WordPlay - Populism, Problems, and Solutions

Seven Racial Anecdotes

I dealt with race and racism pretty much constantly between 1972 and 2007, with greater or lesser wisdom. At any rate, here are some stories. Make of them what you will.

1. The Twofer. Sometime in the mid 70's, when I was public defendering and doing motions, one of our female deputies came into my office, mad as hell. Her client had been Black. She'd done jury selection in the conventional way, getting the conventional responses, and the case had gone forward without incident. But after the verdict (guilty), several of the jurors approached her. It seems that the moment deliberations had begun, one of the jurors who'd done a butter-wouldn't-melt-in-my-mouth number uring voir dire had sat down and said, first thing, "Only a stupid n----r would be dumb enough to have a dumb b----h for a lawyer." Crass racism and sexism in one sentence. A twofer.

My colleague and friend, who was in fact an awfully good lawyer and went on to a distinguished career as a Superior Court judge, was incensed, as was I. The reason was not just the prejudice, but the lying about it during the selection process. Recall that the jury panel is sworn, and these answers are given under oath.

But what happened in the jury room after that, is what was interesting. The other 11 jurors were infuriated. The initial reaction was to walk straight back into the courtroom and announce a 'not guilty' verdict. Unfortunately for my colleague and the defendant, cooler heads prevailed. They decided, despite the presence of one a------e that they were duty bound to examine the evidence, which is almost never good for a public defender's case. Worse than that, this was what we used to call a 'sit through', meaning that there was no defense, that in the face of overwhelming evidence, the defendant was demanding a trial out of sheer orneriness. He wasn't particularly dumb, but he was sociopathic. The deliberations went on without any input from the racist, who was apparently too intimidated to say another word. But it did result in a guilty verdict. The jurors then informed defense counsel, so that the offender could be properly disciplined.

Which he wasn't. The administration of the PD's office in those days was incredibly timid. My colleague and I wanted the matter referred to the DA for possible perjury prosecution, or the trial judge for contempt proceedings. You just don't lie during voir dire. But the higher ups wanted nothing to do with that. We could have run a new trial motion as there is some conduct in the jury room so egregious that it's not protected by the veil of secrecy. But my colleague really didn't want to do that. Despite the glaring misconduct, the verdict was a fair one, and the trial judge (though pretty upset by the juror) not disposed to grant a new trial. So it died aborning.

The point of the story isn't the creep at its center. These we will always have with us. It's the other 11 jurors.

2. The Wrong Man. The second story occurred about the same time. I had a friend, a really good trial lawyer, who was a Black Southerner. He took racial issues as seriously as you'd expect – he was one of the first in his town to ride the public transit in his town after it was integrated, in the Rosa Parks era (though my recollection is he was Georgian, not Alabaman.) One day he came back to the office in a state half-way between tears and laughter. He was defending a White guy, an inmate who for some reason had not been dressed out. (Maybe the defendant refused – it happened.) He was in the middle of jury selection, when a female juror, answering one of the standard questions, politely said she should not sit on this jury because she was prejudiced against Black defendants.

“I'm the lawyer,” my friend says. “I'm obviously the lawyer. The judge had introduced me to the jury. For God's sake, I'm sitting there in a three piece suit and a power tie.” (He was always well-dressed.) “My guy is beside me in an orange jump suit, with the 'SANTA CLARA COUNTY' printed on it. And she can't see beyond the race!” As I said, it was laugh or cry.

This did not require any major lawyering, as the juror was promptly informed of the error, turned about a thousand shades of red, and was excused. The trial went forward – another case in which the double damned jury decided the case on the evidence, and defendant and defense counsel were condemned to woe and misery.

A few days later, we were post morteming the trial. My friend referred to the incident and wondered whether he'd made a mistake in not fighting to keep the juror. What, you are saying, had he lost his mind? Not at all. What he was thinking is that the juror had actually said she was prejudiced against Black criminals. But this particular defendant was White. So she wasn't going to be prejudiced against him – that is, once she had figured out who the defendant actually was. She was honest enough to admit it out loud (unlike the SOB in story one.) And she'd made such a damn fool of herself that she might just have bent over backwards to be fair. Such was his speculative thinking, anyway. Public defendering legal practice has only one operative principle – will it work? We'll never know because it is out of the question to keep such a juror. But it is typical of the way racial issues play out. Mostly you try to maneuver around or neutralize them. On occasion you try to exploit them.

