More on those Ominous Black Boxes

Reader Trafficnerd gave us a few links to pages about the HPD’s DEA-funded PlateScan Automatic License Plate Recognition (ALPR) systems.

None of them, oddly enough, mention the DEA funding that Officer Friendly told me about.

Here, though, is Houston HIDTA (High-Intensity Drug Trafficking Area task force) director Stan Furce’s “So, you want an LPR” article from the August issue of Law Officer Magazine.

A highlight:

The license data LPRs collect can be stored for an indeterminable
length of time, limited only by the server containing the information.
Some LPRs temporarily store information in the camera housing or
in a nearby server, but all will eventually download it into a larger
server, either automatically or manually. Investigators from all
disciplines can then query that server to learn if a certain VOI was in
a particular area at a specified time and, perhaps, who was driving
it. 

There goes any remaining illusion I might have had that when I’m driving along minding my own business nobody else is minding my business. The government is able to record where and when my license plate was spotted, and keep it in a database. For an indeterminable length of time.

I probably don’t have to point out to my prosecutorial readers this development’s utility to their mission to help the government exercise more power over the people. I’ll bet that HPD Homicide’s tech geek, B.C. McDaniel, is already all over it. For the defense, a subpoena for ALPR data might, if the defense is lucky, turn up a sighting that supports an alibi.

Coming soon to street corners near you: cameras that can do the same thing with your face that HPD’s ALPR can do with your license plate.

Abe Maslow, Jury Consultant

From Simple Justice:

People are scared to death of what will happen to them and their families, and they struggle to make sense of the mass confusion in Washington, Wall Street and the thousand pundit voices that tell a completely difference story every 30 seconds.

And so, in times of turmoil, we return to the work of Abraham Maslow, the Hierarchy of Needs.  When people are deeply concerned that they will be unable to put food on their table, heat their homes, keep their homes, drive to work (if they have a job), obtain medical treatment for their children, guess what they aren’t worried about: Justice.  You.  Your client.

It’s an excellent point, and one that bears repeating: the need for self-actualization is secondary to unmet needs for safety.

Isn’t that, after all, what the government is trying to capitalize on when it seeks to make people afraid? If the government succeeds in making jurors afraid, then the defense’s arguments based on love, esteem, or self-actualization are addressing only secondary psychological needs.

I don’t, however, agree entirely with Scott’s prescription:

If there is any possible way to avoid going to a trial now, do it.  Aside from some particularly quirky moments in history that had significant impacts on jurors (like the OJ Simpson murder acquittal, for example), I can’t think of a worse time to ask a jury to elevate the concern of justice, fairness, due process, above their personal concerns.

I don’t think “Justice” can be categorized, as Scott classifies it, as a self-actualization need, or indeed as any sort of need at all. Justice means something different to everyone. Anyone whose physiological needs are met might seek and feel strongly about justice. Or, more aptly, anyone might use the word “justice” to describe the conditions that he sees as satisfying his needs. To the person focused on safety, “justice” is security of body, of employment, of resources, and so forth. Look at how Lawrence Kohlberg’s six stages of ethical reasoning mesh with the four higher levels of Maslow’s hierarachy of needs.

When the government asks for “justice” it’s usually talking about safety. When a defense lawyer asks for “justice” she might be asking for fairness or due process or freedom — all of which are at first glance higher-order goals.

But when we talk about fairness and due process we can talk about security of morality (it would do violence to jurors’ sense of right and wrong to treat this man unfairly), and when we talk about freedom we can talk about security of everything else (because if you let the government take away this person’s freedom, your own freedom, and therefore the security of your family, property, employment, health, and resources is at risk).

Between the argument to jurors’ prioritized need and the argument on a higher (or lower) Maslovian level, the former has a distinct advantage. So lawyers need to recognize the spirit of the times, and present the case that appeals to jurors’ need for safety. Higher-order needs don’t matter at the moment.

