Archive for the ‘Fractal Weirdness’ Category

Feeling Left Out

Thursday, May 12th, 2011

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.

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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.

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

Profiling Doesn’t Work? More Profiling!

Saturday, April 23rd, 2011

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?

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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 (more…)

Hey, feds, get off of my cloud

Friday, April 8th, 2011

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 (more…)

An Endless Trial

Friday, March 11th, 2011

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.

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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.

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Whether he’s guilty or not — and we haven’t seen the actual (more…)

Online Advice

Thursday, February 10th, 2011

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 (more…)

Playing Games with Client’s Lives

Friday, January 28th, 2011

 

Criminal law is about as serious as it gets.  Our clients’ liberty, reputations, freedoms, rights, opportunities, property — and even their lives — are at risk.  What we do affects not just our clients, but their children, their parents, the victims, and the community at large.  What we do is not a game.

So why do so many defense lawyers play games?  Cute little tactics, essentially dishonest, which never work.  All it seems to do is hurt their clients.  And yet they persist.  Boggles the mind.

Our job is to minimize the penalty our clients must suffer — preferably none whatsoever.  We do that by giving prosecutors new ways of looking at the situation, by challenging the legality of evidence, by showing juries that the evidence doesn’t mean what the government says it meant, and by skillful negotiation.

We do not accomplish that by, for example, routinely filing cross-grand-jury notice in NYC without having discussed with our clients whether they’d even consider testifying in the grand jury, doing so solely for the purpose of getting a prosecutor to call, or just to jam up the prosecutor to make their life difficult.  At the very least, it pisses off the prosecutor, who is less likely to give a decent offer as a result.  An offer might be taken off the table entirely, on the grounds that nobody who thinks they’re innocent should plead to anything.  The lawyer loses credibility, is seen as basically dishonest, and so it’s harder for him to negotiate a better deal or persuade the prosecution that they might have it wrong in this case.

We do not accomplish that by making cute little arguments in court that have no chance of success, and only serve to piss off the judge.  Once again, the lawyer loses credibility, comes to be seen as dishonest, and so it’s harder to win legal arguments that actually have merit down the road.  It only does the client a disservice.

We’re not going to give a laundry list of examples.  Every courthouse has its own idiosyncrasies.  But you get the point.  There’s nothing wrong with taking advantage of rules and procedures to the client’s best advantage, but nothing is gained if that’s done in a dishonest manner.  The client actually loses.

The better practice is to be (more…)

Registering the Wrong People

Monday, January 3rd, 2011

 

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…)

Right for the Wrong Reasons: Why terrorists and enemy combatants don’t belong in civilian criminal courts

Friday, December 17th, 2010

Last week, the House passed a bill that would prevent the federal government from prosecuting Guantanamo detainees in civilian courts (by cutting off the funds to do so).  The Senate is now considering it as part of the 1,900-page omnibus spending bill.  This is largely seen as a reaction to the acquittal of Ahmed Ghaliani — the first Guantanamo detainee to be tried in civilian court — of more than 280 charges stemming from the bombings of U.S. embassies in Africa.

The Obama administration is fighting against it, with AG Holder writing a (fairly lame, in our eyes) letter insisting that we absolutely must use civilian courts to deal with terrorists and captured combatants.  Essentially, his argument is that civilian courts are a tool that has worked before, so why deny that tool to the executive branch and make it fight the bad guys with one hand tied behind its back?

Ignore the ham-handed attempt to co-opt a common complaint about the left’s frequent insistence on soldiers doing actual fighting with one hand tied behind their backs, lest they rile someone’s sensibilities.  It’s a dumb argument.  Guantanamo detainees didn’t commit crimes within the territorial jurisdiction of the United States.  Their acts are acts of war, or of transnational combat that is more like war than anything else.

Congress is gearing up to do the right thing, but for the wrong reason.  The principle should not be “we can’t do this because we might lose in court” — that’s not even a principle.  It’s just a weakling’s worry.  The principle should be “we can’t do this because it’s wrong.”

First off, soldiers are (more…)

On Government

Tuesday, September 21st, 2010

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…)

Terrorism and the Courts: Kennedy Misses the Point

Friday, August 20th, 2010

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…)

The Holdout

Wednesday, August 18th, 2010

The news is full of reports today about the hung jury in the Blagojevich trial — they found the governor guilty of a single count of lying to federal agents something like five years ago, and hung 11-1 in favor of conviction on the remaining counts.  All kinds of pontificators are pontificating about why this happened.  Scott Turow, for example, says it’s because corporations have too much freedom to contribute to political campaigns, so bribery becomes perceived as the norm. 

