a rap video, the poor in the Bronx will be robbed of one of their most powerful and effective advocates. That’s some pretty severe misplaced accountability.

In a nutshell, that’s why people should be angry about what’s happening to the Bronx Defenders.

A Bit Of Excitement Around Here

On a personal bloggy note, this past week I’ve started seeing signs that Windypundit is once again beginning to draw a bit of attention. The tweet for my post about the attempt to shut down the Bronx Defenders because of a rap video was retweeted by a relatively large number of people, starting with Gideon and Scott, and that post has received about 25 times the traffic one of my posts usually gets. I’ve also received a couple of private “Thank you” emails from Bronx Defenders staff, and David Feige was nice enough to drop by in the comments.

And now I see that Radley Balko at the Washington Post has published an article on the Bronx Defenders’ troubles, and it includes a link to my post and an extended quote from it. That’s pretty cool — getting that kind of attention from a WaPo columnist. Strangely, however, the part of my post that Radley decided to use was my attempt to explore what the lyrics of Uncle Murda’s “Hands Up” really mean. Because, when you’re looking for insights into rap music, aren’t I the first person you think of?

Just call me MC Big Windz. And join me next week when I disclose yet another version of Big Sean’s Blessings, speculate whether Meek Mill’s second studio album can possibly repeat the rambunctious mayhem of his debut, and discuss rumors of an emerging 100th problem for Jay-Z.

Je Suis Bronx Defenders

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Hat tip: Scott Greenfield)

DUI Lawyers and Faith In Websites

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

Every single lawyer website I visited had misstated the law.

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

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

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

That’s my theory.

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

When it comes to the web guy copying something from another site, my go-to example is Jerald Novak & Associates, whose website at 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?

Illinois Schools Hate Your Children’s Privacy

Illinois recently passed an anti-bullying law that some school districts are interpreting as granting some disturbing powers, according to a story at Motherboard by Jason Koebler:

School districts in Illinois are telling parents that a new law may require school officials to demand the social media passwords of students if they are suspected in cyberbullying cases or are otherwise suspected of breaking school rules.

The law, passed as HB 5707, apparently does not specifically say schools can demand student social media passwords, but school districts appear to be acting under the belief that it interacts with a bill from the previous year.

That law states that elementary and secondary schools must notify parents if they plan to ask for a password, and that it can be asked for if a student violates policy. The cyberbullying law codifies the idea that Facebook harassment is a violation of code policy, which is why you see these letters popping up.

I only glanced at the legalese briefly, but it seems to me that most of the violence to student privacy is done by the earlier law, with the more recent bill only adding the bullying element.

Edwin C. Yohnka, Director of Communications and Public Policy for the Illinois ACLU, tells me the anti-bullying bill (which his organization supported) doesn’t actually give schools this power:

The story about the single downstate school district was, of course, disturbing. That said, that school district badly misread their authority under the new Illinois law. As the sponsor of the measure made clear in several public statements this week, the intent of the law was never to permit school districts to gather social media passwords for students. Those social media accounts would, as one might expect, include lots of personal information that the school district should not be accessing.

That hasn’t stopped Triad Community Schools Unit District #2 from putting on the jackboots:

Leigh Lewis, superintendent of the Triad district, told me that if a student refuses to cooperate, the district could presumably press criminal charges.

“If we’re investigating any discipline having to do with social media, then we have the right to ask for those passwords,” she said.

“I would imagine that turning it over to the police would certainly be one way to go. If they didn’t turn over the password, we would call our district attorneys because they would be in violation of the law,” she added. “That would only be in some cases—we’d certainly look at the facts and see what we’re dealing with before we make the decision.”

This is wrong on so many levels.

If a student is using social media to send bullying messages, investigators can read the messages from the victim’s account. And if they’re private messages that aren’t part of the harassment of the victim, then officious meddlers like Leigh Lewis have no business reading them without a warrant.

I don’t know why they think they can treat social media differently from other communication methods. If students used the U.S. Mail to send letters (as your grandparents did in olden times) schools wouldn’t be allowed to read them. Nor would they be allowed to tap students’ phones without a warrant. But somehow they think social media is different. Somehow they think digital communication is less protected. (And legally speaking, it probably is. Which is something we ought to change.)

I’ve been living life in the digital world for over thirty years, and the idea that someone could be forced to give their password to a total stranger feels like an incredible violation. The gall of these bastards. They say they’re just interested in bullying, but they want to see everything.

