The Facebook post above was posted to Reddit earlier today.  We don’t know if this is an accurate copy or not, the internet being what it is, but it’s close enough to what we’ve heard actual officers say that it is useful to illustrate a couple of points.

First, the whole “Collars for Dollars” mentality we’ve mentioned before. In short, the NYPD is a unionized labor force, whose workers get paid a base salary plus overtime. The base salary is barely sufficient to meet the expense of living in NYC (so many cops choose to live pretty far away from the city, cutting any ties to the communities they police, with attendant consequences). The way for an officer to make some real money is by working overtime.  That lovely, lovely overtime is what pays for their mortgages, their kids’ schools and the occasional night on the town. The way to make overtime is either (1) by making arrests or (2) working a “detail.”

Arrests generate overtime because, at the end of one’s shift, one gets to stay at the precinct for many more hours filling out the reams of attendant paperwork, securing evidence, and helping a prosecutor draft the various complaints. If any of the collars were for felonies, ideally they have been timed so that the resulting grand jury presentation will be held on the cop’s regular day off — RDO for short — which gives the cop 8 hours of overtime even if he only showed up at the DA’s office for half an hour.

Details are out-of-the-ordinary assignments where an event requires extra police to provide security, police not otherwise assigned to a normal duty — police working overtime or on their RDO. Details can range from providing a police escort for a visiting dignitary, to lining the streets for a parade, to dealing with an unruly mob. Details are a great source of overtime.

You see this in the Facebook discussion, which appears to include more than just one NYPD officer. The original poster is on his RDO, and he’s hoping the OWS protesters start acting up so he can get called in to do a double tour and get 15 hours of overtime pay (for getting the chance to hit some protesters). Another jokes that he hopes they don’t start rioting until his shift starts that night, presumably so he can maximize his overtime.

There’s nothing wrong with police officers joking about stuff that, to the rest of us, might sound obscenely offensive. It is often a tough job, often horrific, and black humor is how people of all walks of life deal with such things. The post about pretending to be a protester, shoving people from the inside, shouting invective, and leaving a BB- or paintball- gun behind? That one’s probably a joke (although — and probably because — such things have been known to happen).

But there are other wishes expressed here which, though certainly cathartic, are probably more sincere. The desire to “rock,” or get physically violent with a protester, comes out strong here. Why? Because the protesters are the enemy.

That’s our second point: To the police, it’s “Us against Them,” and you are Them. No matter how nice and decent and of good character a person is, it is nigh impossible to be a police officer for very long in this town without developing an “us against them” mentality. It’s easy to feel aggrieved when people march on city hall every time you blow your nose, when people call you names for protecting them, when you’re hamstrung by legal technicalities and PC policies that prevent you from doing your job. When you’re a cop, nobody is on your side except for your fellow cops. Everyone else (and yes, this does include prosecutors) is the Other.

And when that Other starts acting up, breaking the rules, committing repeated offenses of Contempt of Cop… well, that resentment builds up. Whether it’s a bicycle protest that is inconveniencing half of Manhattan, or a perp who makes the cop chase him through alleys and trashed lots, or a group of OWS types shouting invective, that resentment can manifest itself in physical violence. Sort of a “fuck me? fuck you!” punch or tackle. It’s not business; it’s personal.

You’re already the Other. Once you start being a real problem, you become the Enemy. And the longer the cops feel restrained or frustrated from doing something about it, the stronger this enmity grows, along with accompanying feelings of resentment and grievance.

And so you get the cop who tackles a bicycle protester, seemingly out of the blue. Maybe the cyclist shouted something or made a face, or maybe he was just the one that this cop was going to take it out on. And so you get the cop who, on finally catching the fleeing perp, gives him a couple of good pounds. He ripped his pants, which is coming out of his meager salary, and he had to get all out of breath and take some risks chasing after the guy — the perp owes him that.

And so you get cops hoping that an OWS protester gives them a reason to hit back. The desire to hit back is strong and real, especially the longer the cop feels restrained from doing something, and it’s only waiting for an excuse to do it. It’s not right, but it’s the way it is.

Keep that in mind next time you take part in a protest. Be safe out there.

The decisions of the U.S. Supreme Court often have important repercussions around the world, so it’s perhaps not surprising that is studied by lawyers and academics far beyond the Court’s jurisdiction. The results of such studies are often more useful for their insights into how others see us, than for any particular insights into how things work here. That’s because typically, the concepts and even the words we use to describe them just don’t translate all too well. Then again, they’re often misunderstood right here at home — the adjectives “liberal” and “conservative,” for example, have very different meanings depending on whether they’re modifying a political or jurisprudential noun, but try telling that to the average journalist.

Every now and then, however, you get a foreign study that — while still misinterpreting concepts and terms — nevertheless makes a nifty point.

One example was published just a couple of days ago: “Justice Blocks and Predictability of U.S. Supreme Court Votes,” (Nov. 9, 2011) by Spanish academics Roger Guimerà (of the Institució Catalana de Recerca i Estudis Avançats in Barcelona) and Marta Sales-Pardo (of the Departament d’Enginyeria Química, Universitat Rovira i Virgili in Tarragona). In their paper, Guimerà and Sales-Pardo tried to figure out how any given justice’s votes are affected by the votes of the other justices — not why or how, but whether the vote of Justice X depends on how each of the other justices are voting.

This is something that common wisdom claims happens all the time, such as the trope that Thomas tends to simply follow Scalia’s lead. There is usually some basis for the common wisdom, but it is never entirely accurate (in fact now there’s even talk of Thomas being a thought leader in his own right).

