Over the past couple of days, the news has been filled with stories about using microbes to identify suspects. Everyone has all kinds of bacteria all over their bodies, of course, and whenever you touch something you leave a smudge of your bacteria behind. On Monday, researchers at CU-Boulder published a study where they swabbed computer keyboards, tested the DNA of the bacteria they found, and saw that those bacteria’s DNA more closely matched the bacteria on the computer users’ skin than the bacteria on other people’s skin.

That’s all the study found. The bacteria on your keyboard have DNA that more closely matches the DNA in the bacteria on your fingers, than that of bacteria on other people’s fingers. Frankly, although that’s a nifty result and the scientists deserve to be praised for their work, it’s really a very modest finding. Not exactly earth-shaking.

But as usual, the media took this modest finding and blew it way out of proportion. The study’s authors insist that the project “is still in its preliminary stages.” The media make it sound like we’ll be seeing this stuff in court before we know it. The fact is that using microbial DNA to link a suspect to a crime scene is not going to be a reality any time soon, if ever.

For one thing, there is as yet no reason to conclude that your particular bacteria are as unique as your fingerprints or your personal DNA. Bacteria do not use sexual reproduction, after all, and so their DNA is less diverse than human DNA. The uniqueness of your bacteria is very much an open question.

We don’t even have a baseline of what bacteria are even normal to find on human bodies. A single person will have a huge variety of different microbial populations on different parts of his skin — the microbial mix on his fingertips is not the same as the mix on his nose or his toes. All the various types of bacteria people can have will need to be isolated, all the different DNA each kind of bacterium can have will need to be sequenced, all the various combinations will have to be analyzed, and a massive amount of comparisons will have to be made.

In other words, there will need to be many more studies, based on way more data, plus some pretty robust statistical analyses of large populations, before any scientist can reach the same conclusions as those you’ve been reading in the news. That’s going to take a very long time, even with the accelerating advances in DNA sequencing technology.

Still, it really is an intriguing idea. After all, a perpetrator may not leave behind any blood, sweat or tears. Fingerprints may not be obtainable from fabric or wiped surfaces. But he may still leave behind a smudge of skin oil, containing his own unique blend of bugs. If that’s so — and again that’s a big “if” — then this could be a useful forensic tool to help figure out whodunit.

Just don’t hold your breath.

And now for something completely frivolous.

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Galactic Empire Imperial Security Bureau
Office of Legal Counsel

MEMORANDUM TO CENTCOM ISB

Re: Interrogation Branch Treatment of Rebel Combatants

You have commanded this Office to examine the legal standards governing interrogations of terrorist “rebel” combatants in Imperial custody. You have specifically directed that we examine both current Imperial law and former Republic law that might apply.

An earlier draft of this memorandum, recommending the humane treatment of prisoners for the combined purposes of propaganda and more reliable intelligence, was rejected prior to submission. (See incident report, D. Vader, anoxic demise of Cpt. Jorad 2/5/03.)

It is the conclusion of this Office that the Emperor’s protections generously extended to his adoring subjects do not extend to rebel combatants, who have rejected those protections. This may at first seem contrary to the principle of general applicability, that the Emperor’s laws apply to all within the galaxy, whether they consent to such laws or not. However, that would be a misconstruction when applied to the interrogation of enemy combatants during an ongoing armed conflict. Detaining and interrogating enemy combatants is an important element of the Emperor’s authority to defend the Empire, its institutions and its subjects.

The Emperor enjoys complete discretion over the conduct of war, and so no law can infringe on his ultimate authority. We presume that none seek to provoke a confrontation with the Emperor over the scope of this authority. Therefore, the law must be construed in such a way as to avoid any such conflict, by determining a reasonable alternative interpretation consistent with the Emperor’s sole authority in wartime. The Emperor therefore has the authority to adopt the recommendations contained herein, and any others he deems appropriate.

