Who Polices the Police?

SCOTUSblog does a great job of covering the Supreme Court Of The United States. In a recent article about the grants and denials of certiorari and various other orders, one case thrown in at the end caught my eye.

The case of Arizona v. Johnson (No. 07-1122) intrigues me. The issue is:

Whether, in the context of a vehicular stop for a minor traffic infraction, an officer may conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but had no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense.

HT: FourthAmendment.com

According to a passing reference in the New York Times,

A Tucson police officer testified that she had searched a passenger, Lemon M. Johnson, because he was wearing gang colors and seemed dangerous, not because he was suspected of having committed a crime.
The search yielded a gun and marijuana. An Arizona appeals court overturned Mr. Johnson’s conviction, saying the evidence against him should have been suppressed because the search was unconstitutional.

The SCOTUS jurisprudence is very complex for Fourth Amendment searches for occupants in a car. Due to the late hour, I cannot recall the exact names of the landmark cases (please feel free to help out in the comments section), but Fourth Amendment priciples are generally based on a balancing test. On one side is the individual's interest in "privacy" (really, his interest in not being molested/abused by the police) and on the other side sits the police officer's interest in self protection.

Certainly, as the gang shootout last night near the DNC's convention site demonstrates, the police have legitmate security concerns. (However, they get to carry guns and handcuff people too, so they are far from defenseless.)

Yet I cannot help but believe that our rights are very important. We do not want the police state that the United Kindom has become-- where big brother watches over your shoulder and it is a crime for old men to wear a hat lest they "hide their identities."

Lest you think I'm jumping too far: look at what the officer identified as the "basis to believe the passenger might be armed and presently dangerous." She said he was wearing gang colors. Guess what folks, gang colors encompass just about every general color possible. Indeed now police are saying that gang members no longer display their colors to avoid police detection. In other words, anyone wearing any color or "looking dangerous" (whatever that means) can be searched in a car they are riding in if the SCOTUS upholds the police officer's actions.

Based on the SCOTUS' tendancy to defer to the police, I suspect that the officer's actions will be upheld. Remember that it is police officers who serve as security detail for high-ranking judges (in the case of the SCOTUS, it is the Secret Service) and thus, in a very real way, the judges' lives depend on the police. That is why the judicary is so deferential to the police.

I do not fully know the facts of the case and I suspect that the suspect was a gangbanger scumbag, but rights need to be upheld for everyone, otherwise they apply to no one.

Climate Change Killed Elvis

A contributor to Discover Magazine online has an interesting theory on the tomato scare.

Apparently, "climate change" causes everything. Perhaps my foot is itching because of climate change. Maybe climate change caused my computer to freeze last night. I know, climate change is what killed Elvis!

The writer's claim that "genetically modified organisms" (GMO) are also partly to blame. Some background for those of you who are not biology/agri-science nerds: the US is one of the biggest producers of genetically modified food (i.e. plants, not animals) in the world. Through the use of genetic replacement therapy, we have been able to use plant viruses to change the DNA of a plant to be resistant to bugs, grow faster, or even choke out weeds. While the means we use to accomplish these goals (DNA modification) is new, the idea is not. Farmers once selectively bred their crops for certain characteristics.

Now, there is a global debate on the safety of the modified food. The environmentalists claim that it is "not natural" and therefore bad. (By the way, Salmonella is natural and bad, but an autoclave is unnatural and good.) Mostly fanned by the Europeans, who have an economic interest in stopping US food exports, many third world nations refuse US genetically modified food-- despite starving families.

Now, back to the claim that GMOs are responsible for the current tomato scare: the writer fails to show how exactly GMOs "exacerbate" the problem. He lays a claim, and then gives no evidence or argument to back it up. Indeed, he even admits that the outbreak could have "natural" causes not related to GMOs.

In the end, environmentalists hate two things: people (except themselves) and technology. They have stated consistently in their literature that people (overpopulation) are the cause of all their professed problems. Sure, they talk about investment in new technology for energy, but the reality is that they want fewer people and a return to an agrarian life with little in the way of technology. The most extreme example is the hippie commune.

We have returned to the lie of the nobility of savagery.

Lying Government

The Rocky Mountain News reported today on a series of sightings. Before you go all UFO on me, wait. It appears that Special Operations Command was running a series of training exercises in the Denver area.

What shocked me was the line:

"Military and police officials dismissed reports that the exercise was preparation for the Democratic National Convention coming to Denver in August."

OF COURSE this was a training exercise for the upcoming Democratic National Convention! For one week, Denver will be one of the biggest terrorist targets in the nation.

This is why I will boycott Denver during the DNC. Yes, I do have a mild fear that there could be an attack (this is the world we live in now). Also, though, I would be working next to the "Free Speech Zone." The chanters and protesters will be an annoyance. Some groups have promised violence. Who needs to deal with all of that just to go to work in an office with broken a/c?