3. The Upper Class. The worst expression of racial prejudice I ran into in those years did not occur in a formal setting. I was out at a Stanford football practice in late December of 1977, watching Bill Walsh get the Cardinal ready for the Sun Bowl. A nice enough older guy came up, about the same age I am now, and we chatted enthusiastically about Darrin Nelson, James Lofton, other Stanford stars of the day, and the general high spirits of the team. The Crime of the Century that year (sic) was the Chowchilla kidnapping, in which a trio of armed guys had waylaid a school bus and buried it (and forty kids) underground. The perpetrators turned out to be a trio of disaffected rich kids from wealthy families up in the San Mateo-Hillsborough area. The crime actually occurred in 1976, but the perpetrators had only recently been sentenced (to LWOP, subsequently reduced to life.) The subject did not come up until my new friend asked what I did for a living. It turned out that he knew one of the wealthy families and was emotionally invested in the sentencing He leaned forward.

“Tell me,” he said, nudging me, with a conspiratorial glint in his eye, “would these kids have been sentenced so harshly if they were Black?” I think he expected me to confirm his belief that they'd have received some sort of wrist slap if they hadn't been white and rich.

I tried my best to be polite, but I must have reacted because I was absolutely dumbfounded, at the monumentality of this delusional thinking. Then I told him the truth as I saw it, that when you hijack a school bus and bury 40 children, you have transcended race, class, gender, and even planetary origin. You are going to get clobbered, no matter who or what you are, because you just hit the top of the charts. I also said that the criminal justice system is far more race neutral than non-participants realize, but it sure as hell isn't class neutral. It strongly favors upper class defendants, and particularly White upper class defendants. He looked at me with his own version of incredulity, then waved his hand in contempt, turned his back, and walked away. I had been dismissed, as One of Those, along with any other input that didn't meet his preconceptions.

Wow, I thought. What goes on in Hillsborough? There is such a thing as a limousine conservative (if not reactionary), completely divorced from reality.

4. Unlikely Hero*. I've asterisked this because it's probably the most important one. We have to jump 12 years ahead in time, to 1990, when I rejoined the civil service as a prosecutor. The first case I tried was a routine petty theft in Los Gatos, inconsequential, batting practice, so to speak. But it took some really unusual twists and I have never forgotten it.

The theft had occurred at an upscale bar, at a late hour. The place was a watering hole for the younger people, partiers, and specialized in exotic, pretty stiff drinks. The defendant, a young woman, had pocketed another girl's purse, then left. When the victim noticed it was gone, her boyfriend chased after the culprit, found her, made her come back to the bar, and the missing purse and some personal items were inside the defendant's purse. An ice cold case, and a good starter for me, though I wondered why it was being tried at all. (It turned out to be a vanity trial, at the insistence of the defendant's mother.)

It had been 13 years since I'd tried a criminal case. I had forgotten so much I had to approach the bench and ask the trial judge which side of the courtroom to stand on. (His face was a real picture.) The defense attorney was well known, and competent, but based on this experience and subsequent, grossly overrated. We picked a jury in nothing flat. One of the members of the panel was THE Chief Probation Officer of Santa Clara County, the guy responsible for all probation and sentencing services. You'd expect this type, who has to be a law-and-order guy, would be the first one taken off the jury by the defense. But the defense unaccountably left him on. I knew something was up and wondered what.

I found out with the second witness. (This was a 'cite-and-release' case, meaning the cop had written a citation and released the defendant, meaning there was next to nothing in the way of police reports.) The first witness was the victim, who turned out to be a youthful and extremely attractive young woman, aged 21, the sort who could easily excite jealousy or envy all on her own. Her testimony was non-controversial. The second witness was the boyfriend, who had retrieved the stolen purse. As it happened, he was Black. and in his mid 30's.

It's good trial procedure to raise issues of this type with the jury during voir dire, as I have indicated above, to eliminate anyone with a problem with that sort of thing. But I hadn't known this fact, and the defense had laid low. So this aspect of the case came as a complete surprise to this mostly-Caucasian, a-little-Asian jury.