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The situation in which these issues arise is unprecedented in galactic history. Several coordinated terrorist attacks took place in rapid succession three years ago, resulting in the destruction of a critical government edifice known as the Death Star. These attacks were brought about by a small but highly motivated organization of religious fundamentalists, purporting to serve a higher “force.” The attacks caused an unprecedented level of destruction, killing thousands of civilian workers, disrupting political and commercial activity for nearly seven days, and resulting in economic costs still being assessed. These attacks were merely the latest in a violent campaign that had been continuing for several years.

Under all standards of intergalactic law, the Death Star attack triggered the Empire’s right to use force in self defense. (See, e.g., Article 51 of the nonbinding Local Group Charter.) The galaxy is now in a state of war.

Leaders of the Rebellion remain at large, with access to active terrorist cells, suspected former “Jedi Knights,” and other resources. It has been reported that they are regrouping for another coordinated strike against an Imperial government edifice, as yet unspecified. (See interrogation minutes, XXXXCLASSIFIEDXXXX.)

Given the ongoing threat of Rebel terrorist attacks, the capture and interrogation of Rebel operatives is imperative to our Imperial security and defense. Because of the asymmetric nature of terrorist operations, information is perhaps the most critical weapon for defeating the Rebel Alliance. The Rebel Alliance is not a governmental entity, and has no fixed planetary system as its base of operations. It has no fixed, large-scale military or civilian infrastructure. It deploys personnel, materiel and finances covertly, and it attacks without warning using unconventional weapons and methods. (See appendix C, “The Force: Jedi and Sith Weaponry.”)

As the Death Star attack and subsequent events demonstrate, it seeks to launch terror attacks against purely civilian targets, and seeks to acquire weapons of mass destruction for such attacks. (See appendix B, news accounts of incents on Mimban, Hoth and Bespin.) Because of the secret nature of rebel operations, obtaining advance information about the identity of Alliance operatives and their plans may prove to be the only way to prevent direct attacks on Imperial systems. Interrogation of captured rebel operatives is often the only way to obtain such information.

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Current interrogation practices have not been particularly effective. Mind probes and truth sera are flawless when used properly, but the staggeringly high incidence of improper use and reporting (see analysis report of interrogation of L. Organa) have led to their abandonment in favor of more direct techniques. Unfortunately, due to the previous reliance on mind probe technologies, few are trained in effective personal interrogation. Current practices of haranguing, wheedling and cajoling are just as ineffective as the (equally common) blaster shot in the head.

It is recommended that Interrogation Branch institute practices involving actual physical discomfort and pain. Although these have until now been avoided by Imperial forces — and in fact are prohibited by the current Army and Fleet manuals — the use of torture to extract intelligence is necessary and lawful in order to prevent another tragedy like the Death Star.

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We understand that the word “torture” is loaded with negative connotations, but will leave the official formulation up to the Propaganda Branch. We could spend dozens of pages in tortuous reasoning to justify not calling it torture, but we believe that would be counterproductive. It would merely invite further criticism from enemies and undermine the credibility of this report.

“Torture” is defined as:

an act committed by an Imperial official with the intent to inflict severe, non-routine pain, either physical or mental, for the purpose of defeating another’s free will.

Clearly, that is precisely what is required here. Captured rebels are not divulging their compatriots’ whereabouts and plans, precisely because they choose not to. This free will must be overcome, if we are to gain intelligence critical to galactic security. Interrogation officers must therefore be trained in methods of inflicting pain so as to defeat the free will of their prisoners.

This Office proposes the construction of a special facility, a chamber in each Imperial Fleet flagship and in each major surface installation, specifically designed for the infliction of “torture.” This chamber, which this Office has begun referring to informally as the “Star” Chamber, would be equipped with various devices capable of inflicting pain without — and this is crucial — without killing the captive or otherwise rendering him incapable of divulging intelligence.

A research team was dispatched to the Hutt lord Rokko, widely reputed to be a master of torture. We are still awaiting the team’s return, now long overdue. In the meantime, we suggest that each “Star” Chamber be equipped with the following, and that officers be trained in their use. (We recommend that D. Vader be trained first, given his dismal interrogation record.)