But all these comparisons tend to only compare one justice to another, or maybe blocs that tend to vote together on certain issues. The Supreme Court, however, is made up of nine justices, who all interact with each of the others in different ways. That’s 36 separate relationships. It’s even more complex when you try to figure how any relationship is affected by the other 35 relationships, and so on.

So enter Network Theory.

This is Guimerà and Sales-Pardo’s bailiwick. As NewScientist puts it, they “study complex systems, such as the metabolism of living cells, by considering them as networks of interacting components.” It’s often hard to tell what’s really going on in there, when there are many things interacting in often poorly-understood ways, and when you don’t have all the data you’d like to have. Network theory is a way to put the pieces together and figure out what the relationships probably are. Think of it as a sophisticated form of statistical analysis. It has been applied to hard sciences like biology and physics, to complex entities like the internet and the human brain, and even to the soft sciences of sociology, politics and economics.

Guimerà and Sales-Pardo determined that, if you look at how the other 8 justices voted in a particular case, you can usually predict how the 9th voted. It’s not prediction of future votes, but of what the interaction of these 9 justices will do in this particular case.

It may not seem surprising at first, but it becomes more surprising when you realize that this prediction has nothing to do with whether the justice is left- or right-leaning, or whether the president who appointed them was a Republican or a Democrat. The algorithm does not require any input with respect to the justice’s own ideology. The output is not affected by who appointed them. This would undermine much of the common wisdom, which holds these things to be the main drivers of how the justices influence each other’s votes. And indeed, the accuracy of the predictions exceeded that of forecasts by legal experts and of algorithms that took account of the issues in the cases.

Not so surprising was the finding that actual predictability was higher than what one would expect if all 9 were perfectly independent — they do interact, and so they debate and try to change each other’s minds, and they make concessions, and they form alliances and voting blocs. This leads to greater stability. And in fact, when cases were decided 5-4, the justices were more likely to vote with a bloc than to vote as they would have had they been entirely independent. It’s not ideal, perhaps, but it’s hardly surprising given human nature.

What was surprising was the observation that, during the last 50 years of the study (which only analyzed cases up to 2004), the aggregate predictability steadily decreased. It became less and less easy to predict what one justice would do based on what the others were doing. In other words, the justices were acting more and more as if they were not interacting.

And the greatest drops in predictability came about whenever the president was a Democrat.  ”Aggregate court predictability,” they found, “has been significantly lower during Democratic presidencies.” This may be a correlation without causation, or it may reflect a digging-in-of-the-heels of individual justices and less inclination to be affected or influenced by the others. Why that would occur any more when one party is in office than another is hard to answer, though.

But the study didn’t look at why it happens or not, just whether it’s happening at all. It would make for an interesting discussion, though. What do you think?

Last week, the prosecution and the defense filed their sentencing memoranda in the Rajaratnam case.  Raj was convicted of 14 counts in all — 9 counts of securities fraud, and 5 conspiracy counts.  So what do the parties think that’s worth?  The feds asked Judge Holwell to sentence Raj in the range of 19.5 to 24.5 years.  The defense didn’t make a specific request, just said it ought to be “well below” what the feds want.

So 20 years, huh?  Wow, he must have been an awful bad guy.  Must have hurt a whole lot of people, right?

After all, a mugger in a dark alley only takes one person’s wallet.  A “white-collar criminal” can steal from thousands of people — and takes not just their wallet, but their life savings!  Right?

Well, hang on.  Did Raj actually steal from anyone?  How many investors did he really harm?  And did any of them really lose enough money to warrant locking someone up till we all have flying cars and jetpacks?

Judging from the feds’ sentencing memo, you bet.  Just look at this, from the introduction:

Raj Rajaratnam’s criminal conduct was brazen, arrogant, harmful, and pervasive.  He corrupted old friends.  He corrupted subordinates.  He corrupted entire markets.  Day after day, month after month, year after year, Rajaratnam operated as a billion-dollar force of deception and corruption on Wall Street.

Wow, that sounds awful.  So the victims are… who again?

But wait, there’s more:

Rajaratnam repeatedly leveraged the power of money and his position as the head of a 7-billion dollar hedge fund to induce friends, employees, and associates to participate in his criminal activities.  Although already rich, Rajaratnam did this to drive up his personal wealth through profitable trading in his hedge fund.  He did it to make sure that investors did not pull their money out of Galleon and to attract new money to his fund.  And he did it because of his egomaniacal drive to triumph over his competitors on Wall Street.

Again, wow.  (The feds sure like their adjectives, don’t they?  Comes off a tad over-the-top, if not insulting to the intelligence.)  So he was trying to increase his wealth, gotcha.  But at whose expense?  Guess we have to read more:

That was what he cared about: money and success.  What he did not care about, at all, was the extensive harm he left in his wake: harm to the capital markets; harm to the average, ordinary investors who played by the rules; harm to the companies whose secret information was misappropriated; and harm to the lives of those he corrupted.

Well, that sounds a little more like it… but again, who was harmed, and how?

Although particular investors on the other side of Rajaratnam’s illegal trades are not easily identifiable, there should be no question that ordinary investors paid the price for Rajaratnam’s crimes and that public companies were harmed by Rajaratnam’s repeated theft of corporate secrets.

Oh for crying out loud.  Are they joking?  Stripped of its demagogical rhetoric, this translates to “We have not identified any actual victims.  But we shouldn’t have to.  It’s obvious that lots of people must have been harmed, even if we don’t know who they were.”

If they don’t know who — or even whether — anyone was actually harmed here, how in blazes do the feds justify asking for 19.5 to 24.5 years of imprisonment?  Here’s how:

[The feds want that much time because they feel it is] proportionate to the historic nature of his crimes.  He is arguably the most egregious violator of the laws against insider trading ever to be caught.  He is the modern face of illegal insider trading.

