The Criminal Lawyer

If you’ve been reading this blog for any length of time, you’ll know that we really like Scalia.  We really do.  We like the way he thinks, we like the way he writes, and we like that he’s not a phony.  His law clerks may moan and groan that he’s hard on them, but they’ve actually got it pretty easy, because he knows what he thinks and (more importantly) he knows why he thinks it.  He doesn’t need them to do the heavy lifting for him.

At the same time, we’ve had to take issue with some pretty boneheaded things he’s written or said.  In his attempts to discern what the authors of a given law were talking about, he often misses the underlying policy.  The job of a top jurist or legal scholar is to figure out what the underlying principle is that explains, not only the law as written, but also the jurisprudence and related laws that have flowed from it.  Do the deep thinking to figure out what value our society happens to have, which the authors of the laws and court opinions may not have had the insight to notice themselves, but which nevertheless explains why this particular area of law is the way it is.  Once that root principle is known, it is easy not only to understand what the framers were saying, but also what has been said since, and even predict what is going to be said next.

Take, for example, his interview just published in this month’s California Lawyer.  Near the beginning of the interview, he had the following exchange:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

He’s right about what a Constitution is for.  The Constitution is not there to detail particular laws, but instead to set the philosophical framework under which laws can be made, and to define and limit the roles of government.  (Most other countries in the world don’t seem to get this, and what they call “constitutions” are really nothing more than statutes.  There really is a difference.)

And he’s even right about the role of the courts in deciding things that are properly left to legislatures.  He cites abortion, for example, which — if it had been left up to the legislatures — would probably have been legal in most or all states by the end of the 1970s, and the country would have moved on.  Opponents would have had their say, they’d have been outvoted, and the legitimacy of the process would have given the law legitimacy, and they’d have moved on.  Instead, it was imposed by judicial fiat, in a horribly-reasoned opinion, with the result that it’s become a wedge issue for nearly forty years.  The Court created law — something courts are not supposed to do, something courts never do well, and something that only de-legitimizes the result.

But he’s wrong when he says the Constitution doesn’t prohibit discrimination on the basis of sex.  It does.  It really does.

Nobody thought that’s what the Fourteenth Amendment meant when it was passed.  Granted.  But that only means they didn’t have the insight to recognize the very principle they were upholding.

The relevant portion of (more…)

Sex offender registries aren’t necessarily a bad idea.

For whatever reason, there are certain people who get off on molesting little kids or raping people, and who are not likely to be rehabilitated by a stint behind bars.  It’s how their sex drive is wired. If they get caught and go to prison, they’re not any less likely to stop doing it when they get out.  That’s not how sex drives work.  So they often reoffend.  To minimize this, we put their names on a list, make them register with the local police department, impose restrictions on where they can live and what they can do.  They’re basically on extremely limited parole for the rest of their lives.

Their lives are basically over.  The stigma is the worst our society can dish out.  There’s a fat chance of pursuing any meaningful employment or making something useful of one’s life.  The best that can be said for such an existence is that it’s not prison.

Of course, with people who have demonstrated a clear and present danger, for whom there is a real and realistic concern that they will victimize another child if given half a chance… well, their interests don’t weigh so much any more.

But are these people really the ones who get registered?

Here in New York, a 17-year-old kid can wind up on the registry for having sex with his 16-year-old girlfriend.  A jerk can be registered for grabbing someone’s ass.  Stuff that has nothing to do with sex, like even the mildest forms of unlawful imprisonment, gets you marked a sex offender.  A harmless loser will find himself on the registry for calling up a call girl.  There really isn’t any rhyme or reason to it any more.

These are not things that have anything to do with the policy underlying sex offender registries.  There is zero concern that the people who commit such offenses pose a present threat of molesting kids or committing rape.  It’s an (more…)

The short answer is yes.  Yes, it is.

One of the lovely ironies of criminal defense is that most of the things we fight for are conservative values — individual liberties, constitutional rights, defending actual people from the insane might of the State — even though the defense attorneys themselves tend to be fairly liberal.