That’s a bit of a stretch.  It’s hardly likely that the jurors were considering such things as the corrupting consequences of the extension of First Amendment protections to corporate campaign contributions.  Like most commentors, Turow seems to be slapping his own politics on top of a more prosaic observation — that to some, the governor’s actions just don’t seem criminal.  This observation, without all the other nonsense attached to it, was actually quite astute.  According to the jury foreman, the holdout appears to have thought Blagojevich’s actions were “just talk,” and nothing criminal.

From what we’ve seen in the newspapers, that’s not an insane perspective here.  It sure reads as if Blagojevich was just thinking out loud sometimes, or bouncing stupid ideas off people that never got carried out.  And the forman says the other jurors respected the holdout’s right to her position here.  It doesn’t seem like an unprincipled, irrational vote.

But other reports highlight a different take on the holdout’s position.  Another juror is on record saying that the holdout wanted more clear-cut evidence, tantamount to a videotape of a murder, before she’d ever have convicted.  And if, as is likely, the holdout was Jo Ann Chiakulas, then she had already made up her mind weeks beforehand that the governor was innocent.

Both takes ring true to us, and are not mutually exclusive.  It seems probable that the holdout had decided weeks ago, after the close of the prosecution’s case, that the government hadn’t given her that whatever-it-is she would have needed to vote to convict.  Jurors vote to acquit all the time, in even the most solid rock-crusher cases, and the most common reason given is that “there just wasn’t enough evidence,” or they “needed more.” 

Jurors can never articulate what “more” they would have needed.  That’s because this is humanspeak for (more…)

All the Wrong Reasons

Sunday, August 8th, 2010

 

So we’ve been hearing about this new blog, “UnemployedJD.com,” where some guy named Ethan is documenting his hunger strike “to bring awareness to the concerns of [his] classmates. Their primary concerns are inaccurate employment statistics, ineffective career counseling, and rising tuition costs. [His] intention is to have these concerns addressed by law school administrators.”

Really?  A hunger strike?  Because most law students aren’t guaranteed a high-paying job on graduation?  We figured it had to be a joke.  Some hipster irony, or an Onion article being taken seriously, or something like that.  But no, it turns out this kid is totally serious.  (Well, not totally.  He’s letting himself drink juice.)

Putting aside his sincerity, it’s a stupid tactic.  It’s not as if awareness needs to be raised — the news has been saturated for a couple of years now with stories of law firms cutting back, not hiring, and law schools continuing to pump out graduates without jobs.  And it’s not a problem that law school administrators can fix, much less one that they ought to fix.  It’s up to the students, not the school, to make sure they’ve built the necessary transcript and resume to get the job they want.  The school can provide the opportunity, but only the student can do the work.  It’s not the school’s fault if the student didn’t do what had to be done.

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Here’s the deal: High-paying entry-level law jobs are extremely rare.  They are offered to the top sliver of students from the top sliver of “national” law schools.  Top students from regional schools will be in the running for local firms, but not for firms in other parts of the country.  And if you’re not a top student from a top school, you can forget about getting a big-money job.  Period.

Of course, if you’re going into the law for the money, you don’t belong in the law.  There’s nothing wrong with making a good living as a lawyer, but if that is the reason for wanting to be lawyer you simply don’t belong in the profession.  People who are going into law school because it seems like a meal ticket are doing it for the wrong reasons.  Ditto for people who go to law school by default, because it seems like a safe placeholder until they figure out what they want to do with their lives or until the economy picks up again.  They’re wasting all that time and money on law school, for all the wrong reasons.

And if you’re going to a lesser law school, in order to make the big bucks when you get out, you’re not just wrongheaded but stupid.  The school you go to really does matter to what kind of job you get on graduation.  If you weren’t good enough to even get into a top school, what makes you think you can compete with those who not only got in, but outperformed everyone else who also got in?  To think that somehow you’re entitled to a high-paying job after graduating in the bottom of your class from a second- or third-tier school… that’s beyond unrealistic.

Apart from the money, nobody has ever guaranteed (more…)

The New York Times Gets It Wrong… Again

Tuesday, July 27th, 2010

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Over the weekend, the NYT printed an article calling the Supreme Court under C.J. Roberts the “most conservative in decades.”  “The court not only moved to the right,” the article said, “but also became the most conservative one in living memory, based on an analysis of four sets of political science data.”

We admit to reading the article with a fair amount of skepticism.  Whenever political science folks or sociologists or others of their ilk start talking about the Court being “conservative” or “liberal,” we get uncomfortable.  The words have very different meanings for politicos than they do for jurists.  A judicial conservative is not necessarily supportive of right-wing politics.  A jurist who is politically conservative may well be fairly liberal in his jurisprudence, especially if he’s using his opinions to further a political agenda. 