That’s it.  That’s all.  “Because this is the first time we’ve ever caught someone so red-handed,” and “because this case got so much press.”  Those are the sole reasons why they are looking to put this guy away until he dies of old age.

Really?

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For the record, we’re predicting something around 180 months — 15 years or so.  We base that prediction on other sentences by this judge that we’re aware of, and a bit of that amorphous experience we call our gut.

But is even that what this case is really worth?  When all is said and done, who really are the victims of insider trading?

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It depends on how the crime was committed, really.  There’s more than one way to skin a cat, and there’s more than one way to commit securities fraud.  Some kinds of insider trading have more obvious victims than others.

For example, let’s say you break into the offices of 3M, and read a secret file that shows they are about to announce the release of a phenomenal new kind of sticky note that will revolutionize office work forever.  You max out your leverage and buy all the 3M call options you can afford.  When the news is announced a week later, you’re an instant millionaire.

Now, did your actions change the profit or loss of any other people?  Nobody else’s stock price went up or down a penny because of your actions.  3M’s shareholders are just as wealthy as they otherwise would have been.

What about the counterparties to your trades?  Didn’t you defraud them by buying at their price when you knew the price would be higher?  Not really.  Fraud implies misrepresentation.  The only thing you represented was that you thought the price was going to go up, which was true.  They did the deal not because of any representation you made, but because they calculated it to be worth it.  So nobody in the market seems to be a victim here.

But you stole.  You out-and-out stole secret information that you weren’t entitled to.  The value of that theft can be calculated a few different ways, but the simplest way is to look at how much you yourself profited from the theft.

It’s not really insider trading, then, so much as a simple act of burglary.  Applying the securities laws doesn’t seem to be called for.  But it is still considered security fraud and insider trading at the moment, and there is certainly an identifiable victim: 3M.  And an easily calculable loss: either your gain, or some other book valuation of the info you stole.

Another example where there is a clear victim and a clear loss is when a short seller gets wind of some confidential information that’s bad for Company X, and the short seller starts shorting Company X all over the place, further driving down the stock price.  Company X’s shareholders are tangibly harmed by this, because their assets just lost a lot of value they probably wouldn’t have but for this trading on inside information.  (If the trader was someone who actually owed a duty to Company X — an executive or other fiduciary — there’s an added sense of disloyalty, but the harm is still the same.)

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But apart from those examples and maybe one or two more, there just aren’t situations where insider trading really has any victims.

So why is it a crime?

“Because it undermines consumer confidence in the markets,” is the official line.  That’s hogwash, of course.  Consumer confidence would only increase if there were more insider trading.  Share prices would be determined, not by guesswork and conjecture, but by actual solid data.  Heck, it ought to be mandatory.  If the information is material, and it’s a publicly traded company, then the information ought to be public.  Theft of trade secrets should be the only law on the books here.

Not only is it beneficial to the markets, to have pricing based on accurate information, but there is no element of fraud involved.  It really isn’t securities fraud.  Nobody is being deceived; everyone is engaged in arms-length trades, buying and selling for precisely what they think the stock is worth.

It’s no different than if I buy a rare book from you for $10.  You think it’s worth maybe a buck on a good day, and you’re happy to sell it to me for what I offered.  I, on the other hand, know it’s worth at least $1000 to a collector I happen to know.  So what?  My purchase isn’t fraudulent or criminal in any way.  (Presuming you hadn’t hired me to assess the value of the book, of course.)  How is this different from insider trading in the stock market?

The simple answer is that, absent outright theft or misappropriation of secrets that don’t belong to you, insider trading doesn’t have any victims.  It doesn’t hurt anyone.  In many cases, it’s probably actually a good thing.

The only reason it’s against the law is because it’s politically fashionable for it to be so.  People love railing against “corporate greed” and “Wall Street crooks,” those amorphous evils of the populist psyche.  When the economy takes a hit, for good and basic economic reasons that have nothing to do with any criminal activity, there’s an outcry for punishment of the financial wizards doing things with money that we don’t understand.  Folks on the left pass more laws and regulations outlawing efficient market behavior.  Folks on the right pass stiffer sentences.  Prosecutors break their legs tripping over each other to indict the next big press case.  And so it goes.

Who are the real victims of insider trading?  In some cases, maybe it’s the people who get charged with it.

-=-=-=-=-

Even so… 20 years?

Really?

Really?

Everyone knows that eyewitness identifications are completely reliable — that is, you can count on them to be wrong.  (Everyone does know this, right?)  If the person being identified is a stranger, the chances of a correct I.D. are slim to none.  There are lots of reasons for this.  Eyewitnesses rarely have or take the time to study and memorize a person’s features.  People of one race are awful at identifying people of another race, largely because the parts of the face which differ from person to person are different from race to race — which is why people of another race often “all look alike,” because you’re looking for cues in parts of the face that don’t vary much in that other race.  And people just generally suck at remembering details consistently and accurately.

Still, sometimes an eyewitness description is all you’ve got.  And so what if the eyewitness didn’t see every detail of the face — at least they can describe the parts they did see.  Trained sketch artists take the partial descriptions provided by eyewitnesses, and using sophisticated software they can put together composite sketches that show what the bad guy probably looks like.

We’ve all seen them on the TV news, and various crime dramas would lead one to believe that they’re pretty useful.  And now with IdentiKit software, the details can be adjusted here and there until the witness goes “that’s him!”

