{In keeping with the policies of Hit Coffee: this post is about judicial impropriety, the appearance of same, and its contributions to public loss of faith in the judiciary. Please keep your comments to those grounds. No license to slag upon republicans, democrats, gay, straight, lgbt, polka-dotted, or anyone else is warranted or implied.}

Over in Slate, an article by Dahlia Lithwick regarding why Vaughn Walker’s late-breaking announcement that he is gay should not be used as a reason to re-try the Prop 8 case on the grounds that Walker should have either (a) recused or (b) revealed his preferences pre-trial so that the question of recusal could at least have been brought up in court.

Meanwhile, the recent revelations that Clarence Thomas’s wife is/was a lobbyist with Tea Party organizations and other right wing groups making sizable sums per year, and that Clarence Thomas himself has direct links to the Citizens United group… who he happily helped rule, in a 5-4 decision, were entitled to spend unlimited money influencing elections in the US.

As a third point impugning both Thomas and Walker: Judicial Code of Conduct, Canon 2, adopted in the Federal courts as well as every State court system: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities.

The appearance of impropriety is a strong problem. Politicians are regularly brought down, forced to resign or failing to re-elect, on the strength of an “appearance” of impropriety even if the letter of the law is not broken. Public officials of unelected nature often die on the vine in similar situations, forced to resign lest the elected officials who appointed/hired them face the same fate. When it comes to judicial impropriety, appearances do far worse; they make the citizenry distrust the courts. On a day-to-day basis, this much resembles the Badged Highwaymen conundrum, whereby citizens feel they do not get a “fair shake” without at least spending money on lawyers… who happen to be friends of judges and lawyers and cops… who, in essence, become the “gatekeepers” to actual justice, whether the facts are on the side of the citizens or not. In a larger picture, impropriety usually comes to the fore through stings: the cases of Thomas J Maloney and Mark Ciavarella come easily to mind.

More subtle, however, is the corrupting influence – whether payments to a spouse, or preferential treatment at events, will prejudice a judge. The comings and goings of other governmental employees, or spouses, routinely draw calls of corruption. The habit of lawyers for the almost-universally-despised RIAA to come and go from government positions, where they make often rulings that benefit the RIAA at the expense of common sense, and then leave to go to cushy, overpaid jobs at RIAA firms, certainly violate the appearance of impropriety. So, too, do the comings and goings of Wall Street personnel from Federal financial jobs, whether legal or accounting in nature.

And so we get around to Clarence Thomas and Vaughn Walker. Had Clarence Thomas and Antonio Scalia recused from the Citizens United case, what would the outcome be? We don’t know for certain, but it’s hard to imagine that those who believe CU was wrongly decided don’t have thousands of dollars worth of justification for their suspicion of impropriety. Likewise, despite Ms. Lithwick’s arguments – carefully constructed though they are – about why Vaughn Walker shouldn’t have recused, two things bug me. The first is that this argument should have been able to be brought before the trial even began; instead, the courtroom got its own annoying little sideshow whereby the judge’s supporters shouted an annoying cacophany of “he’s not” and “it doesn’t matter anyways.” Given how “revolutionary” his opinion was, given the accusations even from the beginning of the trial that he was trying to tilt the playing field… the appearance of impropriety, of bias, is a strong thing. Almost any other federal judge could have written the opinion Vaughn Walker wrote, and not had the appearance of impropriety that is fueling the current round of litigation. For the best results, a trial needs to be as evenhanded as possible. In the case of the Prop 8 trial, it seems that one side felt the tables were being tilted going in. Give them a “reason” to believe it was tilted, and you’ll never shake their faith that the game was rigged again. For this reason, I submit that Vaughn Walker was the wrong man to handle the trial.

First, props to Missouri on this:

Modifications to the bill must be approved by the House before becoming law, but the Missouri Department of Transportation (MoDOT) has already begun increasing yellow signal timing with very positive results. In Arnold, the first city in the Show Me state to use automated ticketing machines, yellow timing was increased from 4.0 to 5.0 seconds at three intersections along Missouri Route 141 on February 24. Smaller changes were made on April 15, including a boost from 4.0 to 4.4 seconds at northbound 141 and US 61/67, a 4.0 to 4.5 second change at northbound US 61/67 at Rockport School, and from 4.0 to 4.7 seconds at southbound Vogel Road at Richardson Road (4.3 seconds at the northbound approach).