The plot thickened. After the boyfriend had told his story easily and naturally, the defense cross-examined. The boyfriend had an unusual surname, one defense counsel recognized as that of a family, most of whose members had been in trouble with the law. He asked if that were the young man's family. Yes, it was. Stretching good faith to the limit, and maybe beyond, he asked the witness if he had been convicted of a felony. Yes, he had, twice for cocaine possession and once for . . . theft. Then came a series of questions implying that for reasons of his own, he had secreted the purse and produced it to make some sort of impression with the pretty victim. For a lot of evidentiary reasons too detailed to relate, the suggestion was absurd, but raw meat for anyone with a racial agenda looking for an excuse.

And let me throw one last log on the fire. There was a significant age difference between the girl and the guy – not enough to be obscene, but enough to raise an eyebrow. She was just out of her teens. He was in his mid 30's. Forget race for a second - if you know any families who would be thrilled with their young daughters keeping company with much older men with a criminal record at sophisticated bars, let me know. Because I sure don't know any.

So anyone with a racist bent who wanted to characterize this as Innocent White Girl Corrupted by Sophisticated Black Con had all the ammunition he or she would need. All of this hit the jury completely cold. Had I known the boyfriend had a criminal record, or his age, the jury would have been alerted to that, too. But the case hadn't been prepped at all by the regularly assigned deputy, and I'd taken it on about an hour's notice. So all of this was coming to the jury as a total surprise.

The witness answered all this beautifully, admitting the convictions, but denying without any fuss that he'd had anything to do with the theft. He had a good job at that time of his life, and said straightforwardly that his convictions were way, way behind him, ancient history. But all the ingredients for anyone with a racial bias were there. He was a convicted thief, and he had handled the stolen property. Anyone who had a racial bias he or she wanted to express could claim to have a reasonable doubt, with no one the wiser. It would not have been in good faith, but who could say him or her nay?

So I was a mite worried when the jury went out. As it happened, however, they were back in an hour with a guilty verdict, which is about all the time the relevant evidence in this absolute no-brainer of a case justified. Afterwards, a few of them hung around. I was mightily curious about how these totally unexpected developments had hit them. What I learned was that – to a man and woman – they had been . . . . utterly outraged by the impeachment of the boyfriend on felony convictions. They all regarded that tactic as completely below the belt. (The Chief Probation Officer was one of the most vehement.) None of them had snapped at the racial bait even for a second. This is only one case, circa 1990, but it has stayed with me – because I think it's paradigmatic.

I have no doubt that in an unscreened panel of even that small size, you had more than one who had deeply negative feelings about interracial couples, particularly Black men and white women. There's a lot of that out there, then, now, and always. But there wasn't one of them that was sufficiently distracted by however they felt to lose sight of the facts of the case, or fail to judge the individuals as individuals rather than racial stereotypes. THAT, to me, is the ultimate bottom line – not the racial feelings, one way or other, but the ability to bring the individual into focus as another unique human being, As with the 11 jury members in the first story, whatever racial notions this jury may have had stayed firmly in the background.

And this is true for just about every jury I have ever been involved with. More on these matters anon.

5. The Little Boys in the Photograph. During the 1990's, Santa Clara County high tech companies were hit by a really obnoxious pattern crime. On a given day when a large shipment of pricey components was expected, gunmen in ski masks would take over the loading dock, seize the shipment, and drive off with it. Scary stuff. We came to learn this was a rainbow coalition crime – basically, the intelligence as to when the shipment was due was obtained from delinquent gamblers, nearly always Asian, paying off a debt, leaked to someone who organized the robbery. The actual perpetrators were either Vietnamese locals, or occasionally Crips who came up from Los Angeles for that purpose. The goods moved very rapidly out of state or down to Los Angeles. For a while, these were extremely successful crimes. There were a few dozen instances.

The one I am going to tell you about was a variant of this m.o. A Fed-Ex driver delivering a huge shipment of goods (valued in the high six, low seven, figures) was carjacked by three African-Americans. He was forced out of the cab with at gunpoint, on to a busy expressway (fortunately uninjured). The perpetrators then took off for parts unknown.

Which is where the scheme became unglued. The perps thought they'd picked a vacant lot out of eyesight, but in fact an office worker severally stories up and a couple of blocks away looked out his window, and saw three Black males moving cartoned boxes as fast as they could out of a Fed-Ex truck, into a rental van. This looked pretty suspicious, so he phoned the police. But before any oficers could arrive, the men and the van were gone. These were very efficient operations.