The article did nothing to assuage our discomfort.  As we feared, it conflated the concepts of political and judicial conservatism.  The article really focused on whether rulings were more or less likely to be favored by conservative political platforms. 

To be fair, the headline really is misleading.  The article itself says at least twice that “the recent shift to the right is modest.”  And it does point out not only that “the court’s decisions have hardly been uniformly conservative,” but also that “the court’s decisions are often closely aligned with or more liberal than public opinion.”

But the basis of any analysis is its presumptions.  And the presumptions applied here are beyond simplistic.  “In the database, votes favoring criminal defendants, unions, people claiming discrimination or violation of their civil rights are, for instance, said to be liberal.  Decisions striking down economic regulations and favoring prosecutors, employers and the government are said to be conservative.”  Forget being beyond simplistic, it’s downright misleading.

Notice that the focus is on who prevailed in the case, not why the Court sided with them.  Just because a criminal defendant won his appeal, for example, that does not mean the justices were being liberal when they sided with him.  The Melendez-Diaz case, after all, pretty clearly restrains the prosecution and favors defendants, by requiring chemists to testify at trial as to their analysis of alleged drugs.  Who wrote the majority opinion?  Scalia.  Hardly a liberal.  His reasoning?  Very conservative: this is little more than an application of existing 6th Amendment law under Crawford.  Scalia is one of the most conservative justices, and yet he’s also the Court’s biggest protector of 6th Amendment rights.

Similarly, just because a civil-rights claim prevails, that has nothing to do with whether the decision itself is particularly liberal.  And if the civil-rights claimant loses, that doesn’t mean the decision was conservative.

The analysis is flawed from the get-go, because it focuses on the wrong thing entirely.  The focus should not be on who won, but why they won.

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We also made a face when we read this bit: “The Roberts court is finding laws unconstitutional and reversing precedent — two measures of activism — no more often than earlier courts.  But the ideological direction of the court’s activism has undergone a marked change toward conservative results.”

No, no and no.

Judicial activism is not measured by finding laws unconstitutional.  Judicial activism is creating new law where none existed, or legislating from the bench — it is another way of saying the court is exceeding its authority.  When the law is different from how a judge thinks it ought to be, an activist judge changes the law.  Merely applying existing constitutional law, however, and finding that the legislature has passed a statute that happens to be unconstitutional — that is precisely what the courts are supposed to do in the first place.  It is the opposite of judicial activism.

Reversing precedent isn’t so much a measure of activism, either.  Some precedents ought to be reversed for perfectly good reasons, such as a change in societal circumstances that necessitated the precedent in the first place.  There is nothing activist about saying “applying the Constitution to fact set A resulted in rule X, but now we have fact set B and rule X doesn’t follow any more.”  What is activist is deciding not to reverse a no-longer-applicable precedent, in order to advance some policy interest.  (Grutter, anyone?)

Recently, there’s been an Orwellian movement on the left to redefine the phrase “judicial (more…)

“Unprecedented” Disrespect for Police is Well-Deserved

Friday, July 23rd, 2010

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“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…)

Another reason to hate NY’s “Hate Crimes” law

Tuesday, June 22nd, 2010

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“Hate” is not an element of New York’s “hate crime” law.  You don’t have to hate to commit a hate crime.  Instead, the law merely requires that you have “a belief or perception” regarding a person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation.  (The legislature could have saved a lot of bother by simply saying “a characteristic of a person over which that person has no control.”  That’s the policy they’re pursuing, even if they don’t realize it.)

There’s a list of eligible crimes at PL §485.05(3).  If you commit one of those crimes, and if you either chose your victim or committed the crime because of such “a belief or perception,” then you are guilty of a hate crime in New York, and now face harsher punishment.

This is a pretty vague statute.  You don’t need to have any specific belief or perception about someone, just “a” belief or perception.

The Queens DA’s office — already known more for its zeal than for its sense of justice — has now taken that vagueness to its logical extreme.  They’ve taken the reductio ad absurdum and made it office policy.

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The New York Times reports today that the Queens DA has been going after people who defraud old people, not because of any animus towards old people, but because of a belief about old people.  Namely, that old people are easy to defraud. 

Ordinarily, such frauds do not carry any mandatory jail time.  But if charged as a hate crime, they carry mandatory upstate prison time.  Can it be that the legislature really intended this outcome?

By the Queens DA’s logic, every scam targeted at the elderly is a hate crime, because the scam rests on a belief that old folks are easy to scam. 

By this same logic, any (more…)