1) Binders and other restraints, to ensure the prisoner’s immobility. Escape during interrogation is embarrassing enough. Escape during torture would defeat the whole purpose. There is anecdotal evidence that the current “one size fits all” binders do not, in fact, fit all. Special designs are probably required.

2) Nerve stimulators. Whether using electricity, fire, force fields or other sources of energy, an array of stimulators could be placed in a bed-like arrangement. The prisoner’s body could then be moved into contact with the bed, so that pain receptors on the body would be highly stimulated, creating the sensation of suffering without any actual physical harm. The stimulators could be applied to the entire body, or to specific body parts, at the discretion of the interrogator.

3) Sensory overload devices. Some species are acutely sensitive to particular senses, to the extent that a sensory overload can cause enough discomfort to override free will. Wookiees, for example, have ears particularly sensitive to high-pitched noises (though for some reason the whine of spacecraft engines and weaponry are actually soothing, more research is needed there).

4) “Shaming” staff. Some cultures in the galaxy are more averse to shame and disgrace than they are to physical pain. It is therefore recommended that each “Star” Chamber employ staff specially trained in the arts of finger wagging, insults, aspersions, slander, and sexual assault.

Other recommendations are welcome. It must be noted, however, that “waterboarding” is not to be used, because it is not torture.

Over at our favorite blawg Simple Justice, Scott Greenfield has an intriguing discussion about how clients and lawyers often have very different ideas about what makes a good lawyer. “Crappy lawyers,” it seems, will still have “happy clients” when the clients can’t tell the difference between “likeable” and “competent.” But “likeable vs. competent” is a false choice. Really, clients are looking for something else.

We have to admit to being perplexed at times by the things our clients are most grateful for. In court this morning, for example, a client was gushing with praise — not because we’d won an important victory that would get him back on the street, but because we’d bothered to go back to the cells to explain it all to him afterwards. For one thing, we’ve always figured it’s just common courtesy to make sure one’s client knows what’s going on, and it’s weird to be commended for mere manners. But more importantly, what mattered to this client was not the skill of his lawyer, but a feeling of personal attention. The victory he literally shrugged off, but he couldn’t stop talking about how much our discussion afterward meant to him. This happens routinely.

But most of our clients are more sophisticated. What they want in a lawyer is not someone who’ll hold their hand, but someone who can get the job done. They have complex cases, and they know what skills and experience to look for (and insist upon). But even among these kinds of clients, attorney expertise is often secondary to other concerns. Reputation, price, the knowledge that someone else is taking care of it for them, even the satisfaction of knowing you’ve retained the most expensive firm in town — all of these things can and do trump the mere ability to do the job better than the next guy.

But no matter what the client values most, it’s all really the same thing. Clients who love the incompetent clowns, just like the clients who value prestige or convenience, just like the clients who value experience and ability — there are all kinds of things clients say they’re looking for, but what they’re really looking for is someone they can trust.

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Trust really is the key, we think, to client feelings about their lawyers. Trust can be earned with proven ability, but it’s not the only way. Nor is it even the best way. After all, being good at your job does not equate to people knowing you’re good at it, or even knowing you exist.

People trust others for a lot of different reasons. But they all boil down to a shared personal connection. Think of all the people (not institutions) you trust, and count how many of them you trust for any other reason. We bet you counted zero. If there is trust, there is a personal connection. The reverse is also true: if there is a personal connection between the client and the lawyer, there is going to be trust.

So we have no difficulty believing that a truly incompetent lawyer, a real embarrassment to the profession, who nevertheless visits clients in jail and takes the time to listen to them and empathize with them, is going to be considered more trustworthy by clients than a skillful attorney who does none of those things.

It makes perfect sense, really. A lawyer who is truly sympathetic to his client is more likely to be trusted to do the right thing for the client. A lawyer who might do the job better, but remains a stranger, is just not going to be trusted the same way.

So maybe it’s not just good manners. It’s also good sense.

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It’s off-topic, but a phrase near the end of that post makes us feel the need to get back on our high horse: “the question seems to come down to whether it’s more important to get the client’s money [emphasis ours] by meeting the client’s likeability needs or to provide the client with great service.”