But we never hear, after the fact, whether the drawing wound up being all that accurate.  There’s a good reason for this.  The odds of the drawing being accurate are so low, they are below statistical significance.  You’ve probably noticed this yourself, on the rare occasion when a police sketch has later been released with a photo of the culprit — the resemblance even then is usually pretty slim.

A thorough study of composite sketches by Charlie Frowd, of the University of Stirling in Scotland, had participants study a photograph of an individual for a full minute, then describe the face for a trained police sketch artist.  How well could people then recognize the faces in these sketches?  The recognition rate was as low as 3%.

Three percent.

MIT scientists Pawan Sinha, Benjamin Balas, Yuri Ortrovsky and Richard Russell have a great article here that describes problems with composite sketches and ways to make the software better.

The image above was taken from that article.  A trained and experienced IdentiKit officer was given actual photographs of celebrities with distinctly recognizable faces.  He was given all the time in the world — no pressures — and worked directly from the photos themselves instead of having to rely on another person’s descriptions.  And those sketches you see up there are the best the software could do.

Well, maybe the problem is with what the IdentiKit tries to do.  After all, it just works on individual features one at a time.  The eyes, nose, mouth, etc. are worked on in isolation.  Humans don’t look at features in isolation, though.  So there’s another kit out there called EvoFit, that’s more like a photo array that gets to evolve.  The witness is shown 72 random faces.  She picks out the six that most resemble the culprit.  The facial features of those six are then scrambled and recombined to make 72 new pictures.  The witness then picks out, again, the six who most resemble the culprit.  The process is repeated once more to get an image that pretty much matches what the witness saw in her mind.

Now, there are tons of problems with this method.  The suggestivity of showing pictures is pronounced — when witnesses choose photos from an array, they often choose not the one that closest resembles the culprit, but instead pick the one that looks different from the rest — and when a picture has been chosen, that image often replaces the image in the witness’ memory.  She now remembers that face as being the face of her attacker, even though it wasn’t.  This method of scrambling digital faces poses the same problems.

Still, it is more reliable than the IdentiKit.  Instead of a 3% recognition rate, the EvoKit attains a whopping 25% recognition rate.

One in four.

-=-=-=-=-

People suck at identifying strangers.  Period.  And yet in-court eyewitness identifications are the nuclear bombs of trial.  The victim points at the defendant and says he’s the one what done it, and you can see the jurors’ minds turning off.  So far as they’re concerned, this trial’s over.  The defense lawyer’s got a lot of work to do, now, to overcome that.

What would be just and fair, of course, would be to allow some evidence of the unreliability of eyewitness identifications in general, and the reasons why IDs can be wrong, so that the defense can tie them to specific testimony by the eyewitness to show that she made the same mistakes.  Not asking the jury to make a logical fallacy that, because it happens a lot in general, it must have happened here as well.  But actually drawing the jury’s attention to specific reasons why this particular testimony is not trustworthy, supported by expert testimony on the unreliability of IDs.

Don’t hold your breath waiting for that to happen, though.

As our first bureau chief, a wise and gifted man, would often say to us:

“Oy.”

Last Friday, we blogged about how this Rakofsky fellow had done something very foolish.  After being reported to have done some pretty bad lawyering, and being roundly disparaged by the blawgosphere as a result, he made things worse by shining a spotlight on it all and filing a lawsuit against everyone who’d written about him.  This included the American Bar Association, the Washington Post, and most of the better blawgers out there.  We pointed out how very foolish this was indeed.  And (with tongue firmly planted in cheek), we bemoaned the fact that we’d missed the opportunity to have commented on his behavior the first time, and were so excluded from the honor roll named in his (very badly drafted) complaint.  He could have let it all blow over, worked to rebuild his reputation, and maybe even have been forgiven for a newbie screwup.  But he’d made it worse, screwing up even more.

Well, he’s screwed up again.

He and his lawyer Richard Borzouye (apparently a former member of Rakofsky’s own firm in… Connecticut? Really?) must have worked all weekend long.  Because today, Tuesday, they served an amended complaint on the original 74 defendants… plus six or seven more.  Including us!  Apparently, if you commented on the original foolish complaint, you got added to the new one.

The allegations against us in particular are just dumb.  A pithy commenter online summarized the allegations as that we “have brought the legal profession into disrepute by making fun of” Rakofsky and Borzouye.  There’s more to it than that, however.  According to the amended complaint, our Friday post was written “with malice and hate, in a grossly irresponsible manner,” and made us “actors in the intentional infliction of emotional distress.”  You can’t make this stuff up.  We tried to read the relevant paragraphs out loud to a paralegal, but were laughing too hard.

We couldn’t help but be reminded of this old sketch (which also used to have us in stitches way back in our misspent youth):

“The moon mocks me…” Cracked us up every time.

Anyway, if they thought our Friday post was mocking enough to warrant an amended complaint, we’re sure they’ll think the same about this one.  (And all the other commentary that’s been posted by others today, as well.) So that’s probably going to lead to yet another amended complaint.  And more apparent mockery.  And more complaints.  And so on.  And so on.

Their process server will be pleased.

You’ve probably heard, by now, of this Joseph Rakofsky kid.  You know the one — the newly-licensed lawyer who took on a murder trial without any trial experience, who is alleged to have told his investigator to “trick” an eyewitness into denying having seen anything, and whose performance was so bad that the judge had to declare a mistrial.  You know the one — the guy who, after causing that mistrial and getting reprimanded by the judge, went online and bragged about the mistrial like it was some kind of success.  You know the one — the one who quickly became a laughingstock, as soon as the story got picked up by the ABA Journal, the Washington Post, and half the blawgosphere.