Needless to say, gun control is a wedge issue on which conservatives and liberals in this country tend to have strong, and strongly divergent, views.  Our own personal position on gun control is that it’s best to use two hands when aiming, take your time, and hold your breath while smoothly squeezing the trigger.  But only a fool would claim that public safety is not a legitimate governmental concern.  If anything, it is the number-one job of government at every level.  And only a fool would claim that guns do not affect public safety.  There is certainly some legitimate scope of governmental involvement in who gets to own a gun, and how you’re allowed to use it.

But New York State, and the City of New York, do it wrong.  And in light of the recent Second Amendment decisions by the U.S. Supreme Court, it is now clear that their restrictions are unconstitutional.

We’ve got a case pending where this has become the key issue.  As always, briefing it for the court really forced us to go deep into the competing policies and laws, the history and precedent that got us here.  It’s one of the things that we absolutely love about being a lawyer.  We’re not going to go into any of that here, however.  Instead, we’re just going to focus on the basics.

First of all, gun possession is presumptively illegal here.  There are only narrow exceptions where someone might get a license to own one.  Just applying for the license is prohibitively expensive and takes a very long time.  The licensing decision is purely at the discretion of a bureaucrat, who also has complete discretion to revoke the license later.  A statistically insignificant number of licenses actually get granted.  Of the few licenses that are granted, the vast majority are extremely limited in scope.  And even with a license, one’s gun must be kept disassembled or locked up, with any ammunition stored separately.  Except when  the weapon is actually in one’s grasp, it must be rendered inoperable.  There’s also a presumptive ban on ammunition.

These laws effectively ban gun possession for all but a few people and the police.  To date, New York’s courts have justified this by saying it’s only a privilege to bear arms, and not a right.  So the licensing scheme is perfectly within the state’s authority.  And any review of decisions made by licensing authorities is limited to an arbitrary-and-capricious, abuse-of-discretion analysis.  In other words, you can’t have a gun, and there’s nothing you can do about it.

At the end of the ’08 term, the Supremes issued their decision in (more…)

Last year, we posted an analysis of capital punishment as practiced in the U.S., and concluded that it ought to be scrapped.  Not for the usual “killing is wrong” or “what about the innocent” reasons, but because as practiced it fails to serve the purposes of punishment.  It doesn’t deter anything, rehabilitate anyone, and even removal only occurs after insane expense and delay.  The unbelievable delay and its ancillaries only undermine faith in justice, while imposing absurd societal costs, for no marginal benefit.

Now it seems that some states are thinking along the same lines.  Over at he WSJ Law Blog, Ashby Jones reports that the administration of capital punishment is being seen as not worth the extra expense.  37 states now are just spending too much money to deal with years and years of appeals (25-year average in California, something like 14 years nationwide) and the associated incarceration and litigation and facilities.  With budgetary concerns becoming ever more critical, the exorbitant costs are becoming a significant reason for legislatures to get rid of capital punishment.

Sounds good to us.

The Northern California Innocence Project at Santa Clara University School of Law has released a troubling study of prosecutorial misconduct in California.  The report, “Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009,” opens by pointing out that of course the majority of prosecutors behave ethically, but then it dives right into more than a hundred pages of statistics and analysis of a systemic and system-wide crisis, and the ineffectual attempts to deal with it.  (For those in a hurry, the 8-page executive summary is here.)

The period of this study coincides with our own career — we got our JD in ’97, and spent the next several years prosecuting before joining the side of the angels.  We were intrigued to see if the results of the California study meshed with our experiences in New York.  (The overwhelming majority of our colleagues at the Manhattan DA’s office were extremely ethical and took such things seriously, but we did have occasion to note and object to certain practices.  On the defense side, dealing with all kinds of state and federal offices, we’ve seen more sloppiness and lack of judgment than actual misconduct, though again there has been the occasional bad act.)