Nah, I'll take a vacation instead.

Banana Car

Breitbart.com pointed me to this recent AP story.

I know that whenever I travel looking for bananas, I am always ready to pay those high grocery store prices. Perhaps they were intending to shop at 7-Eleven.

P.S.: At the going rate of ~$1.65 per pound (cited in the story), the men would be buying approximately 225,454 pounds of bananas. Assuming they are medium bananas, that would be approximately 676,364 bananas total.

Why I Do Law

A relative of mine is in the hospital. She was supposed to go in for a quick procedure and be out within twelve to forty-eight hours. She has now been in for nine days. The surgeon unnecessarily delayed in performing the procedure, despite recommendations from her primary care physician and the Emergency Department physician who recommended the procedure. That was an annoyance.

The true problem arose when the staff physical therapist failed to do her job. My relative had orders from the medical attending to receive physical therapy twice per day. In the nine days she has been in the hospital, the physical therapist has spent a grand total of twenty (yes, 20) minutes. As any medical professional will tell you, if a person does not get out of bed and use their muscles, then the muscles will begin to atrophy within a day.

My relative could walk when she went to the hospital. Now, she cannot walk. People are not supposed to get worse when they stay in a hospital.

When we expressed our concerns with the physical therapist, she began to talk over us and then proceeded to blame my relative for not “alerting her” when she failed to return. Yes, that is right, a bed-bound person recovering from surgery is supposed to chase a flighty physical therapist down the hallway.

Well, the “house manager” was eventually called. When he came, I put on my lawyer hat and represented my client. I was able to calmly and rationally explain our concerns about my relative’s treatment. I then discussed the physical therapist’s failure to hear our concerns (i.e. she was filibustering). Finally, I emphasized that it is not the responsibility of a bed-bound patient to chase someone down the hall to beg the therapist to do her job.

My relative was relieved that I stepped in to explain what was going on. The house manager promised a meeting and that someone else would take over my relative’s physical therapy.

Yesterday I was an advocate. Yesterday I made a difference. This is why I’m in law school.

Qwest's Bum

The federal prosecutor in the Joe Nacchio case has requested en banc review by the Tenth Circuit Court of Appeals. Nacchio was the former CEO of Qwest, which is based in Denver, Colorado. He was convicted of nineteen counts of insider trading. A three judge panel at the Tenth Circuit later reversed the conviction and remanded for a new trial because the trial court improperly barred the defense from calling a witness.

This case is not about the insider trading per se. What is really going on is that many of the USWest and Qwest workers lost their retirement investments in the company when the company's stock tanked. The employees blame Nacchio, and there is good evidence that he was focused on his well being rather than the company's well being. I happen to know several top level managers (i.e. those who achieved the highest level possible without kissing butt). They could see Nacchio was no good for the company or the employees.

Like many actions of criminal law against the wealthy and the powerful, the charges Nacchio faced were not what the government really wanted. Following this case, it is clear that the insider trading charges are weak. The prosecution was really trying to apply some retributivist justice. The employees suffered greatly for his mismanagement. The government wanted to make him pay somehow, and the insider trading charges were their best bet.

There is little reason to see why the Tenth Circuit should grant en banc review. (The Wikipedia article on en banc is here, if you need it.). The prosecution is trying everything it can to get the panel's decision overturned. The first trial was extremely expensive, and the second trial will be too. So, the prosecution must try every appeal to avoid the cost of the new trial and to make Nacchio pay for his bad behavior.

This case is about making those who lost their lifetime investments somehow whole by throwing the bum in jail. The problem is that the government is struggling to prove a weak case. Nacchio will probably walk.

Wikipedia

I have a little less than a week before my jobs start. I am doing what any newly minted 2L would do in this situation: sitting on my butt watching TV.

Among the plethora of vocational school commercials, ads for “male enhancement,” and pitches for new kitchen gadgets, I saw a personal injury attorney’s commercial. The attorney’s commercial featured dramatic music, stock photos of doctors and factories, and a dramatic voice. The voice said, “Have you or your loved one suffered from Mesothelioma?...” Many lawyers place such ads (Colorado features “The Strong Arm” and “The Bulldog”). What was unique about this ad was that its information on Mesothelioma was cited to Wikipedia.

How far have we sunk when Wikipedia serves as a source for a legal commercial? Do not get me wrong, I have used Wikipedia when I need quick information on a non-controversial topic. But I would never cite it for my livelihood. Even if the article was correct and well-written, I would still seek more reliable evidence.

Such legal commercials are often for class action lawsuits (the notice requirement for FRCivP. 23). If a lawyer already has a class representative and is putting a case together, surely he can afford the few extra dollars to get his medical expert to be his citation for his commercial.