To a heavy user of a social media site like Facebook, letting a stranger use your account is like letting a stranger into your home. It’s like letting a stranger rifle through your wallet, dump out the contents of your purse, and paw through your underwear drawer. They’ll be able to read every message your child sent to everyone they know. In addition, they’ll also get to read every private thing that your child’s family and friends shared with them in confidence, thus violating the privacy of innocent bystanders.

With the password, school district officials could gain access to anything any of you might share over the social network — private thoughts your children shared with friends, information about medical or psychological problems of family members, titillating details of your child’s sexual experimentation, what you really think of some of your kid’s teachers, your off-the-cuff comments about your boss, a photo of that time you let them drink a beer with you, passwords to other computer systems that someone sent in a message — the list goes on and on.

And once they have the password, they will be able to assume your child’s virtual identity. (It’s probably not legal, but who would stop them?) They can delete stuff they don’t like, they can interrogate your child’s friends in the guise of your child, they can ask family members for sensitive information. Furthermore, major social media credentials often serve to control access to other web sites (e.g. “Login with your Facebook account”), giving them God-only-knows how much access into your child’s life.

I’m seething with anger over the depth of this violation of privacy. I don’t have kids, but my gut reaction is that you should respond to a school’s password demand as if they were demanding to see nude pictures of your child. If that means you punch them hard in the face again and again until they go down, and then kick them in the ribs until they cough up blood, all while reciting Jules’s “Lay my vengeance upon thee!” speech from Pulp Fiction…that would be wrong. Don’t do that. It’s a very bad idea. (But have I mentioned that this makes me angry?)

My gut also says you should tell your kid to borrow a legal strategy from Saul Goodman and repeat this key phrase: “That’s not my social media account.” Or say they can’t remember the password. Or give up the password and then change it a minute later “for security reasons.” Or give control of the account to someone outside the jurisdiction. Or…

Sadly, those are also bad ideas. Technical hacks of the law don’t work very well in the real world legal system. They may sound clever, but judges don’t have much appreciation for clever. They tend to see it as contempt or obstruction. Don’t do anything clever.

But if you have the resources, and some school authorities try to pull this shit, don’t let them get away with it. If some school employee tries this crap on you, call a lawyer. There are serious Constitutional issues here, so you might be able to get a public interest law firm to take it on for free.

But…if this makes you as angry as it does me, and you’ve just got to do something…I think there’s a pretty good argument that people with no respect for your privacy have no grounds to complain about theirs. If some school official forces your child to give up their privacy, don’t keep it a secret. Call them out on that shit. Name names. Give out contact information. To get you started, the contact page for the Triad school district is here.

(Hat tip: Robby Soave.)

Of Experts and Explainers

The Volokh Conspiracy blog has finally made the move behind the Washington Post paywall, and that led to an interesting comment on Twitter by conspirator Orin Kerr about the change in audience from being an independent blog to being part of a major media outlet:

I think we’ve gained some and lost some. I’m worried we lost the law nerds and gained general interest readers.

As Roger Ford adds,

Skimming down the site now, it sort of reads like “Eugene Volokh explains the legal news for lay readers.”

The original Volokh Conspiracy site had long been a source of intelligent discussions about legal theory, but with its new larger and more varied readership, it has apparently become less focused. Scott Greenfield at Simple Justice explained the change in more detail:

Forgive me for digressing, but my thoughts are best expressed with some context. While VC historically highlighted legal scholarship from a somewhat conservative libertarian perspective, it did so with a touch of realism, in connection to real world events, that made it relevant to what practicing lawyers do, as well as judges who decide such matters. VC was the nexus between theory and practice.

SJ is written from the criminal defense lawyer perspective, which meant that it tended to be too rough and vulgar for academics. From my perspective, the critical audience was fellow CDLs; that others, from lawprofs to civil lawyers to non-lawyers, didn’t really matter.  To the extent I was concerned about other people’s views, it was the views of my colleagues, my brethren.

That VC has abandoned its effort to connect academic theory, even with its libertarian tilt, with real world practice, and instead sees its future as persuading the groundlings to embrace its theories, makes no sense to me at all.

Does that mean the ridiculous drivel dished out by Paul Cassell will be the norm?  Does that mean Eugene will no longer offer First Amendment analysis of any depth?  Does that mean Orin will only use small words and abandon trying to explain the mosaic theory?

That’s a common area of tension that shows up in many fields, including the sciences: There are people who are important in their field, and there are people who are experts at explaining their field. There’s not much overlap.

Some of the explainers achieve a degree of fame, but when you look at their scientific contributions, they haven’t usually made major contributions to their field. Carl Sagan was not one of the world’s greatest astronomers, and Neil deGrasse Tyson is not one of the great astrophysicists. Much the same can be said of Richard Dawkins and Steven Pinker in their fields, and Bill Nye The Science Guy is more of an engineer and inventor than a scientist.