Now, in no way is Mr. Greenfield suggesting that the goal is to “get the client’s money.” [UPDATE: In a nice followup email, Mr. Greenfield put it very well this way: "My point was that the lawyer who is willing to do anything to be likable, at the expense of competence, is only trying to get the client's money."] But, unfortunately, there are quite a few lawyers out there who actually do think that their goal is to “get the client’s money.” And we have huge problems with that attitude. So we’re taking the opportunity to once again point out that this is not, and cannot be a lawyer’s goal.

We really have a problem with any lawyer whose purpose is profit. If you’re in the law for the purpose of making money, you shouldn’t be in the law. The law really is different. It is not a business. It is a profession.

That’s an important word. It gets used indiscriminately, but there are actually only three professions: the law, medicine, and the clergy. The professions are different from every other work in that the first and only concern is the good of the client/patient/parishioner. Profit does not and cannot enter into it. The instant that a professional has an interest in profit, he is no longer a professional, but a businessman. His interests are no longer those of his client, but are his own. We are trusted (aha, so it’s not off-topic after all!) to make life-changing decisions for our clients on their behalf, and do the right thing for them. We lawyers are not businessmen, our interests are not our own, we really are supposed to be different.

Don’t get us wrong, there is nothing wrong with charging money, even a lot of money, for one’s services. But using the law as a means for separating people from their money is simply unprofessional.

Monica Conyers arriving at court for sentencing

Former Detroit councilwoman Monica Conyers, the wife of U.S. Representative John Conyers, was sentenced today in federal court on her guilty plea to charges of bribery. The 45-year-old was given 37 months in prison, the top end of the agreed-upon Guidelines range.

Having read the sentencing minutes, we can’t help but think she might have done better if she’d kept her mouth shut. There are some things one does not say during one’s sentencing. She seems not to have gotten the memo, and it may be that others out there don’t know either. So here are some tips:

First, do not imply that the judge is acting improperly, before the judge has even sentenced you. Don’t even hint that the judge is taking things into account that he should not be. For example, it is not a good idea to say “the newspapers have put pressure on you to try to make an example out of me.” Judges do not like to be told they’re committing an impropriety. You do not want to piss off the person who is about to decide your fate.

Seriously, people need to be told this?

Second, do not say it’s unfair that you’re going to jail, when the other people committing crimes with you got less time. If you’ve pled to taking bribes (Conyers admitted taking multiple payments in return for awarding a contract), it doesn’t matter what happened to anybody else. The only consideration is what you did, and what you deserve. So saying “all of the people who were bribing and giving the money, they got zero months, eleven months, and now they want me to go to jail for five years?” — that’s not really going to help you out. All you’re doing is calling the judge unfair to his face. And it’s irrelevant at best.

That leads right to point 3: If you’ve just got done saying you should get the same time as your fellow conspirators, it’s not a good idea to then insist that you’re innocent and your plea was involuntary. Arguing in the alternative, at least in criminal cases, only means both alternatives are wrong. Pick a story and stick with it.

Point 3-A is that you don’t react to sentencing by demanding your plea back. A plea that was negotiated, where you testified under oath that you committed specific conduct, and where there was no actual duress… sorry, you’re not getting it back. Merely being pressured to take a plea doesn’t count. Even being under a colossal amount of pressure isn’t enough. Everyone is under pressure when they take a plea. You weighed the odds, and decided to cut your losses. You don’t get a do-over unless someone else totally overrode your free will, you sincerely did not want to take the plea, under any circumstances, but someone forced you to do it anyway. And you’d better have some real, solid proof of it.

And point 3-B is that you never, never, never, NEVER plead guilty if you are in fact innocent. Do you hear me? NEVER!

Given all the evidence in Conyers’ case, it seems unlikely that she pled guilty despite being actually innocent, and the judge definitely didn’t think so. He’d just finished a trial against one of her fellow conspirators where there was a lot of evidence tending to confirm her guilt here. So her feeble claims of involuntariness here probably only rubbed him the wrong way.