Well, you’d think he’d have wised up.  You know, let it all blow over.  Take the time to rebuild his reputation with hard work and diligence.  Memories are short.  Old news gets buried even on the seemingly permanent internet.  It was already happening — it’s only been a month or so since the brouhaha, and he’d already dropped off the radar.  It could have all been forgotten — even perhaps forgiven, if he’d manned up, admitted his error, and moved on.

But no.

Instead of doing the smart thing, this Rakofsky kid demonstrated once again some amazingly poor judgment, and filed a lawsuit.  Against the ABA Journal, the Washington Post, and half the blawgosphere.  In other words, everyone who covered or commented on his doings.

Brilliant.

So now, everyone who’s already demonstrated a willingness to write about his conduct, now has yet another thing to write about.  And you’d better believe they’re gonna.  We expect to be sipping our coffee in the morning and chuckling ruefully at responses by some of the numerous defendants.  As they’re some of the most heavily-read blawgs out there, we expect that by this time tomorrow, the name “Rakofsky” will have attained the same tragic/comedic status as “Santorum.”  Yet another shining example of the Streisand Effect.  Well done.

And of course we’re nowhere to be seen on the complaint.  Lucky us, we were on trial and not posting too much, and it blew over pretty fast.  But now being on that complaint is going to be something of a badge of pride.  And we’re not there.  Dammit.  Maybe he’ll amend his complaint to include us now, or maybe one of the defendants can do one of those… uh, civil procedure thingies… where you bring someone else into a case?  Whatever.

-=-=-=-=-

For those who want to read the complaint (and we can’t advise it — it’s so badly written it’s actually painful to read) you can find it on Scribd here, under the delightful title “Rakofsky v Internet.”  Sure to become an instant classic, never to be forgotten.

-=-=-=-=-

UPDATE: It seems there already is a badge of honor, compliments of Amy Derby.  Link.

When we were just starting out in the law, we frankly had no problem with the concept of profiling.  Not racial profiling — that’s just a logical absurdity along the lines of “most people who commit crime X are of race Y, therefore it’s reasonable to suspect people of race Y of committing crime X.”  We’re talking about profiling as the concept that a significant number of people who commit crime X exhibit the combination of traits A, B and C, which is a combination rarely encountered otherwise, and therefore if one were to look for people exhibiting traits A, B and C, then one might have a better chance of catching someone guilty of crime X.

Intuitively, this sounds reasonable.  If we were to know, for example, that certain serial arsonists are motivated by a sexual mania, that these arsonists tend to remain near the scene to masturbate or so they can masturbate to the memory later, that they tend to have spotty work and relationship histories, and that they tend to have crappy cars — well then, there’s nothing wrong in letting the cops scan the crowd of spectators at a fire, question any who seem to be getting a kick out of it, and investigate those who are single, unemployed, and drive a beater.  (This is an actual profile, by the way.  We didn’t make this up.)

And emotionally, profiling sounds wonderful.  Catching a psychopath is often difficult, because they don’t play by the same rules as the rest of us.  Wouldn’t it be nice if there were some, er, rules that we could follow — a formula of some kind — that would make it easier to identify and catch them?

As we said, in our early years we thought this was a great concept.  Whenever we encountered some findings that certain traits had been identified with this type of serial killer, or that type of terrorist, we thought it was fantastic.  But we didn’t think too critically about it.  And for sure we never bothered to look for the underlying data, much less examine the methodology used to determine how strongly these traits correlated with perpetrators of that crime.

The problem is, nobody else was doing that, either.

Profiling only works if the profile is accurate.  That should go without saying.  But it has become plain over the years that the various profiles out there are not accurate.  They are not based on actual data, but instead only on anecdotes.  (And as we like to say, the plural of “anecdote” is not “data.”)  Nor are these profiles based on any significant sample size.  No profiling study ever did even a simple regression analysis to determine whether any particular trait happens to be a meaningful variable.

We figured this out soon enough, of course.  After our first couple of years with the DA’s office, we were already joking about the silliness of profiles.  It was almost a party game to figure out which psychopathic profile we and our friends happened to fit (secure in the knowledge that hardly any of us were really psychopaths).

And the rest of the world soon caught on.  The Onion did a piece entitled “Crime Reporter Finds Way of Linking Warehouse Fire to Depraved Sex Act.”  Malcolm Gladwell wrote an outstanding piece in 2007 called “Dangerous Minds: Criminal Profiling Made Easy,” in which he solidly debunked the whole profiling scam, showing how there’s no science or statistics behind it, and even the data it’s based on is mostly useless.

It’s now fairly common knowledge that criminal profiling is about as useful as a Tarot deck.  So of course the FBI has stopped using it, right?

-=-=-=-=-

Wrong.

As a matter of fact, they’re expanding!  Just as the feds have (disastrously) tried to use street-crime investigative techniques like wiretaps to go after white-collar offenders, they are now (equally idiotically) starting to use criminal profiling to go after people for white-collar offenses.

Matthew Goldstein wrote an excellent piece on this for Reuters this week, called “From Hannibal Lecter to Bernie Madoff: FBI profilers famous for tracking serial killers are turning their attention to white collar felons.”  This (and the Gladwell piece linked to above) should be required reading for any white-collar defense lawyer now practicing.  When the Galleon case first came down, we were one of a handful of people doing white-collar defense who also had plenty of wiretap experience; now, of course, more of us are learning it the hard way.  Hopefully, with this new profiling issue, more of us will be prepared to deal with it ahead of time.  (And perhaps even nip it in the bud.  Like Barney Fife, we’re a big fan of bud-nipping.)

The agents in the FBI’s Behavioral Analysis Unit are the ones who profile serial killers and the like.  ”The hope is,” reports Goldstein, that they “can get into the minds of fraudsters and see what makes them tick.”