The impact of the longer yellow at red light camera monitored locations was felt immediately. In January, before any signal timing had been changed, American Traffic Solutions recorded 875 alleged violations in the city of Arnold. At the end of April, that figure fell 70 percent to just 266. Jefferson County Councilman Bob Boyer obtained the ATS statistics after learning that MoDOT had extended the yellow times.

“This recent bit of information goes further to prove the point that there are other safety measures that can be implemented if safety, not money, is the focus,” Boyer said.

Whenever you talk about lengthening yellow lights, there’s always somebody that says that people will simply adjust. And sometimes people will. But study after study has suggested that in the aggregate, longer yellow lights reduce lightrunning as well as accidents. They also reduce revenue, which is part of the problem. So congratulations to Missouri for getting this right.

On the other hand…

[I]n Missouri, it is common that municipal prosecutors will regularly “amend” moving traffic violations, which incur points against one’s driver’s license and potentially raise car insurance rates, to non-moving violations which do not incur said points and insurance rate hikes. Of course, the prosecutor only does so under two conditions:

1) The fine for the “amended” violation is exorbitant compared to the moving violation fine–and compared to the usual fine for the actual non-moving violation, and

2) The victim–er, ticketed person–must have hired legal representation for the prosecutor to negotiate the amended complaint. (Non-lawyers, don’t try representing yourself. Prosecutors won’t do it. I tried…once upon a time when I was younger, drove less carefully, less wise, didn’t inhale, etc.)

Now, one may counter that this behavior is not “extortion” because it is not illegal for the prosecutor to negotiate an amended charge as part of a plea bargain, nor is the prosecutor directly benefiting from the extorted fees. However, this activity is a plea bargain only in the most superficial sense, since a miniscule percentage of moving violations are ever actually contested with a not-guilty plea to begin with and individuals engaging in this ‘bargain’ have no intent to contest the moving violation. In a game theoretic, it’s almost never a credible threat so there is virtually no chance court time will be used or the alleged criminal will go unpunished. And while the prosecutor may not directly pocket the huge fines, those fines comprise a non-trivial portion of many municipalities’ revenues, which do flow back in part to the prosecutor’s budget.

This is not entirely unlike what they’re doing in Delosa, wherein you can avoid having your ticket turned over to your insurance company under certain circumstances. This makes people less likely to contest, but also helps them skirt state laws about how much revenue a town can get from tickets (they can “only” get a third of overall revenue from traffic enforcement). On the one hand, this is great because it helps you keep a clean driving record. On the other hand, it allows them to write up more tickets. In the case of Missouri, it sounds like an odd freebie for lawyers.

As I’ve mentioned before, I got out of a ticket for which I was dead guilty by hiring a lawyer once. If a lawyer knows what they’re doing, they can make it not worth their trouble. Trying to defend yourself, though, is pretty foolish.

I was somewhat reluctant to password protect my WiFi. Having leeched off neighbors’ WiFi after a couple of moves until I could get my own Internet up, I felt hypocritical not extending the same courtesy to others. But ultimately, the desire for security won out. Specifically my fear that someone might use my connection for something untoward. Basically, I didn’t want to end up like this guy:

Lying on his family room floor with assault weapons trained on him, shouts of “pedophile!” and “pornographer!” stinging like his fresh cuts and bruises, the Buffalo homeowner didn’t need long to figure out the reason for the early morning wake-up call from a swarm of federal agents.

That new wireless router. He’d gotten fed up trying to set a password. Someone must have used his Internet connection, he thought.

“We know who you are! You downloaded thousands of images at 11:30 last night,” the man’s lawyer, Barry Covert, recounted the agents saying. They referred to a screen name, “Doldrum.”

“No, I didn’t,” he insisted. “Somebody else could have but I didn’t do anything like that.”

“You’re a creep … just admit it,” they said.For two hours that March morning in Buffalo, agents tapped away at the homeowner’s desktop computer, eventually taking it with them, along with his and his wife’s iPads and iPhones.

Within three days, investigators determined the homeowner had been telling the truth: If someone was downloading child pornography through his wireless signal, it wasn’t him. About a week later, agents arrested a 25-year-old neighbor and charged him with distribution of child pornography. The case is pending in federal court.