Fourth, if you want the court to go down from the Guidelines, give the judge a reason. Do not simply say “I think that given everything that exists in this case, and I’m not going to elaborate on any of them, I think the court should depart from the guideline range and I think that would be fair.”

You know what? There are a bunch of factors the judge is allowed to consider. Many of them are listed in 18 U.S.C. § 3553. Why not — we dunno — go through them and make arguments for the ones that actually apply? Just saying.

Fifth, if you want a downward departure for accepting responsibility, don’t proclaim your innocence at the last minute.

Sixth, if you want a downward departure for cooperating, you’re actually going to have to give the government something it can use. If all you’re going to tell the feds is stuff that is “conclusory and not firsthand evidence which can be used in a court proceeding,” you’re not going to get any benefit.

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Now there is plenty you can do at sentencing. You can challenge the government’s Guidelines calculations quite often. You can challenge the grounds and calculations for various enhancements. You can argue specific reasons for mitigation, downward departures, and even complete variance from the Guidelines if justice demands they not apply. There is a tremendous amount of room for good advocacy in a federal sentencing. We’ve succeeded in having the Guidelines completely disregarded, in getting judges to agree with us and not the government, so we know it happens.

You just gotta make sure the client gets the memo.

This is amazing. Sequencing an entire human genome is now going to be cheap and fast. We predict this will be a game-changing technology for the use of DNA technology.

Right now, DNA evidence is looked at much like fingerprint evidence. With fingerprints, law enforcement doesn’t compare every single ridge and whorl to see if there’s an exact match. Instead, particular locations are compared, to see if those locations are the same. And there’s a lot of subjective interpretation that is needed to make that call. DNA evidence is no different. The entire DNA sequence is not compared. Instead, a handful of locations are compared, to see if the DNA at those locations is the same. And there’s a lot of subjective interpretation that is then needed to make that judgment call. This can call DNA evidence into question, particularly when there are mixtures, degraded samples or equipment glitches that create room for errors of judgment.

If one were to compare the entire genome, however — all 3.3 billion base pairs of it — there would be much less room for interpretation and error.

The problem is that sequencing an entire genome has, to date, been prohibitively expensive. The first genome was a massive undertaking. As of 2009, only 7 people’s genomes had ever been sequenced. The time and expense needed to compare the genomes from a bit of evidence and from a single suspect would take forever and cost a huge amount of money. It’s just not practical.

But if the new technology announced in this WSJ video is for real, all that could change very soon.

If the technology is available to analyze and compare all 3.3 billion base pairs rapidly and cheaply, the current system of comparing 9 or 10 or 13 loci will be woefully inadequate. The current system relies on interpretations that can be incorrect, and statistics that can very easily be misinterpreted. A full-genome comparison knocks out most of the interpretation and guesswork, and eliminates the need for statistics.

Statistics won’t be necessary any more, because (with the exception of identical twins) no two people share the same genome. So leaving aside identical twins, the odds of someone else sharing your genome are nil.

Statistics are only used now because we only look at a few loci, not the whole genome, and all kinds of people share the same alleles at each of the various loci. Presuming the independence of the stats at each locus, the odds of a match at each locus get multiplied to reach truly astronomical odds against there being a random match. (Remember, though, that the stats don’t say anything about the odds against this being the match. And also remember that a test with even a 99.9% success rate will have false positives 0.1% of the time — and given the low odds of a correct positive match in the first place, the chances of a false positive actually occurring are amazingly high, in the realm of a coin toss.)

This can be a boon to innocents who otherwise might be wrongly charged based on bad DNA interpretations. It can also give society at large greater confidence that people convicted based on a full-genome match are rightly convicted.

Sure, we defense attorneys would lose some arguments for reasonable doubt in the wiggle room of current DNA analysis. But we’d gain arguments against those who would continue to use the present-day analysis when there is a more exact method available.

It hasn’t happened yet. But it’s coming soon. We can’t wait to see how this shakes out.