The study reviewed a sample of 4,000 cases during that 12-year span, where an appellate court was asked to make a finding of prosecutorial misconduct — the most in-depth such study anywhere, ever — and found 707 where a court decided there really had been misconduct.  As the summary puts it, that’s about a case a week.  When you consider the simple fact that only the rarest case of prosecutorial misconduct gets appealed — only about 3% of cases even go to trial — plus the fact that a great deal of such misconduct can never be discovered by the defense (such as Brady violations), the true quantity of misconduct must necessarily be a dramatic multiple of the study data.

Most of the prosecutors who commit misconduct, the study found, do so repeatedly.  Why?  Because they get away with it.  They almost never get caught.  And when they do get caught, there aren’t any personal repercussions.  Disciplinary action is so rare as to be practically unheard of.  And civil liability isn’t going to happen, because they have absolute immunity for their official conduct.

The study concludes that “the scope and persistence of the problem is alarming.  Reform is critical.”  It’s not a problem just of a few rogue prosecutors.  It’s a problem of the judges who don’t deal with it, a system that doesn’t deter it, offices that don’t stop it.  It’s the problem of the good prosecutors, whose authority and trust suffer by association.  It’s the problem of the innocent, who find themselves convicted time and again because the prosecutor sought a victory rather than justice.  It’s the problem of the guilty, who are denied their rights to due process and constitutional protections.  And it’s the problem of the criminal justice system, which relies entirely on prosecutors doing their job right in order for the system to function at all.

What reforms do they suggest?  Revised ethical rules, for one, to bring them more in line with the ABA’s model rules.  Some actual disciplinary action by the state bar, when the rules are broken.  Replacing absolute immunity with immunity only for official conduct that wasn’t misconduct.  Better reporting of misconduct findings, including the prosecutor’s name and the kind of violation.  Better ethical training for prosecutors, and internal procedures for preventing and dealing with misconduct.  It’s all pretty much common-sense stuff, already in practice in plenty of states.

It’s a shocking report.  The players in California’s criminal justice system need to get their act together, and fast.  This is a wakeup call — let’s hope they heard it.

On our main website, we wrote a brief primer on international law, mostly for our own enjoyment.  (The same reason why we write this blog, actually.)  To our constant amazement, it gets cited heavily around the internet, and has been on the syllabus of at least a couple law school classes.  So now we feel all obligated and stuff to keep it accurate and up to date.  At some point, we added a section on the subject of Lawfare.  Briefly put, Lawfare is the use of the law (yours or your opponent’s) as a tool of warfare, either to gain a military advantage, or to deny one to your adversary.  It’s too long to excerpt here, but you can read the section here, if you’re interested.

But if you’re really interested, an even better précis of Lawfare can be found in Gen. Mark Martins’ guest post this morning over at Lawfareblog.  His posts this week have been building up to this one, a great summary of the concept, with the depth of insight one would expect from the commander of the Rule of Law Field Force in Afghanistan.  Go read all of his posts, for sure, but this one is outstanding.

First, Gen. Martins sums up three competing definitions of the term.  ”Meaning A,” as he puts it, refers to the hijacking of Western sensibilities of justice and civil rights, by those who do not share such sensibilities, in order to undermine Western resistance.  ”Meaning B” is a wholly unrelated concept, an intellectual battle over the scope of national security law.  ”Meaning C” is a Western strategy that turns the cynical strategy of Meaning A on its head, an approach that applies the rule of law to all counterinsurgency tactics, thereby providing the legitimacy that is so important in a war of perceptions.

If he had stopped right there, this would have been a valuable enough contribution.  But he goes on to provide five clear observations about each of these three concepts, which makes it a must-read.  The first point is probably his best, that each definition contains a kind of hamartia or tragic flaw that could undermine it.  Meaning A cries “unfair,” which is sort of silly in the context of war, where ruses and propaganda are about as fair game as it gets, and without which few victories are ever achieved.  Meaning B, the contest of ideas alone, can bestow undeserved legitimacy and moral equivalence on the ideas of the enemy, which could lead to the very undermining of the principles one seeks to advance.  Meaning C, “by placing the law in service as a ‘tool’ of war, risks undermining the authority of law itself.”