The SJPD sergeant who was on the case was really good. He knew the pattern of the crime cold. Telling his wife he was going to be late for dinner, he drove down the freeway to the major exit to the I-5 Interstate, and waited. Sure enough, about 45 minutes later, along comes the rental van (matching plates) and three African Americans with matching descriptions. He calls for fill from the California Highway Patrol, a little convoy is formed, and they make a major league bust along the road, undoubtedly drawing curses from every commuter on his way home that night.

My assignment was high tech, so this was my case, even though this sort of street crime was a long way from the trade secret theft I'd signed on for. The ringleader of the group absolutely refused to deal the case, so we got ready for trial. This was preceded by a motion to suppress evidence, on the ground that the SJPD sergeant lacked probable cause to make a stop. If your mouth has dropped open in wonderment at the apparent lack of merit here, you're right. The motion was a complete non-starter. However, the defendant had retained an eager young newly minted attorney, brimming with hubris and political correctness, who absolutely believed in it.

I went over to review the evidence with the sergeant. We'd taken pictures of the stolen components and returned them to the company (price degradation was a real issue), but we'd never been over the personal items seized from the defendant that night. There might be something there that helped the case. We opened the driver's wallet. There, right under the defendant's driver's license, was a portrait photo of two of the handsomest young Black boys you ever saw, faces gleaming, smiles broad – maybe 7 and 9, about that age, I think they may have been in parochial school uniforms, but I don't remember clearly. It was absolutely crushing to see that picture and know what was coming at that family - because this was a multi-million dollar theft, with a car jacking, a gun, and heavy, HEAVY duty time.

The hard boiled sergeant slammed his hand on the table hard enough to startle me. 'God damn it,' he said.

'Not your fault,' I answered.

'I need some time,' he said, and left me for a while. Right that second I do believe he was regretting he'd ever made the bust, despite the brilliant police work. I thought of the Rodgers and Hammerstein musical Carousel, which turns on a crime committed by the hero to raise money for his unborn daughter. I wondered if that's why the guy had gotten involved in the scheme. The sergeant returned. He knew and I knew, that there was no way you can write off a crime of this magnitude, no matter how nice a school photo. We said no more about it.

A week or so later, we had the suppression hearing. I put on the People's case as I've written it up here. The young defense attorney (a white guy, by the way) got up and rose to his full height. He waxed indignant. “Sergeant,” he said, “isn't it true that the only reason you stopped that van was because the driver and passengers were Black?”

“No,” my guy answered quietly and professionally.

“Isn't it true that you are prejudiced against African-Americans?” he continued, a little pontifically.

“No,” the sergeant answered, without emotion, and rightly so. Enduring random, groundless slander is part of the job description. It went on for a while in that manner. I looked over at the defense side, where a fair number of friends and relatives had come up for the hearing. They were all nodding in sad, solemn agreement. Their loved one was the victim of a racist police officer. (I don't for one second think that exemplifies the African-American community reaction to a stop of this sort. Anyone without a bias recognizes the difference between a random stop and one on specific descriptions, which this one was. This was a personal and familial reaction, a rationalization, actually, to which I am somewhat sympathetic, to the devastation this arrest and prosecution was going to wreak.)

The defendant did go to trial, went down hard, and ended up with 15 years. I'd bet money that on the yard he blamed the racist cop and the racist judge who let him get away with blatant racial profiling.

But I see it a little differently.

(N.B. This one I novelized a little bit, for dramatic effect. But the gist of it, including the officer's reaction to the photograph, is accurate.)

6. The Engineer with the Sunglasses. Jury issues have occurred frequently in this brief reminiscence, first because it is where you see the community in action, second, because it is the area where biases of all types at the trial attorney level are apt to appear. Every trial attorney I have ever met, including yours truly, wants a jury of people just like himself. My ideal jury would be 12 of me - not just white men in later middle age, but actual clones. I'd know how they think, what arguments they like, what doesn't work – it would be wonderful.

Unfortunately, that's not the law. As it happened, I came to enjoy the challenge of rainbow juries, to such an extent that I developed a mild reputation for eccentricity in my willingness to accept just about anyone. I am going to close with two stories about jury selection.