“This originally started out as an attempt to find a way to prevent and detect Ponzi schemes,” said Peter Grupe, the FBI’s assistant special agent in New York in charge of white collar investigations.  ”But it developed into something broader.”

The FBI’s profiling strategies are part of an aggressive new approach to financial crimes.  Facing widespread criticism over the lack of criminal cases stemming from the financial crisis, the FBI and federal prosecutors are keen on showing that they are not soft on white collar offenses.

Whoa!  Wait.  Let’s count how many things are wrong with just these few lines.

(1) They’re using profiling, which is not a reliable indicator in the first place.  And for which we would be willing to bet real money the feds have gathered very little actual psychological data, from a sample of offenders that is too small to be meaningful.

(2) They were just going to use profiling to catch Ponzi schemers, “but it developed into something broader.”  Whenever law enforcement says that phrase, it’s time to start screaming “no!”  It’s bad enough when the government says it in the first place, but when it’s that arm of the government that has the power to take away your liberty, property and reputation — to destroy your life almost at whim — only bad things can come of it.

(3) The feds are trying to create more white-collar cases for purely political reasons.  They sense some public pressure to prosecute people because of the financial crisis.  Ignoring the fact that the financial crisis was not caused by any, you know, crimes.  It was the result of stupid business decisions, stupid government actions, dramatic shifts in perceptions of liquidity, and banks shifting from lending to hoarding.  It may have exposed criminal conduct like Madoff’s, but it was not caused by criminal conduct.  Seeking to appease the masses with bread and circuses may have worked for Caligula (actually, it didn’t, did it), but it sure isn’t what the United States ought to stand for.  And it damn well isn’t an ethical or just exercise of the government’s authority.  In fact, it smacks of an offensive abuse.

(4) The feds want to show “they are not soft on white collar offenses,” not by actually catching actual criminals and convicting them, but by the functional equivalent of Captain Renault’s “round up the usual suspects.”  People who did nothing wrong are going to be rounded up, humiliated, their livelihoods destroyed, their savings spent and houses mortgaged to pay legal fees defending themselves against the might of the federal government.  Not because they did anything wrong, but because the feds have a new toy to play with.

(5) They’re using psychobabble to catch a “broader” array of white-collar types.  So apparently there are psychological markers for people who are more likely to commit insider trading, or fail to disclose bad news to shareholders, or take out a fraudulent loan, or swipe some money from the till?  Really?  They must be joking.  There are just too many kinds of people who wind up in these situations.  There is no “profile” of a white-collar offender any more than there is one for any other kind of theft or deceit.  People lie, cheat and steal for all kinds of reasons — and that’s all white-collar crime is.  So we guess the profile is anyone who hasn’t adopted West Point’s honor code as their own.  That really narrows it down, guys.  Nice job.

Don’t even get us started on the rest of what the FBI has to say for itself.  We don’t want this to turn into a rant.  But do read the rest of Goldstein’s article for yourself.

In the meantime, watch out.  Those Behavioral Analysis types might be looking at you.

Our jury’s still out, and there’s so much stuff to catch up on.  There’s the 5th Circuit’s denial of Jeff Skilling’s appeal, even though the Supreme Court had struck down the “honest services fraud” charge last summer.  We were so ready to write something about it yesterday, but work intervened, and now we’re not in the mood.  Maybe this weekend.

Instead, we’re all intrigued about the Senate hearings earlier this week on whether federal law enforcement ought to get a warrant before doing any search and seizure out there in the cloud.  Apparently, the Obama administration says the warrant requirement is just too much of a hassle.

The term “cloud computing” covers a lot of things, but for these purposes we’re talking about people storing data not on their own hard drives, but out there somewhere in the ether of the internet.  Of course, “out there somewhere” means “stored on someone else’s servers.”  Which means it’s there for the taking (or destruction) if those remote servers were to be compromised.  And of course, that means it’s out there for the seeing if law enforcement decides to go poking around in the cloud.

As the law currently stands, if an email is more than 180 days old, the feds are allowed to snag it without a warrant, under the 1986 Electronic Communications Privacy Act.  In yet another bit of Orwellian fractal weirdness, the ECPA was designed to ensure that online communications had just as much privacy protection as anything in the offline world.  (Given the erosion of Fourth Amendment protections in the brick-and-mortar world, a cynic might be tempted to crack that the ECPA has lived up to its expectations.)

As Vermont senator Patrick Leahy put it last September, when the Senate first starting considering changes to the ECPA, the statute

was a careful, bipartisan law designed in part to protect electronic communications from real-time monitoring or interception by the Government, as emails were being delivered and from searches when these communications were stored electronically. At the time, ECPA was a cutting-edge piece of legislation. But, the many advances in communication technologies since have outpaced the privacy protections that Congress put in place.

Today, ECPA is a law that is often hampered by conflicting privacy standards that create uncertainty and confusion for law enforcement, the business community and American consumers.

For example, the content of a single e-mail could be subject to as many as four different levels of privacy protections under ECPA, depending on where it is stored, and when it is sent. There are also no clear standards under that law for how and under what circumstances the Government can access cell phone, or other mobile location information when investigating crime or national security matters. In addition, the growing popularity of social networking sites, such as Facebook and MySpace, present new privacy challenges that were not envisioned when ECPA was passed.