Go over there and read the rest of it.  In the meantime, we need to go update our primer.

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UPDATE: Happy Thanksgiving!  Gen. Martins posted a followup this morning, “Lawfare: So Are We Waging It?” Written from Parwan, Afghanistan, it begins:

The week’s posts up until now—written on a Blackberry while we moved or found small spaces of time between engagements—position me finally to move from the definitional and philosophical matters I pondered yesterday in Khost to Jack’s September question: Do I consider counterinsurgency (COIN) in Afghanistan to be “lawfare.” The BLUF (“bottom line up front”), an expression used by each of the U.S. military services represented here in Parwan province and throughout our military around the world, is that yes, we are waging a form of affirmative lawfare.

I am confident enough in that to have provided the BLUF at the outset on Monday, even before trying to put into clear text and thus confirm my precise reasoning. The conclusion that we are indeed waging a form of lawfare is particularly true of the Rule of Law Field Force (ROLFF).  But there are important caveats, and I will draw illustrations from the preceding four days’ blogs to make the point.

The most obvious of the caveats is that we want no part of the perfidious lawfare described as Meaning A in my post of yesterday—except, that is, to combat those who wage it. Jack specifically distanced COIN operations in Afghanistan from this sense of lawfare, which is not only punishable under multiple articles of the Uniform Code of Military Justice, but is also regarded as dishonorable conduct within our uniformed ranks. Compliance with law is what legitimates the actions of our troops and separates their actions—sometimes necessarily violent and lethal—from what very bad people in criminal mobs do.

The post goes on to discuss the subject in more detail.  But we want to stop right there and shout out “he’s writing all this in between engagements in a goddamn war!”

Odds are, if you’re reading this, you’ve lived an admirable life.  You applied yourself in school, got a good job, and worked hard to be a valuable member of your community.  Through your own efforts, you’ve probably earned a position of respect and responsibility.  Maybe you run your own shop, or you’re a partner in a firm, or you’re a military officer.  Your ethics are beyond reproach.  You’re raising your kids to be loyal, kind and brave.  You, dear reader, are doing everything right.

And you, dear reader, can very easily find yourself in the defendant’s seat.  In the crosshairs of a federal or state prosecution.  Facing serious prison time.

For what?  For nothing, that’s what.  You yourself may have done nothing wrong, but our criminal law has devolved so far, so fast, that you can find yourself being prosecuted anyway.

The worst effects can be seen in federal law.  As the regulatory state has expanded, as the “nanny state” has expanded, as the role of the federal government has expanded, the nature of federal criminal law has changed dramatically.  Stuff that nobody in their right mind would consider “criminal” has nevertheless been made into a federal crime, not just by congressional statute, but by regulatory fiat.

Regulatory crimes are the worst, because agency regulations are never (more…)

In more than a dozen years of conducting and observing felony jury trials, at both the state and federal level, we’ve seen enough jury nullification to know it’s a real phenomenon, and not merely anecdotal.  We’ve seen jurors refuse to convict the most obviously guilty defendant, because they felt sorry for her, or because they didn’t want to put another young black man in prison, or because they had some random political or religious agenda.  We’ve seen jurors vote to convict, even though they had reasonable doubt, because it was obvious to them that the guy must have committed the crime, even if the evidence wasn’t really there.

In other words, jurors’ assessment of the evidence often has nothing to do with their actual vote on guilt or innocence.  They take it on themselves to act as a “conscience of the community,” and frustrate the whole point of their role.  (For more on how our jury system defeats justice, see our previous post here.)

The purpose of a trial jury is nothing more nor less than to decide the official version of the facts.  That’s all.  Society needs to make a decision about what to do in this case.

The decision is purely formulaic, in criminal law: if and only if we have facts A, B and C, then the defendant has committed crime X.  If fact B is missing, crime X did not happen.  It’s up to the jury to decide whether A, B and C really are what happened.  Whatever the jury decides, that is the official version of the facts.  The system can now take whatever action is appropriate under those facts, and both the parties and society can turn the page and get on with their lives.