The last major case I did, in 2002, was about as serious a case of Internet stalking as it is possible to imagine. Everyone in the case was Indian (from India). The defendant, a rejected suitor, had stalked and harassed his former girlfriend and her husband over a ten year period in both California and Michigan, spray painting their house in the dead of night, cutting car brake lines, etc. He'd been to prison once, in Michigan, but the incompetence of the parole authorities there had allowed him to get away with a series of harassments afterward. Finally, he moved to Santa Clara County, from whence he sent a 300 word, hair-raising, email (anonymous, naturally) threatening death by fire, castration, etc. The case cost a lot to try, but it was pretty important we get a conviction. I thought the danger to the young couple was growing, as this guy came more and more to believe in his immunity from detection. He was also becoming angrier.

Jury selection went normally. The juror I am going to talk about was a young, Black male in his late 20's, with a good job as a technologist in a local company. Race was no issue, but he bothered me a little. His answers on voir dire were so laconic that they stopped just short of sullen. Also, he was unmarried, which always worried me with a female victim, as you may have some misogyny kicking around some place. But the job was good, he was otherwise well socialized, and my thought was that – if he did have an attitude – that at the worst he'd be passive.

The next day, when opening arguments began, all sorts of big time warning lights began to go off. He showed up in sunglasses – which no one wears to court – and similar odd dress. But most of all, throughout the morning, he was showing off body language that stopped just short of contempt – swiveling away, from the court, turning his back on counsel, etc. I'm a little concerned that this description is inadequate, but the reader is going to have to trust me – I've done well over a hundred jury trials – and this was really unusual behavior. Every move this guy made seemed calculated to be an FU to the court and the proceeding.

Not good. The judge was an old friend but also old school. Like all good judges, he didn't care about the verdict, but he did care that we get a functioning jury. He was not at all on my page about jury inclusion, and had wondered before about some of my choices (though they'd always worked out.) This time he thought I'd goofed big time. I was quite worried he was right, as we had a lot riding on the case. So I did something I'd never had to do before, and checked the juror out – not on the criminal databases, but on Google and elsewhere. (This was 2002.)

Surprise, surprise – he turned out to be a graduate of an extremely prestigious technological University (MIT, if I recall correctly), and not just a good citizen, but an exemplary one. He'd won a couple of awards for his involvement in boys clubs and inner city youth organizations. He looked a lot different in the Internet pictures than he did scowling in the courtroom.

This did not end the issue – you can be a great person, and still have attitudes about the criminal justice system that disqualify you from jury service. But it did end any thought of doing more. All we had was a guy doing a great impersonation of Supremely Disaffected Young Black with Attitude – and we were going to have to assume that all that good citizenship was what defined him, not the courtroom demeanor. I told the judge I was going take my chances and let the matter go. I got the predictable disgusted look.

The case ultimately went to jury, with very solid evidence. In a relatively short time, we had the verdict we wanted. (Complete success, which is rare in my business, for the harassment stopped completely and the couple has been at peace ever since. I gave a version of a Godfather speech to the defendant at sentencing - 'if a meteor should chance to strike them . . . ' It must have sunk in.) The case had been interesting, and a few of the jurors lingered. Alas, the juror who had concerned me was not one of them. But I was curious how he'd acted during deliberations. As it turned out, fairly predictably – he'd been polite but distant, very quiet. At one point, he'd courteously corrected someone's misunderstanding of IP protocols, then remarked that the evidence in the case was overwhelming. He'd voted guilty on every ballot, which was what the weight of the evidence justified.

So . . . . an ideal juror. But I have always wondered what was bothering him during the presentation of the case. Something clearly was.

7. The Pear-Shaped Curve. I didn't fare so well in the last of these stories. The defendant was an executive with a major high tech company, and he was African-American (actually from the Caribbean). He was accused of embezzling some slightly out-of-date circuit boards which were, however, still current and serialized. The boards were discovered when his confederate was arrested, another African-American who belonged to the same congregation, an evangelical church in South Alameda County. The two had been observed moving something from the trunk of one car to another shortly before. So this was a pretty solid case.

The juror I am going to describe was the only African-American juror on the panel. He was in his late 30's, and a clerk at some company or other. Asked about biases towards the criminal justice system in general, he volunteered that he thought it was biased against African-Americans and that he'd been stopped a couple of times by cops that he thought were not justified. He said this with a mildly challenging, in-your-face, manner.