I don’t know if such SWAT teams exist in Callie. But it’s a headache no matter how you look at it. Of course, in addition to getting the wrong guy, there’s the question of whether something like this is really “SWAT team” material:

The trend towards the militarization of the police, brought to us first by the drug war, is quite disturbing. I am all for arresting people who break the law, but military approaches to law enforcement turn citizens, who are presumed innocent (lest we forget) into presumed enemies of the state. This is not an appropriate approach, especially when dealing with something as tenuous as an IP address for evidence. Even if a given cybercrime did originate in a given location, there is no way to know which person in said household committed the crime. To bust through the door, toss people to the ground and then start sorting things out is not what I want out of law enforcement agencies in a democracy.

There are two main justifications for this sort of raid. The first is that they fear retaliation and have to gain control of the situation quickly. The second is the fear of destroying evidence – in the case of drugs, flushing them down the toilet. There is very little reason to believe that either is the case here. Child pornography consumption does not exactly equate with “armed and dangerous.” And while it’s possible that they can delete the stuff, it’s getting harder and harder to delete stuff that cannot be recovered.

Further, these raids are non-trivial events. They are, in a sense, a punishment in itself. If they fear that they are being assaulted by hooligans, they can get their gun and end up dead on the floor. Or they could survive and spend the rest of their lives in prison for accidentally killing a police officer (though, if they get a police officer, they’re probably dead in any event). If they have a dog, there’s not a bad chance that the dog will be killed in the process. Even leaving aside the psychological effects, you’re putting this person at great risk.

Sometimes, it may be necessary. But it’s pretty hard to argue that – as bad as we may consider child pornography to be – accused consumers are a particularly dangerous group.

It’s an oldish story, but I just recently ran across it:

According to the New Hampshire Union Leader (via Slashdot), police in the town of Weare charged a man with unlawful “interception of oral communications” – a felony* – because he used his phone during a traffic stop. According to police, the call was a crime because the driver ended up leaving a message, so they claim that the voice-mail service on the other end of the call recorded the officer’s communications without his consent.

That is, they charged him with wiretapping because the officer’s voice could be heard in the background of his phone call.

The story gets mildly less ridiculous when you read the background. Basically, the guy was leaving a meeting of libertarians and the phone call was to the voicemail of said libertarian group, which has been in trouble with the police before on similar(ly specious) “wiretapping” grounds. So, in a real sense, it may have been an end-run around the provisions preventing people from recording interactions with the police. If one believes that it is beyond the pale to record a police officer, this makes a degree of sense.

That’s a big “if”, of course. As mentioned before, the arguments against being able to record police encounters is dubious. Especially since they regularly record their interactions with us.

More broadly, though, I think that the entire notion of recording our experiences is questionable. I can see some reasons for it, like sex tapes or something where we want a strong expectation of privacy. Even then, I wonder if the videotaping itself should be illegal so much as any distribution of said recording. Sex tapes (unless released by mutual consent of all involved – and maybe even then) are distasteful, but one can think of scenarios where a “sex tape” is a defense against accusations of rape.

I’m not sure that I shouldn’t be able to have a camera and microphone in my classes at all time so that I could, if needed, go back and account for my time.

Delosa has pretty loose against wiretapping, at least as far as audio goes. Basically, as long as one participant in the conversation is aware that it’s being recorded, it is a legal recording. So you can’t stick a bug in someone’s apartment and listen from afar, but you can carry a wire on your person. That’s my understanding, anyway, and that strikes me as about right.

But even if you don’t agree with going that far, it’s a no-brainer when it comes to police. They are encouraged to record their interactions with you. The expectation of privacy is minimal or non-existent. The primary issue is who gets the recording. The notion that it should be the police, and only the police, is pretty suspect on its face.

* – The charge was later reduced to a misdemeanor.

Non-custodial parents have a right to see their children’s grades:

“The court concludes the following: (a) an order requiring a student to produce proof of college attendance, course credits and grades as a condition for ongoing child support and college contribution does not violate the student’s rights to privacy under FERPA; (b) both the student and the custodial parent each have a responsibility and obligation to make certain that the non-custodial parent is provided with ongoing proof of the student’s college enrollment, course credits and grades.”

This strikes me as something that should be relatively uncontroversial, though it does strike me as more complicated than the more traditional scenario. My parents didn’t have the right to see my grades, but they were free to stop paying for college if I did not provide them. The question lies, I would guess, in the child support arrangement that the father has with the kid. I know that in some cases, as with my childhood best friend Clint, the arrangement specified his father’s obligations towards paying for college. So it seems to me that as long as Clint was able to prove that he was attending, his father might look at the F’s and get angry, but there wouldn’t be a whole lot that he could do about it.

