Archive for August, 2013

Is Ray Kelly a Complete Idiot?

Monday, August 19th, 2013

As we all know, Judge Scheindlin ruled that the NYPD’s stop-and-frisk program was unconstitutional. This should have come as no surprise.

Our Fourth Amendment law forbids a police officer from stopping you without first having reasonable suspicion to believe that you are up to no good. Police officers were stopping people without any reason to believe they might be up to anything. That this was unconstitutional should surprise nobody.

Once you’ve been stopped, Fourth Amendment law forbids a police officer from frisking you without first having reasonable suspicion to believe that you are armed and dangerous. Police officers were frisking people without any reason to believe they might be armed. That this was unconstitutional should surprise nobody.

It is also unconstitutional for the government to single people out for this kind of treatment based on their race. Police officers were stopping and frisking Black and Hispanic people almost exclusively. On purpose. That this was unconstitutional should surprise nobody.

These were not the random errors of wayward officers, but institutionalized behavior directed and commanded by the police department. It was a program. That the NYPD has been given an injunction to knock it off should surprise nobody.

And yet Police Commissioner Ray Kelly has done nothing but act shocked and offended ever since.

Kelly made the rounds of TV news shows yesterday, angrily asserting Judge Scheindlin doesn’t know what she’s talking about, and claiming that this ruling is going to make violent crime go up. He argued firmly that the stop-and-frisk program is just good policing. It works. It’s effective. And now the NYPD can’t do it any more. It works. It’s effective. And so they should be allowed to keep doing it.

He firmly believes that, just because something is effective, the police should be allowed to do it.

This is the same guy who’s gunning for Secretary of Homeland Security. You thought you were living in a cyberpunk dystopia now? Just you wait until someone like him is in charge.

-=-=-=-=-

Forget whether he’s even correct that this is an effective policing strategy. (I already told you why it isn’t.) Let’s just, for the sake of argument, presume that stop-and-frisk actually worked to keep crime down.

That doesn’t mean the government should be allowed to do it. Effective does not mean constitutional.

The government is a mighty thing, with overwhelming power and force at its disposal. But one of the most beautiful things about America is that our government is constrained. It cannot use its might against you unless the Constitution says it can. There are plenty of things it might like to do, but it isn’t allowed to. (People being people, government folks will try to bend the rules or skirt them or even ignore them. Hoping nobody will notice, hoping nobody will say anything, hoping they’ll get away with it. Very often even believing they’re doing nothing wrong, and believing that in fact they’re doing the right thing. Still, the fact remains that they’re no allowed to do it.)

Of course there is a tradeoff. There’s always a tradeoff. If we gave the government unlimited power to snoop into our homes and search our persons, they would certainly catch a lot more criminals. If we took away the exclusionary rule and rules of evidence, they’d convict more of them, too. Ignore innocents wrongly convicted — let’s presume that the police would be inhumanly perfect about all this. It is a certainty that, without that pesky Bill of Rights, more wrongdoers would get punished, and more severely.

But we have decided that a lot of things are more important than catching and punishing criminals. Privacy is more important. Free will is more important. Fair hearings are more important. We as a society are willing to accept a certain level of crime — even violent and horrific crime — as a consequence of protecting these rights.

And so the government is forbidden from violating those rights, no matter how effective such a violation might be.

Kelly does not get this.

This is not rocket science. This is not obscure ivory-tower theory. This is a basic core principle every rookie police officer should know. Is Ray Kelly a complete idiot, here?

-=-=-=-=-

Kelly defends targeting Blacks and Hispanics because statistically, they commit a disproportionate amount of the crime in this city. And statistically, they do. But that doesn’t justify stopping individuals just because they happen to have been born into those groups.

Just as “effective” does not mean “constitutional,” the statistics of a general population don’t give you reason to stop that particular individual over there. His being Black does not give you reasonable suspicion. You need reasonable suspicion to believe that this guy is up to something. Ours is a system of individual justice. You need a reason to suspect this particular person, not a belief about people like him in general.

Again, this is stuff you learn your first week at the Police Academy. It’s pretty basic.

If the statistics showed that people of Italian descent committed a disproportionate amount of bribery, or that Jewish people committed a disproportionate number of frauds, would that give the police reason to target Italian or Jewish people just because of their heritage? Of course not. It would be as absurd as it would be abhorrent.

And yet that’s essentially what Kelly’s saying about the racial discrimination.

Does he not see how blatantly wrong this is?

Is he a complete idiot?

-=-=-=-=-

You sort of have to hope he is.

Because if he’s not an idiot, then he knows exactly what he’s saying. He knows exactly why he’s wrong. Not just intellectually wrong, but morally wrong and contrary to everything this country stands for. And he’s still saying it. Hoping to convince you he’s right. Hoping you’ll let him continue to have those powers.

Pray he’s only an idiot.

Too Many Lawyers?

Monday, August 19th, 2013

Keith Lee posted an interesting chart on his blog today, comparing how fast the number of lawyers is growing to how fast the general population is growing. The U.S. population has grown at a slow and steady pace since 1945. The lawyer population, however, has grown at a much faster rate since the 70s.