[Truth — that’s “Truth” with a capital “T” — is not the goal.  It’s (more…)

Everyone knows that the indigent defense system in this country is broken.  The courts have mandated that every jurisdiction has to pay for indigent criminal defendants to get a lawyer.  It is required.  The vast majority of criminal defendants are indigent (or have no legitimate source of income, and so can pass for indigent).  So the taxpayer winds up paying for the lawyer for most criminal defendants.  This results public defender agencies that are understaffed, underpaid and overworked.  Or assigned counsel plans, where private attorneys are assigned to indigent defendants, and get paid a pittance.

Sadly, a lot of indigent defenders are either inexperienced or not very good at it.  Both kinds of indigent practice do attract fantastic lawyers who aren’t in it for the money, but they’re in the minority.  Indigent practice also attracts lawyers just starting out, who are willing to forgo a bigger paycheck for more experience.  And both kinds of practice attract lawyers for whom this is really their only way to make a living — for whatever reason, they don’t compete in the market for paying clients.

Also, indigent defenders tend to be insanely overworked.  Those who rely on assigned-counsel work for their pay often must take on an overload of cases just to make ends meet.  And those working full-time for a public defender’s outfit have an overload of cases whether they want one or not.  This has a predictable effect on the quality of their work, their ability to deal with (or recognize) non-routine cases, their resources to investigate and prepare, and pretty much everything else.

Furthermore, neither approach gives the defendants themselves any say in who gets assigned to represent them.  If they don’t get along, or there’s someone else who could have done a better job, then too bad.

There’s no economic pressure for indigent lawyers to do better.  If they do better or worse, they still get paid the same.  They’re still getting that next indigent client, whether they want one or not.

Finally, even with the abysmal pay, the cost to municipalities and states is still enormous.  There’s a lot of this kind of work to be done, and those nickels and dimes add up fast.

What to do about it?

Well, over at the Cato Institute (we’re big fans of Cato), professors Stephen J. Schulhofer and David Friedman have published a paper called “Reforming Indigent Defense: How Free Market Principles Can Help to Fix a Broken System.”  Go ahead and read it; we’ll wait.

For the TL;DR crowd, Profs. Schulhofer & Friedman propose that all present forms of indigent defense be abolished.  Get rid of public defenders and assigned counsel and all permutations thereof.  In their place, simply give defendants vouchers that they can use to pay the defense attorney of their choice.

Brilliant, no?  Defendants can choose whomever they wish to defend them.  Market forces will drive out the crappy lawyers currently impeding justice for the impoverished.  There will be no more of the crushing caseloads that practically guarantee malpractice.  Fewer innocents will be wrongly convicted, because they’ll have more experienced and talented representation, and there will be more resources and time available for rooting it out.  It’s a winner for everyone!

Well… about that… (more…)

One of our all-time favorite writers, P.J. O’Rourke, has an intriguing little article in World Affairs Journal today, called “Innocence Abroad: The Tea Party’s Search for Foreign Policy.”  Go ahead and check it out, we’ll wait.  As the title suggests, he finds a seeming contradiction between the movement for limited government and the necessity of a strong, centralized foreign policy.

We don’t see the contradiction, frankly.

Regardless of political stripe, Americans tend to believe that the role of government is to do those things we cannot effectively do for ourselves.  We differ on where to draw the line, but the basic idea is the same.  Of course, we have many different levels of government in this country — localities, counties, states, and the feds — so the question breaks down to what should be the role of each level of government.

The essential answer is that each level of government should be responsible for those functions that the level below it cannot carry out.

That means individuals are responsible for most of their own doings.  Government is not necessary, and so has no role there.  Ditto for stuff that can be taken care of by family and community.  Government first gets involved in (more…)

The 9th Circuit judicial conference wrapped up yesterday.  Hundreds of lawyers spent the last several days discussing this and that in Maui, and finished up with a speech and some Q&A from Justice Kennedy.  He had a lot of different things to say, most of which are unremarkable (such as the Court will be “different” somehow with Stevens gone and Kagan there).  But one thing he said made us sit up and pay attention.

