"I've got one word for you.  Just one word. 'Nylabone'"

 

My newest dog, Beckley, just graduated from beginner obedience school.

You like me, you really like me!  I got noticed in Kierkagaard Lives.  Thanks for the notice.

Yale students and others are outraged over the law review including an article by an author who used racial slurs (and apologized) when he was a student at Harvard. Post on Volokh Conspiracy.  David Bernstein compares that to the law review's decision to publishing an article by convicted murderer Mumia Abu-Jamal, which generated little student protest.

Most of the comments were the typical back and forth about who deserved the honor of being published in the Yale Law Journal.  The real question should have been whether the article was any good.  A person with serious moral failings might still be able to write an insightful law review article.  While there are many who argue about Mumia Abu Jamal's guilt, whether the article had any useful content is a separate issue.  The editors should judge the article, not the moral fitness of the person who wrote it.

 

 

The arrival of spring is official with the spotting of the first "red herring" at the Supreme Court.  Justice Souter played the fish card in Georgia v. Randolph, a case ruling that police officers must stop searching when a co-tennant objects to a search of his home.  Souter was referring to Chief Justice Roberts appeal to the danger domestic violence victims face when abusive spouses object to searches of their homes.

 

The phrase "red herring" may have come from a practice of dragging a red herring across a fox's track to lead dogs off the scent.  It shows up frequently in Supreme Court opinions. Scalia used it in Almendorez-Torres and Minnesota v. Carter.  Stevens used it in Castle Rock v. Gonzales. Thomas used it in Hunt v. Cromartie. Stevens used it in Ramdass v. Angelone . Breyer used it in Yarborough v. Carter.  The phrase turned up in 18 4th Circuit opinions.

 

The case is interesting to court-watchers and academics for what it reveals about the justices' thinking and behind the scenes court politics, but its practical impact on law enforcement will be marginal.  First it is rare for a person to refuse consent to search a home.  I have a hard time understanding why people who know there is contraband in their homes consent, but they do.  Police have the ability to enter a house to secure it while obtaining a warrant.  Police can enter to rescue someone who is threatened.  Police can time their approach to a home so that only the tenant who would consent to the search is present. Officers can remove a person once there is probable cause to arrest before they have a chance to object. Physical evidence is rarely critical or even very significant in domestic violence cases, so the domestic violence angle really is a red herring. Finally the lower court will not apply the precedent robustly, the opinion itself suggests all kinds of loopholes that will allow courts to distinguish it just about every time it is invoked.

 

(Print at top is by Susie Perring)

A great way to pay for all the surveillance equipment installed to watch public areas: sell the footage.  Who could have predicted that this would happen?  The government would never misuse information it has collected.  Well almost never.  Unless it was an isolated incident.  Or a rogue employee.  Or a computer error.  Or a hacker who breached the firewall.  Or we thought there was a possible link to terrorism.  Or organized crime. ...

 

N.C. Treasurer gets some flak for appearing in TV ad.

The Supreme Court greenlighted anticipatory search warrants in United States v. Grubbs. In that case undercover U.S. Postal Inspectors arranged to send a video of child pornography to Jeffrey Grubbs, who had ordered it. The inspectors then applied for a search warrant for his home that was only to be used in the event someone at the house accepted the package. Grubbs’ wife accepted the package and the inspectors searched the home and arrested Grubbs. It was not clear from the record exactly what else the warrant authorized the officers to search for other than the package, but they were in the house for about 30 minutes. Grubbs computer was searched, but the search of the computer was not an issue for the trial because the government did not bring additional charges based on what was in the computer. The government also stipulated that evidence from the computer would not be offered at trial, but reserved the right to introduce it at sentencing.

I wonder why the warrant had to be anticipatory at all. Based on Grubbs’ order for child porn wasn’t there probable cause to believe that child porn would be present in his home? At the point the officers applied for the warrant, there was already probable cause to arrest Grubbs for possessing or attempting to possess child porn. So the real object of the search was not actually the videotape, Postal Inspectors knew that was there because that is where they delivered it. Also it appears from the transcripts of the hearings that Grubbs knew exactly why the inspectors were there because he admitted that what they were looking for was in his garage. Was the search warrant a pretext to search for evidence of other offenses that Grubbs might have been involved in? If in the course of searching Grubbs computer government agents came across evidence of other crimes, that could be used against him.

In effect mailing the package to Grubbs may have effectively given the government the keys to Grubbs’ home. If the warrant authorized a search of the home for child porn (not just the videotape that the feds shipped) agents could have searched anywhere porn could be concealed, effectively anywhere, especially computers. Including Grubbs’ wife and children’s effects, since Grubbs might have had access to hide things there.