Simply put, the times have changed, and so ECPA must be updated to keep up with the times

Think of it this way:  You’re storing your emails on a third party’s servers.  Isn’t there some lessening of your privacy expectations in that situation?  And on top of that, until maybe six or seven years ago, it wasn’t that outrageous to deem emails left on a third party’s servers for more than six months — instead of storing them to one’s own hard drive or local server for preservation — to be “abandoned.”  AOL users lost their emails after just a month or so.  If you didn’t actively save it to your hard drive, you didn’t want it.  (Forget, of course, the user’s reasonable expectation that the email would no longer exist in the first place.  Do not waste brain cells wondering whether one can abandon something that one believes to have already been destroyed.)

The point is, the law sort of made sense back in the 80s.  And it still kinda made sense when Google was new and Facebook was still in the future.

But now, things have changed.  In ways that are both dramatic and obvious to anyone who might be reading this post.  Now, by default, the vast majority of users do not store their emails locally (if they even know how to do so).  Emails are almost always accessed through a third party’s servers.  Almost nobody downloads their emails — and even if they do, the original remains on the server.

The vast majority of users expect that their emails, protected by their usernames and passwords, will remain private.  Even though the emails are stored out there in the cloud, the ordinary reasonable expectation is that they are private.

As we all know, the Fourth Amendment prohibits the search and seizure of stuff where there is a reasonable expectation of privacy, unless law enforcement gets a warrant based on a showing of probable cause to believe that particular evidence of a particular crime will be discovered by the search.  (For those of you desiring a quick primer on the various exceptions that apply, you can certainly do worse than to listen to N. Burney and G. Mehler’s brilliant CLE lecture, “Search and Seizure in 60 Minutes“)

The exceptions to the Fourth Amendment essentially boil down to situations where the evidence would cease to exist if a warrant were sought, or there’s some other thing we want the police to be able to do (such as make sure people are safe) that might be deterred if they weren’t allowed to use evidence observed in the process.  None of the exceptions are based on a policy of “we probably wouldn’t have probable cause to search in the first place.”

But that is precisely the policy offered by the Obama administration this week.  We kid you not.  Here’s associate deputy attorney general James A. Baker, testifying on why the administration doesn’t want to have to get a warrant to search the cloud:

In order to obtain a search warrant for a particular e-mail account, law enforcement has to establish probable cause to believe that evidence will be found in that particular account. In some cases, this link can be hard to establish.

And if they aren’t allowed to search in cases where they cannot establish probable cause in the first place?  The consequences would be dire, he says.

The government’s ability to access, review, analyze and act promptly upon the communications of criminals that we acquire lawfully, as well as data pertaining to such communications, is vital to our mission to protect the public from terrorists, spies, organized criminals, kidnappers and other malicious actors.

They’ve gotta be kidding.  This is about as outrageous a policy as we’ve come across.  Justifying it because “omigod, think of the horrible things that could happen if we had to comply with the law” is something we’d have little patience for if uttered by a sophomore in college.  Hearing it from the Justice Department is not amusing.

Fortunately, the at least one of the courts doesn’t seem to be in agreement with the administration on this one.  The 6th Circuit ruled a few months ago that a warrant is, indeed, required for a search of cloud-based emails.  Here’s hoping that others follow.

Of course, what would be better would be for Congress to amend the ECPA so people don’t have to get convicted based on illegally-seized evidence first, and incur the expense of a trial and a couple appeals, before the other circuits are able to weigh in.

Some of those who lost limbs as punishment for not killing their own families and joining Taylor's army.

We started yet another trial this week, and it’s looking like it will continue into the first week of April.  Not our longest trial ever, but fairly lengthy for a state case.  But at least it’ll be over before the trial of Raj Rajaratnam, which also began this week, and which is expected to last through the beginning of May.

But these are nothing compared to the trial of Charles Taylor, former head of Liberia.  This is the same guy who ran for election with the campaign slogan (not making this up): “He killed my ma / He killed my pa /But I will vote for him.”  Probably a thinly-veiled threat that those who didn’t vote for him would get the same treatment.

Taylor first came to prominence in 1980, when he took part in the coup led by Samuel Doe.  Whose government he soon ripped off in a massive embezzlement scheme.  He fled to the U.S., got picked up and thrown in prison, and made a daring prison escape before he could be extradited in 1985.  He high-tailed it to Libya and the protection of Muammar Gaddaffi, and went through some terrorist training camps.

With funding from Gaddaffi, he organized a rebellion against the Liberian government in 1989.  The civil war would rage for seven years, utterly destroying the country.  Slaughter, fear and lawlessness made Liberia the classic “failed state.”  There was no government, only destruction.  (A State Department official we knew at the time said it was no good trying to reach anyone in charge there.  ”The phone’s just going to ring and ring, because there’s probably bullets flying through the office and they’re hiding under their desks.”)  The word “horrifying” doesn’t begin to describe what was going on throughout the ’90s there.

In 1997, Liberians elected him president in the vain hopes that this would avoid any more civil war.  But within two years, it was raging again.

But none of this is what he got in trouble for.

Apparently, Liberia wasn’t exciting enough, so he got involved in the horrors over in Sierra Leone.   During his own civil war, Taylor took advantage of Sierra Leone’s instability to found a rebel group (funded with Sierra Leone diamonds, and manned with conscripted children) to launch a civil war in Sierra Leone.  Because the government there was so corrupt, it had no real resources, and there was pretty much no economy.  So they couldn’t really fight back.  Still, they wound up having their own brutal civil war throughout the 90s.  A large Nigerian-led UN force finally intervened and restored peace, finally disarming the rebels in 2004.

Meanwhile, the Special Court for Sierra Leone managed to file an indictment against Charles Taylor for war crimes and crimes against humanity, based on what he did in Sierra Leone.

He was indicted in 2003.

His trial just ended today.