At a panel discussion earlier in the week, the conferees had decided that most terrorism cases ought to be tried in civilian courts, and not in military tribunals.  In his speech, Kennedy said he agreed.  He said that the use of military tribunals was an “attack on the rule of law,” and that it has failed.  “Article III courts are quite capable of trying these terrorist cases.”

He completely missed the point.  The courts have nothing to do with most terrorism, acts of warfare launched from abroad.  But Kennedy’s been in the courts for so long, that that’s his whole perspective.  Not only does he think the courts should try individuals suspected of engaging in terrorist acts, and fighting against the U.S. military on behalf of the terrorists, but he thinks the contrary position is an attack on the rule of law.  Law, he fails to realize, doesn’t enter into it. 

Well, no, that’s not entirely correct.  Law enters into it insofar as our rule of law and sense of fair play become weapons used by enemies without such civilized ways.  And he fails to realize that his attitude is precisely that which our enemies rely on.  His comments play right into their hands.

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As we’ve mentioned before, most terrorism is an (more…)

On May 8, 2005, we were having a party.  It was our birthday, and our firstborn had just turned 1 a few days before, so it called for a big celebration with friends and family.  For us, it was a time of new beginnings.  But for Jerry Hobbs, May 8 2005 was the end.  He found his 8-year-old daughter and her 9-year-old friend brutally stabbed to death, in a park in Zion, Illinois.  He immediately called the police, who immediately made him their number-one suspect.  He’d just gotten out of jail in Texas, after all, so why investigate further?  He was subjected to a long, intense interrogation, and eventually made a statement that sounded like a confession.  He recanted the statement, saying it was coerced, but that didn’t matter, and he was charged with the murders.

Shortly after his interrogation, the police found DNA on the girls’ bodies that didn’t match Hobbs.  The DA discounted it, saying it must have been cross-contamination and couldn’t have been relevant to the crime.  But the DNA was in semen found on the girls’ bodies — and inside one girl’s vagina — and that’s not cross-contamination.  The DA insisted that it was still irrelevant, and that the semen must have been on the ground before the attack.  Seriously.  Hobbs remained in custody, charged with the double murder, for more than five years, though his case never went to trial.

He was in jail until a couple of hours ago, that is.  As it happens, that DNA on the girls’ bodies was extremely relevant.  Jorge Torrez, who had lived in Zion at the time, was arrested in Arlington, Virginia a few months back, and charged with the abduction and repeated rape of one woman as well as attacking another woman.  Virginia, unlike Illinois, takes DNA samples along with fingerprints when someone is arrested.  The DNA taken at Torrez’s arrest went into the database, and popped up as a match to the DNA found on the girls.  The Illinois prosecutors dithered for weeks, but this morning they finally released Hobbs from prison (though they refused to issue an apology, insisting they and the police had done everything right).  Still, an innocent man went free at last.

And if Torrez’s DNA had not been swabbed on arrest?  Hobbes’ coerced, false confession might well have resulted in yet another wrongful conviction.

This raises a lot of issues.  There’s the misuse of DNA evidence, and there’s the false confession, but those are topics for another time.  (If you’re interested in learning ways to defend such cases, you can check out our “Hope for Hopeless Cases” CLE series, particularly lectures IV and V.)

Today, however, our beef is with the civil liberties argument against taking DNA samples at arrest.

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The argument is that people who haven’t yet been convicted of a crime should not be compelled to give DNA samples.  It smacks of “Big Brother” and “Minority Report.”  The government might conceivably (more…)

“There has been a spate of particularly brutal and senseless attacks on the police,” according to Eugene O’Donnell, professor of police studies at John Jay College of Criminal Justice, and a former police officer and prosecutor. “It seems to me, [there is] an unprecedented level of disrespect and willingness to challenge police officers all over the place.”