Good Bye Summer, Hello Resume

What will I do when since I have two prestigious internships available for the summer?

On the one hand, the state supreme court justice has offered me an internship. Among other things, I will be researching long-term issues of law for the justice. More importantly, I will review the certiorari petitions to the court. It will be my job to find the interesting and pressing cases that need review. That is quite a bit of responsibility. It will also be great experience. How can a 1L hope to beat the state supreme court?

The solicitor general will have me researching long term issues that he thinks might come up in the coming term. Since I am looking at getting into appellate advocacy, this will be good experience to work with him.

Therefore, I really want both jobs. I had applied to the state supreme court justice first (in October), but I did not hear anything for months. Whenever I inquired I received the same response, “She has not decided yet.” I had assumed she had not chosen me for the interviewing round. Finally, I had the second opportunity come where I could work with the solicitor general. After I applied and was accepted by him, the justice called up. Now, I am left with a puzzle: who should I work for? I applied first to the justice, but I was accepted first by the solicitor general.

My decision thus far: try to see if I can have my cake and eat it too. I will try to work for both the justice and the solicitor general. I may not have a social life this summer, but I should come out with two awesome references and a great resume.

Hopefully, I can handle the pressures…

Traffic Ticket Quotas

Finals are now officially over. I am in the post-exam decompression. This includes being a little ill (my body finally has permission to succumb to illness), lots of sleep, and a curious headache.

Of course, my law school had various parties (official and unofficial) involving copious amounts of alcohol. Now, before you think my headache is a hangover: I do not get hangovers and I didn’t have very much to drink.

I needed to be temperate because I had an interview Friday with the state supreme court justice. I believe it went well. I kept them laughing, and it was not about my resume. That’s usually a good sign. I should be hearing about it in a week. I really want this internship, so I am hoping they think I am a “cool guy.”

Then, at a law school party yesterday, I was speaking with a State Patrol trooper. (Yes, law enforcement and lawyers mingle— sometimes). Someone (not me) said, “Yes, but how high is your traffic ticket quota?” The trooper replied with a joke about how she gets a toaster if she could write 100 tickets in a month. Her point, of course, is that there are no quotas for traffic citations.

However, the trooper then went on to betray her defense. She said that the supervisors will question her if she does not write any tickets on a ten hour shift. She framed the situation as, “They ask: what have you been doing for the last ten hours, then?”

The trooper gave an anecdote. One day, she was assigned to the Left Hand Canyon patrol. She drove five hundred miles and had only stopped one car. That is because the Canyon can be a fairly empty place, depending on the time of the year. When she came back to the station, her sergeant noticed she had issued only one citation. The sergeant asked, “What happened? Did you go hiking today instead of patrolling?” The Trooper then needed to explain that the Canyon was particularly empty that day and, as proof that she was on the job, she produced the mileage on her patrol car which had five hundred new miles on it.

This anecdote is precisely one that proves the pressure patrol officers feel in writing tickets. It is true that few police departments are brainless enough to give an exact numerical quota of traffic citations. Yet, if an officer or trooper or deputy faces a likely dress-down every time they have “too few” citations, then that is still pressure to give citations.

What are the chances, now, that this trooper will give you a warning the next time she stops you?

Criminal Law

I was running late. Where is room 206? This place is familiar—it is the law school after all. Yet, something is wrong. Where the hell is room 206? I’m late! The test started 20 minutes ago!
This was my first law school related nightmare. It was not a good a good sign for the day to come.

I just finished my Criminal Law exam. All I can say is that I certainly helped the curve. I am a giving person. I want to help my fellow students because I care. Therefore, I decided to go ahead and screw up the four-credit class’ exam so that I can raise the curve for everyone else.

The exam was that bad. I already knew that I was not cut out to be a prosecutor or a defense attorney. I know criminal law generally and I am pretty good at statutory interpretation. What I could not wrap my head around was the common law of criminal law. What’s worse, we did not spend much time in class discussing the rules but instead looked at focused on theory and international versions of criminal law.

The exam was multiple choice and two issue spotters. I was going to regulate my time, but I arrived at the 75 minute mark (my time limit for the first section) with 10 multiple choice questions left. I therefore faced a dilemma: should I finish the multiple-choice or go on to the essay? I choose to finish the multiple-choice. I calculated that I am a fairly good writer, especially under pressure. Further, the multiple-choice was likely to be the curve-determinate, so it needed to be finished. However, the consequence of that decision was that I was not able to fully cover all the issues in each issue spotter. Finally, the time constraints forced me write, “I see the felony-murder issue here, but I do not have time to fully explore the issue.” And, TIME!

I actually respect and appreciate my crim law professor. He is a great guy and one who really knows what he’s talking about. The problem is entirely on my end. I simply do not think very well in the criminal law framework.

Who knows? Maybe I did better than I thought I did. I can always hope for that…