People have been complaining about “too many lawyers” since at least the 70s, if not earlier. This data would seem to explain some of that feeling, as the lawyer population has grown faster than the general population.

But how accurate is that complaint? Are there too many lawyers?

Not too long ago, you could say “no” and back yourself up with a convincing supply-and-demand argument. The market demanded more legal services, so more lawyers were coming out of school to fill that demand. If there wasn’t demand for a lawyer’s services, he’d soon find something else to do.

It’s not as if lawyers create their own work, after all — personal injury lawyers don’t go around causing traffic accidents; transactional lawyers don’t draft contracts because they feel like it; criminal defense lawyers don’t make people go out and commit crimes. It’s the clients who want to sue each other, who have deals that need to be structured, who get in trouble and need help.

So if more and more lawyers were out there, it wasn’t the legal profession’s fault. It was because the rest of you were suing each other more often. It was because life, business and government were getting more complex, and you needed more help in navigating your affairs. It was your fault, not ours. Simple supply and demand.

There weren’t too many lawyers. There were exactly as many lawyers as you, the clients, wanted there to be.

Actually, the growth in lawsuits and wills and ordinary lawyering wasn’t really ballooning. Ordinary lawyering was keeping pace with the population, for the most part. What was really growing, starting around 1970, was the demand for corporate transactional work. That’s what created the big firms, what drove the big fees.

But this new corporate demand wasn’t a permanent shift in the demand curve. It was a bubble. Actually, it was a series of bubbles — the M&A bubble of the 70s, the real estate bubble of the 80s, the dot-com bubble of the 90s, another real estate bubble in the 00s — Wall Street percolated with all kinds of demand for more corporate work. Each bubble burst, as they tend to do. But so long as Wall Street kept percolating, there were always new bubbles coming along. Overall, it was constant. And it drove higher and higher fees, higher and higher salaries, secure and steady work. And that drove more and more people to go into the law, looking to get some of that steady work and high pay. (Which is the exact wrong reason to go into the law, but that’s what happened.)

But then, about six years ago, it stopped. The demand for the high-pay big-firm corporate work dropped significantly. The profession tried to ride it out, keeping all those high-pay lawyers around for when the work came back. But it didn’t. And a year later they realized they couldn’t keep paying all those high salaries without the same level of fees coming in. So they started shedding lawyers.

Those were good lawyers, of course. These firms had only hired the best of the best. Which was great if you weren’t a top student from a top school — with those guys competing for the Wall Street-driven jobs, there was more room for you on Main Street. But once those guys started competing for the Main Street work, there was less demand for graduates whose grades or schools weren’t stellar.

And so you saw an awful lot of students who had entered law school expecting an easy job market graduate with no job (but plenty of debt).

If you asked one of those new graduates if there were too many lawyers, you’d probably hear a resounding “YES!”

But that’s because there were more lawyers competing for fewer jobs. The actual number of lawyers working as lawyers was still exactly as many as you, the clients, were demanding.

The job market took that hit in 2008, and it hasn’t really changed much since then. But law school applications — which had been steadily falling up until then — now shot up, rising faster than before for the next couple of years. Presumably well-educated college-graduate adults saw law school as an attractive option, despite all the evidence to the contrary. A lot of these applicants looked on law school as a default — the economy sucked, so this was a great way to ride out the recession and have a good-paying, steady, upper-middle-class career on the other side. They didn’t want to be lawyers for the right reasons, but they wanted to go to law school.

Supply and demand being what they are, if more people wanted to pay good money to go to law school, there were going to be more seats for them to fill. And so the number of law students continued to rise. And so even more fresh graduates came out to face the same job market that had NOT been growing at the same pace.

If you ask any of these new graduates if there were too many lawyers, you’d probably hear a resounding “YES!”

Supply and demand being what they are, of course, people eventually stopped applying to law school in such numbers. They’ve resumed their downward path. In fact, applications are going down faster than ever, and are probably at their lowest point in thirty years. Meanwhile, those who couldn’t find work as lawyers have mostly found something else to do. So this oversupply of fresh graduates is in the process of shaking itself out.

But even with this momentary oversupply of fresh graduates, the number of lawyers actually working is still going to be however many you, the clients, demand. The answer to the question “are there too many lawyers” is still “no.”

-=-=-=-=-

Of course, what people are really complaining about when they say “too many lawyers” is that there are too many bad lawyers. Nobody complains about the good ones. But that’s a subject for another time.

-=-=-=-=-

 Since I got off on this from looking at some graphs, I thought I’d make some of my own. Look at these and ask yourself if there really are too many lawyers:

On the DEA’s Special Operations Division

Monday, August 5th, 2013

It should be clear by now that I’m no apologist for governmental overreach or law enforcement abuses. But after the news broke this morning about the DEA’s Special Operations Division, and everyone has been freaking out about yet another erosion of the Fourth Amendment, I feel like I ought to tone it down just a little bit. I have a little inside info here, because back in my days as a narcotics prosecutor, I dealt with them. (Don’t worry, I’m not going to divulge anything I shouldn’t.)