What a telling quote.  (We’d have missed it, too, if Scott Greenfield hadn’t written about it today.  Apparently this was quoted on Fox, and we’ve never gotten around to actually watching or reading Fox News.  We get our news mostly from Fark and the WSJ.)  We have no data with which to verify the claim that police are getting attacked more often.  Nor are we aware of any studies showing an unprecedented level of disrespect for the police.  But like all good anecdotal claims, it seems right because it meshes with our own perception — regardless of whether our perception accurately reflects the truth.

In other words, it’s telling not because it is true, but because it feels true.

Perception is everything.  Reality has a way of catching up.  It’s true of almost every human endeavor except pure math and the most rigorous science.  Perception either is truth, or it becomes truth.

And the perception is that people have “an unprecedented level of disrespect” for the police.  Accurate or not, it’s fast becoming the truth.

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So how come?  That’s easy.  Disrespect must be earned.  People tend not to disrespect others until they’ve been given a reason to.  But once respect is lost, it is practically gone forever.  Reputation works that way.  And when people lose respect for an authority figure, the effect is even worse.  There’s a sense of betrayal.  A violation of trust.  When a trusted authority figure has betrayed that trust, the natural response is not mere disrespect, but hostility.

In recent weeks, there has been talk of more and more people getting arrested for videotaping the police.   It’s nothing new — we’ve been reading such stories for several years now, ever since cell phones started being kitted out with video cameras.  Still, it’s a topic of the day, and we’ve had a few conversations with people on both sides of the issue.  Leaving aside the whole wiretapping issue, however, (a typical explanation for such arrests in states without a one-party-consent rule, though it’s still bogus when the taping is in public and not remotely unlawful eavesdropping), it sure seems like cops are making these arrests because they’re afraid of being made to look bad.  Perception matters.

Are they afraid of misperception?  Sure.  “The camera doesn’t lie,” folks say.  But that’s demonstrably false.  Look at that famous video of Rodney King getting clubbed by a swarm of cops.  It sure looks like he’s getting hit for no good reason, doesn’t it?  But the video doesn’t show King going 80 mph through residential neighborhoods after a 100+ mph freeway chase, it doesn’t show King acting like he was flying on PCP when he got out of the car, it doesn’t show him fighting off multiple officers who tried to handcuff him.  The video actually shows the cops acting by the book, doing exactly what they were supposed to do — get him on the ground and keep him there.  He got hit with batons when he kept trying to get up, and the cops struck him to keep him on the ground.  The jury acquitted the cops, because they did it by the book.  But there was rioting and mayhem as a result, because the perception was different.

The camera does lie, because it doesn’t tell the whole story.  Cops suddenly rushing up on a guy for no apparent reason, frisking him, and arresting him — that looks bad if you didn’t know the guy had sold crack to an undercover a few minutes before.  But the camera didn’t catch that.  But guess what, that’s still the cops’ problem, and rightly so.  Eyewitnesses in the community didn’t see it, either, after all.  Is it any wonder why some communities have a strong perception that the cops keep grabbing people for no good reason?  Because that’s what they see.  Right or wrong, that’s the perception. 

And it’s the cops’ job to manage that perception.  Nobody else’s.

But the cops have to be afraid of legitimate perceptions, too.  The camera does happen to catch a whole lot of real police misconduct.  Cops abuse their power all the time.  They do lock people up without good reason.  They do hit, shoot, tase people without good reason.

This misconduct is nothing knew.  There have always been (more…)

Our jury system is supposed to maximize justice.  So how come our system only makes it harder for jurors to do the right thing?

Take this example: A judge in Florida today began reading some 100 pages of instructions to the jury in a case charging a lawyer with stealing $4 million from clients.  A hundred pages of instructions.  Which the jurors are expected to absorb through their ears.  Which, on appeal, the jurors will be presumed to have remembered perfectly, and to have applied with absolute precision.

Nobody really believes that jurors remember the details of their instructions, of course.  And nobody really believes that they apply those instructions to the letter.  It’s just a useful fiction.  Like so much of the law, what’s important is that the litany was spoken.  Say the right words, and we can all presume the right thing was done, and we can all move on with our lives.  