I think it is a strained reading of the 4th amendment to hold that anticipatory search warrants are unconstitutional. They make sense in the right circumstances.  But here the government created the probable cause and then used it as the basis of the right to search. Suppose agents had mailed a package of child porn to Grubbs without any notice of what was in it? In a sense there was probable cause to believe that contraband was in his home post-delivery, making the search constitutional even though it might be impossible to prove that Grubbs knowingly possessed it. Effectively a pretext search, since once the government has established some small hook on which to hang the search, it can essentially search anywhere.

Overhead in court a few years ago:

 

Judge:  I find him guilty and sentence him to 10 days.  Counsel, were you appointed?

 

Attorney: Yes your honor, I have 4 1/2 hours in the case.

 

Judge: 4 1/2 hours for a trespass case!  How can you spend that much time on a trespass case.  I'll set the attorney fee at $50.

 

Deciding how much time is reasonable to spend on a case is tough for the attorney.  In the trespass case above the client wanted to plead not guilty.  The attorney met with his client, checked the court file at the courthouse, went to check out the scene and talked to witnesses.  As thanks for the effort a judge who hasn't represented a client in 20 years tells him he spent too much time on the case.

 

The Charlotte Observer looked into the billing practices of court-appointed attorneys partly by comparing billing records for jail visits with jail records that would ordinarily record every visit with an inmate.  There were some discrepancies between the two.  State judges rarely require detailed billing records for court-appointed attorneys.  State judges have to approve the number of hours spent and the state then pays $65 per hour.  Federal courts usually require fairly detailed billing records and pay $90 per hour.

 

Some lawyers rarely interview witnesses in most cases unless the client clearly intends to plead not guilty.  Some lawyers visit their clients in jail often.  Others like me try to get the full story from the client up front and then only visit when there is a decision to be made.  Judges are not in a good position to determine what is a reasonable amount of time.  It always depends on the case and lawyer's approach.  Once in a DWI case, a client absolutely insisted that a prior DWI was not him, even though the conviction had his name and birth date.  Knowing that court records are sometimes incorrect, I trouped up the the county seat of a neighboring county and pulled the file.  In the file was my client's name, driver's license copied, and his wife's signature and copy of her driver's license made when she bailed him out of jail.  When I showed him that, he said "Oh yeah, I remember now."  Four hours of time I'll never get back, but how could I know that it wasn't his brother who gave a false name without going and seeing for myself?

 

The amount of hours billed and the fees collected by the attorneys in the story did make my eyes bulge.  I've probably never gotten more than $40,000 in court-appointed fees in a single year.  It is hard for me to imagine billing 60 hours per week, but I'm sure it can be done.

 

For me a more interesting story is that 21% of time billed by court appointed attorneys was spent waiting in court (.pdf file).  The average time spent on a case 4.55 hours with an average of 57 minutes per case waiting in court.  Overall for 2005 the State paid $9.8 million to court-appointed attorneys for waiting time.  So before attorney's get nickled and dimed over jail visits, making the court system more efficient would bring real savings.

A woman sues a hotel over 500 bed bug bites.

"They were standing on it, grabbing the boobs, and somebody was just taking pictures with a cell phone,"

 

"People were shoving their martini glasses in my face."

 

"We were sardined in."

 

"My whole calf is one big, nasty bruise."

 

The only thing that was surprising is that no one thought that an all-you-can-drink martini party in a musem was a good idea.  At least it wasn't tequila.

I have looked deep in my psyche,  I have discovered my inner WalMart and I am ashamed.  I have always had an aversion to WalMart.  I can't stand the stores with the sensory overload aimed at persuading us to purchase more than we need.  I can't stand the faux rah-rah associate enthusiasm that the commercials assure us exists.  I feel bad about the local businesses who have been unable to beat WalMart prices.  I believe that bouncing smiley face going around slashing prices is a fraud.  If it is true that lots of Wal-Mart employees have to rely Medicaid for health care, that is bad for society.

 

Though WalMart is unpleasant (I was going to say "bad" or "evil" but I think that takes it too far), it's growth to dominate the nation's economy was inevitable.  If Sam Walton had not started the WalMart concept, someone else would have done it eventually.  WalMart is a product of an American culture transfixed with cheap flat-screen TV's and shirts for $8.99 each.  I find it difficult to avoid shopping there.  Last year while camping in West Virginia, I made three trips to WalMart in a four-day period.  When I needed something it just seemed as though that was the one place I could find what I needed, whether it was food or tent seam sealer, in one place at the lowest price around.  So like the rest of America, I was feeding the beast.  It forced me to acknowledge that WalMart was not something Sam Walton foisted on America, WalMart was something we summoned.  Thomas Friedman made the case for this pretty persuasively in The Lexus and the Olive Tree.

 

I think the rest of the world sees America as a giant WalMart:  noisy, crass, crowded and full of people who have no health insurance.  They'd like to think that countries with buildings and institutions a thousand years old are above rooting through racks of $8.99 shirts.  But sooner or later you have to admit that being able to buy a set of margarita glasses for $5.77 is pretty irresistible.