I’m not sure the degree to which that is true for this case. On the one hand, it seems that there must have been some concrete obligations for him to have to go to court to see the grades. On the other hand, the ruling suggests that if the father wanted to pull his support on the basis of his daughter’s grades (as opposed to attendance or enrollment), he would have the right to do so. Otherwise, why would she need to provide more than the enrollment paperwork? The only thing I can think of is so that he can go back to court and get out of the arrangement on the basis that the daughter is not attending school in good faith.

UPDATE: Brandon Berg pointed out that the actual decision was linked to on the page. I probably saw it, but whenever I see a link to the entire decision I assume that it’s going to be really long or in a language I do not understand. It’s actually pretty straightforward. The issue is, if the daughter is not taking and passing a full courseload, he doesn’t have to pay because she can effectively become emancipated and he can be off the hook. So what’s probably happening is that the daughter failed one or more of her courses and she and the mother don’t want to lose the financial support.

To the lawyers, is there a legal principle that says “Even though this situation was not come upon legitimately, it has been the case for so long that it has become de facto legitimate?”

An example… a surveyor made a mistake 100 years ago and a property line should be here and not there, but since everyone has been assuming for the last 100 years that the property line is there, the property line needs to be there?

Or it turns out that someone got something (in good faith) that it turned out they were not eligible for, but they’ve had it for a long period of time and therefore the person who theoretically should have gotten it can’t just come and take it?

I’m assuming that there is no outright fraud or that the fraud was not committed by the benefited party.

Update: Maybe a better example of what I am talking about. Several years ago, a contractor employee at Microsoft who got cancer sued Microsoft for the benefits that he was not eligible for because he was a contractor. The courts ruled that even though the employment documentation said that he was a contractor, he had been acting as a de facto regular employee and therefore was due benefits.

(I realize that “de facto” may be the closest I am going to come to what I am talking about. I was just wondering if there was something more specific.)

Slate is running a series this week on cases where the justice system got it wrong; somewhat spurred by the Illinois legislation abolishing the death penalty, partly just a good conversation.

The author, Brandon L. Garrett, is a bit pimping his new book but is also providing a good look at two of the most widely believed – but at the same time not entirely reliable – types of evidence on which many criminal cases rely. The first is eyewitness accounts and identification, the second is the confession of guilt.

Now that we know—with the benefit of the DNA tests—that Sterling is innocent, one wonders how an innocent man could have guessed at incredibly specific crime scene details? Sterling later explained it this way: “They just wore me down.” “I was just so tired.” “It’s like, ‘Come on, guys, I’m tired—what do you want me to do, just confess to it?””

In a pair of videos I link to very often, there’s a great answer to how someone “knows unreleased details” – the cops slip them to the accused in one form or another, or lead the accused into guessing until they have them “guessing right” on tape.

More interestingly to me, however – Garrett finally comes up with some hard numbers. I’ve chided the Innocence Project before about this, because they make a habit of releasing only their “number of innocent people freed” number, rather than giving us the chance to see the total number of cases they’ve examined. Will has said – and I agree – that even this may not be an exact figure, since IP only takes cases “likely to exonerate” on their early examination before proceeding all the way down the line, but it at least would give us something to work with.

Garrett, however, gives us a gem.

In 16 percent of the first 250 DNA exonerations, or 40 of the 250 cases I studied for my book, Convicting the Innocent, innocent defendants confessed to crimes they did not commit. (Additional DNA exonerees did not deliver confessions in custody, but they made incriminating statements or pleaded guilty to crimes they did not commit).

The false confessions pose a puzzle. All but two of the 40 DNA exonerees who falsely confessed were said to have confessed in detail.

Now, this is not perfect. His study is only on those cases that are proven false convictions. But we at least have a hard number here – 250 cases of proven innocent, 40 cases of false confession, 38 of which are said to be an “in depth” confession. And every one proven innocent almost-definitively by DNA evidence. This leads to at least a reasonable suspicion that confessions in districts across the nation are contaminated or even coerced by the cops – perhaps by cops who don’t know what they are doing, or perhaps by the type of behavior we commonly associate with not-so-honest cops who start and stop the recording on TV shows, only recording the parts of the interview they want to be available in court.

The Huffington Post singles out six states that are the worst about software piracy:

According to a new report released by anti-piracy organization Business Software Alliance, only six states were responsible for nearly half of all software piracy incidents reported in the United States in 2010. {…}

Which states were the biggest offenders?