Part of the zeitgeist is an intensifying distrust of institutions including government at all levels. Except in white-collar cases (it may be a good idea to get a continuance on that bank fraud trial. . . but then things are going to get a whole lot worse before they get better), this creates an advantage for the human being on trial. The people are scared and frustrated, and it’s not drug dealers or drunk drivers or murderers who have them scared; it’s the incompetent or avaricious businessmen and government officials (Spanish and Yiddish have words — pendejo and schmuck — describing a person who is both incompetent and unpleasant. Why doesn’t English?).

So, unless you’re representing one of those supervillains of the impending financial apocalypse, pull on your boots, recognize your jurors’ need for safety, get into court, and find a way to help your jurors fill that need. You may find that these are the best of times.

I am Highly Amused

A message from one of my Facebook friends, a fellow MOB trumpet player who is now a lawyer an attorney in Chicago:

Today is the second post by you about jail or court in a few weeks. If you have a serious issue and need help finding good counsel pls let me know.

Big Brother on Wheels

According to Officer Friendly, those are DEA-supplied license-plate reading cameras mounted to the trunk of the patrol car.

I don’t like it, but it’s good for business — my business — I suppose.

Of Berries, Durians, and Jean Valjean

While both a prosecutor and a defense lawyer will bend over backwards to help their friends, the fundamental character difference between a prosecutor and a defense lawyer is that the defense lawyer will bend over backwards to help yours.

This morning a prosecutor admitted reading my blog (welcome!) and protested that I generalize too much about prosecutors, and that not all of them are judgmental right-wing death-penalty-loving fans of government. Some of them, she said, are touchy-feely left-wing tree-hugging fans of government. Fair enough.

I generalize. All animals generalize. If a species had to taste a berry from every holly bush in order to form the general rule that holly berries are poisonous, it wouldn’t survive long. Humans are at the top of the food chain in part because we’re better at generalizing, and more conscious of our generalizations, than the rest of the animals. Without well-developed generalization skills we probably wouldn’t have made it through the ice age, much less to the moon.

When a prosecutor does his job, he’s trying to put someone else’s
friends in jail. When a defense lawyer does hers, she’s trying to keep
someone else’s friends out of jail. When I’m deciding who to ask to help out one of my friends, I don’t want to call people who might have to go against their natural inclinations to oblige. (On one such occasion, I called criminal defense lawyer Kevin Fine; Kevin drove into deep East Texas with me to help one of my friends out of a major jam. I believe that Kevin saved my friend’s life that day. Now Kevin is running for judge of the 177th District Court. That’s the kind of character I think we need more of on the bench.)

That we generalize doesn’t mean that we don’t recognize exceptions. For example, we might form a general rule that foods that smell of “pig-shit, turpentine and onions, garnished with a gym sock” are not fit for human consumption, but then note an exception for the durian, which has been so described but is reportedly very tasty — and is known in Southeast Asia as the “king of fruits”.

While the job of lawyer for the crown is a natural haven for a certain unpleasant type of fear-driven person with white-collar aspirations, it also attracts folks with no particular philosophical axe to grind — for example, those who were told that starting as a prosecutor was a good way to become a criminal defense lawyer (debatable), those who wanted a steady paycheck and benefits (Jean Valjean stole a loaf of bread to feed his family) but were averse to the soul-crushing work of a junior associate in a civil firm, and those who couldn’t think of anything better to do with their law degrees.

There are durians among prosecutors. I know of some of them. It’s possible likely that there are more than I know of. I’m probably missing out. But we animals generalize, and if I had to describe every exception to every generalization, I’d never get anything written.

So here’s the deal: we’ll take it as a given that if you’re a prosecutor, and you’re reading this, the generalizations don’t apply to you. Those that infuriate you most, however, are probably closest to the truth.

Biggest. Blank. Check. Ever!

Seven Hundred Billion Dollars and xx/oo cents.