I’m not saying these people are idiots or fakes. I’m sure they all did their jobs very well, and they’ve usually contributed something original to their fields, and all of them by definition are good at science education of some kind. Nevertheless, they usually aren’t among the top experts in their fields in the opinions of other experts in their fields.

The real experts are rarely well known to the public. Except for major historic figures like Isaac Newton or Charles Darwin, most of us wouldn’t recognize the names of important research scientists unless they have stuff named after them like Heinrich Hertz and Alessandro Volta or because they have entered popular culture, such as Erwin Schrödinger, known for his cat, and Werner Heisenberg, known for his uncertainty principle (and now for also cooking crystal meth). In their time, however, they weren’t well known to the public.

(Because the major contributors to scientific fields are generally not known to the public, I’m pretty much guaranteed to have characterized someone as an explainer rather than a major contributor because I am unaware of their important contributions to a field other than my own. Sorry.)

By way of example, my background is in computer science, and I think I can come up with a few very important contributors to computer science that you probably never heard of, such as Edsger Dijkstra, Donald Knuth, C.A.R. Hoare, Fred Brooks, Grace Hopper, and Niklaus Wirth. You probably know Noam Chomsky, but for his politics rather than for his influence on computer science, and everyone seems to have heard of the Turing Test for artificial intelligence, but that was not Alan Turing’s most important contribution to computer science.

The division between contributors and explainers often occurs within academia, in the split between teaching and research. Economist Steven Landsburg illustrated the difference between these groups by analogy to a cocktail party involving two groups of people: The researchers are like a group of people in the center who are talking to each other about all the interesting things they do, whereas the educators are are all standing around the edges, talking about what the group in the center has been up to. (I may have mangled this a bit.)

Landsburg asked readers which group they’d rather talk to: The interesting people in the center or the people at the edges who talk about what the folks in the center are doing. To him, the answer obvious answer was that you’ll want to talk to the people in the center, and that’s why students are better off joining academic departments that do research.

I think that misses an important point: Talking to the group in the center is only the best choice if you can understand what the people in the center are talking about. A student new to the field is unlikely to benefit from discussions that assume half a decade of education in the field. More to the point, there’s a difference between understanding complicated subjects, and knowing how to break down complicated subjects into simplified component bits of knowledge that can be taught to students.

One of my introductory calculus classes was taught by a professor who was one of the most important researchers in the math department. It was a terrible class. I have no doubt he understood the subject, but he had no idea of what it was like to not understand calculus, and he was consequently incapable of explaining it to us. Rather than using carefully crafted examples to illustrate how calculus works, he would make up ad hoc problems that required us to spend a lot of time thinking about ancillary issues. The homework problems would be straight out of the lesson plan, which was not always what he had been teaching us. The disconnect was especially bad on the test questions — I’m convinced that some of them required us to know things he didn’t realize he hadn’t taught us yet.

There’s also the question of whether the people in the center will be willing to talk to people who know very little about the subject. After all, they also want to learn the cool new stuff, and that means they have little time for newcomers who can teach them nothing interesting. Serious research professors are known for having crappy office hours.

Switching back to my own field, software development, as an experienced software engineer, I would probably have trouble figuring out how to teach an introductory course in computer programming. For example, when I approach a programming problem, I might think about many aspects of it at once — algorithmic correctness, efficiency, resource consumption, parallel processing, network traffic, database architecture, interface design, scalability, generalizability, separation of concerns, layering, composability, opportunities for refactoring, testability, and so on. I’m not trying to brag. Those are all things that pretty much any experienced software engineer will keep in mind, and they are things that all developers should learn about.

However, it would be a mistake to try to teach someone computer programming from the ground up by teaching them about all those things at the same time. A good teacher would probably start with some foundational skills such as expressions, control structures, and basic class design before moving on to details of the language and the runtime library and then some of the bigger-picture organizational concepts.

Every field needs both kinds of members — those who do it well, and those who explain it well. Those who do it well sometimes look down on those who teach it, especially since the teachers often lack the detailed knowledge of the practitioners, and they often make mistakes. These errors and omissions are a problem, and they should be corrected, but when it comes to teaching a field of knowledge, a skilled teacher who gets some parts wrong can still impart more information to an audience than a skilled practitioner who knows everything but doesn’t know how to explain it.