BSA pointed a finger at California, Texas, Florida, New York, Illinois and Michigan. As much as 49.3 percent of unlicensed software is believed to have originated in these states.

Nearly fifty percent. That sounds shocking until you look at the states. With the exception of Michigan, what do the other five have in common? In fact, they’re the five largest states in the country (Michigan is 8th). And if you add up the populations of those states, you get 40% of the country. They’re also the states with the largest economies. So it’s not exactly surprising that they would have 20% outsized share of software piracy.

A while back I wrote a hypothetical about an employee being fired for asserting his fifth amendment rights:

After the police do a search of his {Jerry Gomez’s} office at W&S {his employer}, his boss and a corporate VP call Gomez into a meeting. Gomez assures the firm that he did not commit any crime and says that he is perfectly willing to take a polygraph to that effect provided that is the only question asked (the concern being that the police could subpoena the results and find out more than he wants to tell them). Likewise, beyond assuring them of his innocence, he will not explain any of the circumstances surrounding his relationship with Toomey for fear that they will be subpoenaed. The firm finds this unacceptable and they issue Gomez an ultimatum: fully cooperate with the authorities or you’re fired. Gomez refuses to cooperate and is fired.

Meanwhile, out of Britain:

A man convicted of murder has lost his employment tribunal case against Royal Mail which he claimed had breached his human rights when it sacked him.

Roger Kearney, 57, was convicted in June last year at Winchester Crown Court of stabbing his married lover Paula Poolton, 40.

But his employers, Royal Mail, sacked him from his job as a van driver in January 2010 because they said he had committed gross misconduct.

But he claimed he had been sacked prematurely because he was not found guilty of the offence until June.

Different circumstances, obviously, one reminded me of the other. Speaking on the subject, a guy named Chris Hoey remembers an old case in the US that had a different result:

In a case I briefed and argued on behalf of the NLRB while serving it its Enforcement Division of its General Counsel’s Office, one of the individuals found to have been fired for his union activities later confessed to having murdered his mother. The crime had taken place before his activity, in fact he was on the lam while he became a union protagonist. The NLRB ordered he be paid back pay from the day of his discharge up until the date of his conviction, a decision upheld by the 6th Circuit in 1959. I don’t have the cite at hand, but the employer was Keco Industries, and it only took the court about three weeks following oral argument to decide in the Board’s favor.

I assume that Hoey is referring to this case, though I can’t find any details on it other than the ruling.

Bloomberg has an interesting article on the antics that life insurance companies use to deny claims:

Jane Pierce spent nine years struggling alongside her husband, Todd, as he fought cancer in his sinus cavity. The treatments were working. Then, in July 2009, Todd died in a fiery car crash. He was 46. That was the beginning of a whole new battle for Jane Pierce, this time with Todd’s life insurance company, MetLife Inc.

A state medical examiner and a sheriff in Rosebud County, Montana, concluded that Pierce’s death was an accident, caused when he lost control of his silver GMC pickup after passing a car on a two-lane road.

Their findings meant Jane was eligible to collect $224,000 on the accidental death insurance policy that Todd had through his employer, power producer PPL Corp. MetLife, however, refused to pay. The nation’s largest life insurer told Pierce on Dec. 8, 2009, that her husband had killed himself. The policy didn’t cover suicide, the insurer said, Bloomberg Markets magazine reports in its April issue.

“How dare they suggest such a thing,” says Pierce, 44, a physician assistant in Colstrip, a Montana mining and power production city of 2,346 people.

She says she’s insulted that the man who courageously battled his disease for a decade was accused by an insurance company of abandoning his wife and two sons — one a U.S. Marine, the other a National Guardsman — and giving up on his fight to live.

Attempts to get the federal government more involve to prevent such behavior have apparently backfired. To be fair, denied claims are actually exceedingly rare. Even so.

Also worth noting is that later in the article, they cite a case where a claim was denied due to drunk driving laws. The problem is that the deceased was not actually in a car, but rather fell down stairs. According to the insurance company, that didn’t matter because alcohol contributed to the accident. It was reversed, but it’s another thing to file away when we consider the low BAC levels required for drunk driving in this country. It’s said that drowsy drivers, drivers on cell phones, and drivers listening to sports on the radio are “just as bad as drunk drivers.” By this reasoning, falling down the stairs because you’re sleepy is like being drunk is like being a drunk driver and is your own darn fault.