A lot of international drug trafficking takes place outside our borders, so the idea was to take advantage of intelligence data to make the drug war more effective. You just can’t use the intelligence  data in court. So SOD was formed as a way to make the information known, without compromising criminal investigations.

As reported, what the SOD does is get evidence from sources that can never see the light of day in court — usually from intelligence services here and abroad. Wiretaps conducted without regard to Title III because they’re not intended for criminal prosecution, top secret sources, and the like. If something comes up about some big drug trafficking — not at all uncommon to hear about in the intelligence world — then the SOD hears about it. Then they clue in law enforcement. It’s up to law enforcement to figure out how to gather the evidence legally. SOD’s involvement and its tips are rarely shared with prosecutors, and almost never with the defense or the courts.

So there’s a lot of understandable brouhaha that Obama’s eroding our privacy, the Fourth Amendment has been eroded even further, it’s unfair to the defense, this country’s going to hell in a handbasket, etc. People are concerned that law enforcement is “laundering” its evidence so it can use stuff that should have been inadmissible, and lying to everyone to cover it up.

First of all, this didn’t start on Obama’s watch. It got started under Clinton, back in ’94. And its existence has been fairly common knowledge in criminal law circles ever since. It’s even been reported on before.

Second of all, the whole “evidence laundering” thing isn’t quite accurate.

When I was dealing with them, back in the late ’90s and early ’00s, we in my office only half-jokingly called them “the dark side.” It was well understood that you couldn’t build a case off of their information. We’d never know where their information came from, for one thing. Without a source to put on the stand, the information couldn’t even be a brick in the wall of any case we wanted to construct.

And to be fair, the SOD folks themselves were very clear in their instructions: Their information was not to be used as evidence. It was only to help us figure out what we were looking at in an investigation, and let us know about other things we might want to be looking for. It was all along the lines of “how you gather your evidence is up to you, but you ought to know that this Carlos guy you’re looking at is part of a much larger organization, and his role is… and their shipment chain appears to have nodes here, here, and here… and your subject Gilberto over here is looking for a new local dealer.”

So what would you do? You’d realize Carlos wasn’t the top of the food chain, and start looking at your evidence in a different way, maybe change the focus of your investigation. And you’d pay more attention to traffic going to certain places. And you’d try to get an undercover introduced to Gilberto as his new dealer. You weren’t being spoon-fed evidence, but being clued in on where to look for it and what it might mean.

The Reuters article everyone’s citing quotes former DEA agent Finn Selander as saying “It’s just like laundering money — you work it backwards to make it clean,” in reference to a practice called “parallel construction.” He makes it sound like law enforcement obtained its trial evidence illegally, and then went back and tried to think up a way to make it look admissible. That would indeed be cause for much concern. And you’re kidding yourself if you don’t think that’s something police do on a daily basis.

But that’s not what “parallel construction” means. It means “dammit, I have this evidence that I cannot use. Is there another way to go get this evidence that is lawful? Why yes there is! Let me go do that now.”

So let’s say you know that a blue van with Florida plates XXX-XXXX will be going up I-95 this weekend, loaded with heroin in a variety of clever traps. But you can’t just pull it over because you can’t introduce that information in court for whatever reason. Instead, you follow it in a series of unmarked cars, until it makes a moving violation. Which is very likely to happen, no matter how careful the driver is (it’s practically impossible to travel very far without committing some moving violation or other). You now have a lawful basis to pull the van over. And a dog sniff doesn’t even count as a Fourth Amendment search, so out comes the convenient K-9. And tada! Instant lawful search and seizure, and the original reason why you were following him is not only unnecessary but irrelevant.

It doesn’t matter if the original reason you wanted to pull the van over came from the dark side or from an anonymous tip or from a hunch. It’s a legal stop, and the original reason doesn’t matter. This is a very common scenario in day-to-day law enforcement, and isn’t specific to the SOD.

Or think of this equally very common scenario: Someone inside an organization has given you probable cause to go up on a wire and to arrest a lot of people. But you don’t want that person’s identity to ever come out, or even raise any suspicion that there was ever an inside informant. So you get that guy to introduce an undercover. Who maybe introduces yet another undercover. And you only use information that the undercovers themselves develop to build your probable cause and build your case. The original informant’s identity need never be disclosed.

Those examples are parallel construction. It’s not about going back and laundering your evidence. It’s about going forward to gather it lawfully this time.

I’m not saying the dark side isn’t cause for concern. Law enforcement and intelligence are supposed to be two entirely different things. We have given the government amazing intelligence-gathering powers on the understanding that it won’t be used against our own citizens, and won’t be used for law enforcement. A very good argument can be made that the SOD program subverts that super-important limitation on government power.

But it’s harder to argue that it violates the Fourth Amendment or gets evidence in court that should have been inadmissible.

If you’re gonna complain about it, at least complain for the right reason.