For example, in discussing the weather, we refer to the relative humidity of the air. The basic idea is that air has a temperature-dependent maximum capacity for moisture — the higher the temperature, the more water the air can hold — and relative humidity expresses how much water is in the air as a percentage of the maximum theoretical capacity.

This concept explains thinks like why items in the refrigerator frost over when you leave the door open — the warm room air cools down, which reduces the water carrying capacity below the amount of water already in the air, forcing the excess water vapor to be deposited as “sweat.” This is also why air conditioners always have to drain off water: The suddenly cooled air can’t hold the water and deposits it on the evaporator coils.

This model also explains why we run humidifiers in winter — your furnace warms the air, which increases it’s water vapor carrying capacity, but your furnace doesn’t actually add water to the air. Since relative humidity is the amount of water vapor in the air divided by the maximum capacity, and only the capacity is increased, your furnace reduces the relative humidity of the air, and it feels too dry. A humidifier adds water vapor to bring the relative humidity back up to comfortable levels.

Further, the human body’s cooling system relies on sweat evaporating from the skin to carry off heat, but if the air is already near its carrying capacity, there’s no “room” for the sweat to evaporate, so your body doesn’t cool enough. This is why dry heat is more comfortable than hot and humid weather. It’s also why we set out thermostats warmer in winter than in summer: The heated air is drier, so evaporative cooling makes us feel chilly unless we bump the temperature up a bit.

This “carrying capacity” model of humidity is widely known, it makes sense of a lot of things we observe about the world, and it is routinely taught by school teachers. And yet it is almost completely wrong. The real explanation of what’s going on is considerably more complex and harder to understand, unless you are used to thinking about systems in equilibrium and know some basic physics of gases.

To be sure, the correct explanation is much better. It can be expressed analytically, and you can use it to solve real-world engineering problems, where it will give accurate answers across a broad range of scenarios. And yet most people can get by with the simple but wrong explanation, because it’s good enough. And in this case, good enough is easier to teach.

Understand, I’m not defending teaching people things that are wrong. That’s always a bad outcome, and in fields like medicine or law, it can be dangerous. What I’m saying is that often someone who’s good at explaining things can be a better educator, even if they make some mistakes, than someone who gets everything right, but can’t get it across to anyone else.

And sometimes it’s not so much that they can’t explain it as that they won’t explain it or they don’t have the time to explain it. We can complain about some of the questionable neuroscience in Carl Sagan’s Dragons of Eden, but most real neuroscientists are busy doing real neuroscience, and they don’t have time to answer your questions or write a popular science book. We can poke fun at law professors who reveal their lack of practical knowledge when they go on talk shows, but most experienced trial lawyers are too busy practicing law to answer questions about the latest trial in the news. In both cases, as long as they don’t actively make people stupider, we’re better off with them than without them.

As for the Volokh Conspiracy, I don’t read enough there to follow what’s going on, but if they are changing their target audience from “law nerds” to general interest readers, that’s going to disappoint the nerds, but maybe it will bring a smarter, more rigorous explanation of the law to lay readers.

McWhores!

At The Honest Courtesan, Maggie McNeill notes a human trafficking propaganda infographic by Haisam Hussein that includes this map, which shows sex trafficking hot spots:

TraffickingMap20150114

This pattern looked familiar… Watch what happens when I overlay the sex trafficking hotspots with another geographic data source. The overlay’s not perfect, because the maps use different projections, but I think a clear pattern emerges:

McDonaldsTrafficking

The other data source is a map of every McDonald’s location in the United States. Note that every single sex trafficking hotspot corresponds to a cluster of McDonald’s restaurants. The conclusion is obvious: McDonald’s food is turning our women into whores!

The obvious alternative explanation — that McDonald’s restaurants are caused by sex trafficking — can be easily disproved by noting the presence of McDonald’s clusters in places that the sex trafficking map shows as prostitution-free, such as Minneapolis, Portland, and Dallas. Clearly McDonald’s are the causative variable.

(The suggestion that maps of sex trafficking and McDonald’s restaurants are really both just maps of the U.S. population is clearly a deceptive tactic by sex trafficking apologists trying to downplay the magnitude of the crisis. Pay no attention to it.)

So alert the media, write your Congresscritters, and start the #EndMcWhoreDemand hashtag campaign now! Our children’s future is at stake!

Free Speech From a Friend of the Blog

Over at the Friendly Atheist, my sometimes co-blogger Rogier van Bakel (a.k.a. Terry Firma) comes out of the closet with some harsh words about media outlets that congratulate themselves for standing up for free speech but refuse to publish images of the controversial Charlie Hebdo cover even in stories specifically about it.

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