I can’t understand why it’s better for the U.S. taxpayer to buy more than two-thirds of a trillion dollars of bad debt, than to fill in the hole that the banks dug for themselves, with the banks still at the bottom of it. It’s clearly above my pay grade, but maybe a reader who didn’t drop economics in college can explain it to me.

I don’t know high finance, but I do know accountability. And this bill includes none:

Sec. 8. Review.

Decisions by the Secretary pursuant to the authority of this Act are non-reviewable and committed to agency discretion, and may not be reviewed by any court of law or any administrative agency.

“What authority?”, you might well ask.

The Secretary is authorized to take such actions as the Secretary deems necessary to carry out the authorities in this Act. . . .

Where do I get one of those jobs where I have carte blanche to spend 700 billion dollars of someone else’s money “as I deem necessary” with absolutely no risk of prosecution?

Spring 1987

This is a picture from the American Embassy School of New Delhi, India’s class of 1987 Senior Skip Day. Facebook is awesome.

(Again, the guy on the far right is not me.)

Not Just a Little Bit Overboard.

26th Street Bar Association and Bad Court Thingy both wrote about an Illinois lawyer, who’s been suspended from the practice of law for 15 months for accepting $534 worth of nude dances as partial payment for $7,000 worth of legal fees in 2001 and 2002.

The Illinois Attorney Registration and Disciplinary Commission found that agreeing to give a current client credit against her legal bills in exchange for performing striptease dances for him (which the lawyer admitted) was “reprehensible in and of itself.”

If that were all this case was about, it’d make a good story (the story that you’ve read about); I’d be writing about the prudishness of the IARDC, how it was interfering with the client’s ability contract with counsel, and how there should be no legal distinction between plying one’s lawful trade in exchange for money that is then exchanged for legal services, and a barter transaction like this one, however imprudent.

I’d also probably be musing about whether the lawyer declared the value of the dances on his taxes.

But, as is often the case, there’s more to the story.

The 15-month suspension was not for the contractual arrangement, but rather for “repeatedly touch[ing] [the client] in a sexual manner without her consent, while he was representing her.” The punishment was based on another Illinois lawyer’s suspension in a 2004 case involving nonconsensual sexual touching by a lawyer. In fact, the Commission did not increase the lawyer’s punishment for his ill-advised fee arrangement, noting, “In performing dances for [the lawyer], [the client] was doing the same thing that she did routinely in her chosen occupation.” Or, as the client said, “If
it was dancing, I have no problem with dancing. I love dancing and I love -
that’s my job, but you took it a lot further than that . . . .”

For the unconventional commercial arrangement between the lawyer and his client that has the blawgosphere atwitter, fifteen months’ suspension would have been overkill. For the sexual assault that the Commission believed he had committed, it’s not.

Spring 1986

Join NACDL

When new criminal defense lawyers ask me about joining criminal defense lawyers’ associations, I advise them to join their local criminal defense lawyers’ associations (unless “local” means Austin, Texas) first, and then the National Association of Criminal Defense Lawyers. In Texas, at least, the state organization is a distant third.

The national association, NACDL, has a new president: Arkansas criminal defense lawyer and blawger John Wesley Hall (Law of Criminal Defense). John’s From the President column (PDF) in this month’s Champion (the organization’s magazine, one of the great benefits of NACDL membership) should be required reading. A snippet:

The government seeks to take our clients’ liberty, to house them in a cage or a concrete box, and sometimes even take their lives. It is more convenient for government to dispense with some procedural niceties, as it is wont to do, but a trial and cirminal justice were never meant to be convenient.

The criminal courts are where the Constitution is tested and protected by people like us — every day, in every case. That is why I became a criminal defense lawyer.

Download the column. Read it. Then get out a credit card and join NACDL. (Unless you’re a prosecutor, in which case you’ll have to quit your job enforcing those petty legislature-made laws so that you can join John, me and 10,000 other NACDL members in enforcing the Constitution.)