-=-=-=-=-

Even if you take into account the fact that he hid out in Nigeria until finally being arraigned in 2006, and the fact that the trial proceedings themselves didn’t really begin until 2007, we’re still talking a four-year trial.  That’s a long time to hear a case.

And the trial isn’t really technically over, anyway.  Just the evidentiary part is over.  The judges are going to take the next several months before rendering their verdict.

This thing ain’t ever going to end.

-=-=-=-=-

Whether he’s guilty or not — and we haven’t seen the actual evidence that was admitted — this kind of delay does not serve justice.  If he’s innocent they can’t prove him guilty, then this excessively long process amounts to an unjust incarceration.  And if he’s guilty, then the process only serves to delay justice to the people of Sierra Leone, and the vast separation between the act and the punishment severely dilutes any purpose such punishment is expected to achieve.  (And it’s not like the European court is going to execute him — he’d just serve his time in a British prison.)

These are a couple of the policies underlying the U.S. guarantee to a speedy trial under the Sixth Amendment.  ”Justice delayed is justice denied” may be a worn-out phrase, but it’s no less true for being trite.  Nobody’s interests are served by an extended proceeding like this.  Forget the fact that many of the delays were caused by Taylor himself being a buffoon, boycotting the court, and the like.  The vast majority of the delay was systemic, and that’s just wrong.

The fact that the SCSL indicted him presumes that they had enough evidence to convict him at trial.  One does not indict a case without some certainty of victory in court (unless one is either a blithering idiot or a scoundrel).  There is little reason to suspect that the fine folks at the SCSL are either blithering idiots or scoundrels.  So one must presume they were ready to prosecute Taylor for war crimes back in 2003.  There is no reason on Earth why they couldn’t have presented their case promptly and thoroughly when the trial began in earnest back in 2007.  The prosecution’s case took two years.  Then there was a lengthy delay.  Then Taylor’s case lasted a full year.  His own testimony lasted half a year.

We’re sorry, but no witness needs six months to testify about anything.  No subject is so complex or voluminous that it takes six months to spell it out.  That’s just too long.

Taylor wrapped up his case in November.  Then nothing happened for a few months until closing arguments began in February.  Why anyone involved in this case needed three months to prepare closings, why they weren’t being prepared throughout the trial and ready to go a few days or a week later is astounding.

-=-=-=-=-

Well, as of today, both sides are finished.  There’s nothing left now but to await the judges’ verdict.  We’re sure they’ll get around to it one of these days.

We’ll admit to a guilty pleasure.  Sometimes we surf over to Avvo and check out the questions people are asking criminal lawyers here in NY, and the answers various lawyers are providing.  It can be cringe-worthy, but once in a while it can be instructive.

We cringe when people ask for actual legal advice.  We cringe harder when lawyers venture to offer it.  We cringe the most when someone basically admits to a crime in posing their question, for all the internet to see.

We like it, though, when someone is looking for basic information, and they’re asking about something we haven’t come across in our own practice.  That happens often enough to keep us surfing back at least once a week.  There’s always room to learn, even if we’re only learning that we’re ignorant of something.  (And there are certainly areas of criminal defense where our ignorance is complete.)

Many of the questions, however, are just wasting space by asking the same thing that’s been asked over and over again.  The place really needs to put up a FAQ section.  Stuff like no, New York law does not provide for the expungement of criminal records.  Yes, having sex with someone under 17 is against the law.  No, there is no such thing as expungement here.  Yes, you do have to go to court.  No, we still don’t do expungement.  Yes, it would be a good idea to get a lawyer.  You’re not getting your record expunged.  And other things like that.

And far too many of the answers are just as much of a waste of space.  When the answer is obviously “go get a lawyer, your question cannot be answered here,” some lawyers will go ahead and offer some fluff instead about what law seems to apply, or just make a sales pitch.  Sometimes, though, there’s nothing more you can say beyond “go get a lawyer.”

We don’t answer many questions ourselves.  It’s usually not worth our time, frankly, and nothing could induce us to give actual legal advice to someone based on an incomplete query over a public forum.  But now and then we’ll see a question that (1) seeks basic information, rather than legal advice, (2) has been sitting unanswered for a while, and (3) we actually can provide a useful response.  That’s becoming rarer and rarer these days, however.  Mostly because there are fewer and fewer questions remaining unanswered.  Which is a good thing, all in all.

One thing that really bugs the crap out of us, however, is how Avvo sells this whole question thing as a way to “get free, personalized legal advice from experienced attorneys.”  That’s just not right.  Experienced attorneys may certainly give free legal advice, but no experienced attorney is going to do so over a public website, based on the necessarily incomplete and possibly irrelevant set of facts included in an online question.  Avvo really needs to change that.

It is a useful place to get general information — what does this statute mean, what’s the procedure in that courthouse, what is this piece of paper.  That is a worthwhile service to offer.  But it’s not a useful place to ask “what’s going to happen to me,” or “what should I do now,” or “how can I accomplish this goal.”  Avvo is extremely poorly suited for such things.  Even if a lawyer were willing to offer such personalized legal advice online for free, there is no way to develop the facts required before such advice could be given.  There is no way to have a dialog with anyone.  The advice seeker posts his question, and that’s it.  The only information you have to go on is what little they thought important to include in their question.  There’s no way to ask for more information, no way to develop ideas and context, no way to get personal information about the advice-seeker that would be relevant to any advice, no way to knock ideas around, no way to figure out what the relevant facts really are and what the actual goal ought to be.

The only way it could possibly work is if the advice-seeker knew enough, and was savvy enough, to provide precisely every relevant fact required for the provision of competent advice.  And such an advice-seeker is probably smart enough and savvy enough to recognize that Avvo — or any website, for that matter — is a terrible place to seek it.