The system is more interested in finality than with the truth, is why.  The truth is nice, and something to be hoped for, but it isn’t necessary.  The whole point of a trial is not to arrive at the truth, but to arrive at an official version of the facts.  The judge can then apply the law to these official facts, and then everyone can close the book on that matter.  It’s a kind of justice, perhaps, but it’s not about truth, and it never has been.  The jury’s job is to consider the admissible evidence, and decide whether it makes out certain facts.

That’s really not a huge task.  Oh, it can be difficult to weigh evidence and separate fact from falsehood, but the task itself is very straightforward.  In a criminal case, for example, the jury has only to decide whether the defendant committed each of the elements of the crime.

Nevertheless, we sure make it hard for them to do even that.

The elements they are to consider, after all, are in the judge’s instructions.  And the judge won’t (more…)

Now that we’re all immigration lawyers, we figured we’d better take a gander at the complaint filed yesterday by the feds, seeking to strike down Arizona’s new immigration law.  The feds say Arizona’s law is preempted by federal law and policy, and so must be struck down under the Supremacy Clause of the U.S. Constitution, art. VI, cl. 2.  (You can read the complaint for yourself here.  The text of the law can be found here.) 

After reading the complaint in its entirety, we have to say that it’s mostly stupid. 

The law was hotly criticized by the Obama administration even before it was enacted back in April, so it’s no surprise that this action was filed.  We’re surprised it took this long to do it.  And we’re even more surprised, given how long it took, that the feds did such a shoddy job of it.

In broad strokes, Arizona wants to deter illegal aliens from sticking around in Arizona.  To that end, among other things, the law:

• Tells Arizona police they have to verify someone’s lawful presence if, during an otherwise lawful stop, they have reasonable suspicion that the person might be here unlawfully.  §11-1051(B) [referred to as Section 2 in the complaint]. 
• Amends existing law, permitting police to make a warrantless arrest if the officer has probable cause to believe that a misdemeanor or felony has occurred, to add that the police can make a warrantless arrest on probable cause to believe the suspect committed an offense for which he could be deported.  §11-1051(E) [in Section 2 of the bill, but perplexingly referred to as Section 6 in the complaint]. 
• says Arizona citizens can sue for money damages if any Arizona state or local official or agency “adopts or implements a policy” of not enforcing federal immigration laws to the extent permitted by federal law.  §11-1051(G) [Section 2]. 
• makes it a crime of trespassing to be present in Arizona in violation of federal law.  §13-1509(A) [Section 3]. 
• amends existing state law against smuggling human beings (§13-2319 [Section 4]) to permit the police to stop a car they reasonably suspect to be in violation of both a traffic law and the already-existing law against smuggling.  
• prohibits illegal aliens from seeking work in the state.  §13-2928(C) [Section 5].
• makes it illegal for “a person who is in violation of a criminal offense” to transport or harbor illegal aliens.  §13-2929(A) [Section 5].

The general argument the feds make is deliciously ironic: Requiring compliance with federal law would conflict with federal law.  At first glance, it seems like everyone at the DOJ who approved this complaint skipped Logic 101, and listened instead to John Cleese’s logic monologue on the Holy Grail album.  But this is not really the stupid bit. 

Their argument is more along the lines of (1) the feds get to determine policy of how and when the feds enforce their own laws; (2) Arizona isn’t telling the feds what to do, but it’s going to be enforcing the same laws more thoroughly; so (3) Arizona is messing with the feds’ policy.  This is one of the stupid bits, because nowhere does Arizona tell the feds what to do or how to do it.

The Complaint commits some intellectual dishonesty, however, to make it seem so anyway.  They repeatedly misquote the Arizona law to say a citizen can sue “any” official or agency for failing to enforce the immigration law.  They make it sound like Arizona citizens could sue federal officials for failing to enforce federal law.  But that’s not at all what is said.  The Arizona law only (more…)