The challenging manner would be reason enough to toss him, but I was full of myself by that time, and decided to keep him. First, he'd been open about it, which to me meant he could be reasoned with. Second, he'd talked about disliking the police, but this was not a police-driven case – the core of the proof was corporate records. Third, both the defendant and the principal witness were African-American, so the case wasn't going to present like one lonely Black soul against the Man. Finally, I'd read more than a little about jury behavior, and knew that 11-1 hangs were extremely rare. (The recent trial of Barry Bonds had one count that hung on that division, but there were other counts with larger minorities, from which the lone holdout doubtless drew strength.)

Two other factors should have caused me to toss him, though. The first was entirely subjective. I didn't like him. (I'd been unable to connect with the juror in the last story, but I didn't get any impression at the time of jury selection that he was hostile, only distant.) The second I am setting forth in the interest of telling it like it is. The juror was another unmarried male, this in his late thirties, and fat to a point just short of morbidly obese – not from any easily recognizable glandular difficulty, but likely from years of overeating. Either factor by itself likely doesn't matter all that much, but together it adds up to a real possibility that the individual is isolated socially, a loner, not someone who's going to join the social consensus required in jury deliberations all that easily. So in addition to my loose dislike, there was the real possibility he was a social misfit, quite apart from any racial factor. That should have been enough.

I don't know how this strikes the reader, but in selecting a jury you have maybe five minutes to size some one up and make the best decision you can. A lot of this decision making takes place by default in a jungle of first impressions – most of which storm warnings I ignored in this case. Whatever the reasons, this decision turned out wrong, wrong, wrong. Even on the first day, my witnesses began reporting that he was rolling his eyes and making faces at them. This went on throughout the trial. The case went to jury without any evidentiary problems, and the jury got to 11-1 within a couple of hours. The lone holdout was you-know-who. The others pressured him for reasons, which is what's supposed to happen. He gave them reasons for a while, but had them blown out of the water by the other jurors. Finally he said he didn't believe the defendant was guilty, he wasn't going to vote guilty, and he wasn't going to discuss reasons anymore.

That's where it ended, hung jury, two days later. As the jury left, the holdout turned and gave me this long, smug look. Well, I guess I showed you. I don't know what exactly he thought he'd shown – cases in which the outcome is not related to any rational construction of the evidence are simply dismal generators of cynicism. They don't do anyone any good. His gesture had cost the County somewhere between one and two hundred thousand dollars, based on what it cost to keep a courtroom open for a day. Plus I had to go back to the Neanderthals in the office and admit, that while I still was going to keep selecting juries my way, they did have a point. The next day, I got two calls from infuriated jurors who felt their time had been wasted, and wondered what could be done about it. (Nothing.)

I don't know what the holdout juror thought his point was. But I am sure it made his next Double Whopper go down a bit more easily. (A little bitterness there).

The subsequent history of this case took some curious twists, which also bear on the racism – or lack thereof – in this society. But I'd like to make a couple of comments about the unanimity requirement in jury verdicts before I do. I love the jury system. Believe it or not, I think both the white racist in the first story, and the Black racist in the last, probably belong on the jury, and it probably does society some good to leave them there. The guy in the first story likely thought he was going to get a lot of approval and support for his crudity. He ended up in the corner with a dunce cap on (figuratively speaking), worrying about whether a judge was going to toss him in jail. That couldn't possibly have done him any harm. The Black racist wasn't so roughly treated, but he did spend a couple of days being berated by sensible, exasperated people. It had to have some effect. Again, not bad.

The problem is not that people like this have a voice, which they maybe should, but that the system gives them a veto, which they definitely should not have. My own thought is that changing the verdict requirement to 11-1 or 10-2 , which is Constitutionally permissible, would remove the necessity for trial lawyers to select 'perfect' juries, relieve the stress, and probably lead to more diverse and interesting panels. It would certainly make trial lawyers more willing to follow the law, which many at present do not. End of digression.

The case was retried, and I thought it would be pretty easy. Retrials usually are. Not so. To the amazement of myself and the trial judge, on identical evidence, the second jury acquitted the defendant as rapidly as the first had been ready to convict. I was amazed at first, but then I understood.

The defendant had testified at the first trial, and had not done well. He'd come across as pompous, arrogant, hypocritical, and without any easy answers to a lot of hard questions. At the second trial, more sensible advice had prevailed and he kept silent. The testimony from the first trial had been read to the jury, of course, but without the defendant in the flesh, sweating, writhing, and pontificating, it lacked the crackling dramatic force it had the first time. In its absence, the jury had gone straight to the other salient point in the case – the striking difference between the defendant (who in addition to being a ranking executive in his company, was a deacon in his church and had led a clean, blameless life to that point) and his confederate (who had a telephone book for a record.) Never mind that the inventory records showed beyond any possible doubt that Mr. Clean had indeed filched circuit boards from his employer and provided them to the Telephone Book. There was no way this hury were going to take him down on the word of the People's star witness. One juror told me afterward they hadn't even discussed the inventory records, which were indisputable proof of guilt.

At the time, I was more than a little nettled, as the defendant should not have been acquitted on this record. Over time, with the competitive juices subsiding, I've come around to the jury's way of thinking, One thing that had bothered me from the beginning was that there was no take out for the defendant. There was no evidence he'd ever received anything of value in exchange for the stolen boards. I expected to find it somewhere along the way, but in two trials it never turned up. His testimony was that his relationship with Telephone Book was only for the purpose of providing counsel (of the type a lay deacon in a church gives), which there is no doubt Telephone Book desperately needed. He also denied he had ever given the guy the stolen boards. He was lying through his teeth about that latter aspect of the matter, but it became more and more plausible that he'd provided them in some sort of misguided reclamation project. That didn't make him any less a thief as a matter of law, but it did mean that he was not 'in the life', so to speak – a thief, but a rather unusual one. Query whether destroying this guy's professional reputation over what was really a rather trivial theft might not have done more social harm than good. That was the way the jury saw it, anyway, and I am not so sure it wasn't right.

For those of you keeping racial score, the jury in the second case was almost entirely White. (Maybe there was an Asian or two, but no African Americans. None had been called on the random draw for that particular panel.) The defendant and his counsel were both African American. Everyone on the prosecution side (except for the confederate) was White. The judge was White, as was the prosecutor (me). None of this racial census meant a damn thing to the jury in its almost instant vindication of the defendant. This was in the 2003-2004 time frame, something like that.

I commented to someone once that if I did have to suffer a detriment in the form of potential prejudice as the defendant in a criminal prosecution, I would far rather be an upper-class Black than a dirt-poor white. This is the case I had in mind when I wrote that.

Conclusions: I call myself a Populist, which has drawn the occasional jeer, but I really am, and it goes down to the roots. Beneath the astounding diversity of cultures in this wondrous Nation lies an even more amazing commonality of values, once you scrape down to the root. I am fully aware that the Declaration of Independence and the Constitution did not repeal human nature. Fools and idiots like the ones in the first and seventh story we will always have with us. Nor will we ever escape completely the weight of history. Race, gender, and religious traditions claim us like a hand from the grave on the ankle.

But I do think that we have created the most open, tolerant society in history, given due allowance for the constraints of human reality. It is also my belief, based on my experience, that the vast majority of American citizens are able to judge individuals as individuals, regardless of whatever racial stereotyping they may have brought to the party. That's really the crux, the point in human interaction where racism either holds sway, or breaks down. These days, more often than not, it breaks down. That's the moral of the 4th anecdote.

The Case For Jury Nullification

Is there a justification for jury nullification? Indeed there is, though on a far more limited and abstract basis than naive 'informed juror types' would suggest. I discussed the applicable rationale in a lecture I have years ago to a group of prosecutors. The subject was the application and range of Penal Code Section 499c, which applies to theft of trade secrets. But my audience found the remarks about jury nullification far more interesting.

I began the lecture by posing a fundamental question, applicable at least to criminal law. Do the statutes and decisional authority define absolutely our criminal law? Or are they attempts to map a deeper social morality, much more complex and subtle? I believe the latter is the case, and that the contours of the underlying morality are in fact infinitely complex. It is thus impossible to write an exhaustive statutory scheme for criminal law, no matter how lengthy or prolix. I am fond of mathematical analogies, and the one I used here is Euclid's ancient proof of an infinity of prime numbers. No matter how many divisors you create, a number will exist that can't be divided by any of them.

Becoming concrete, consider the law of homicide. The basic statute defines the killing of a human being as unlawful . . . unless committed in self-defense . . . except if the self-defense involved excessive force . . . or if the assailant broke off the attempt . .. . unless the assailant had a history of repeated attacks , etc., etc., etc. A similar assortment of principles, exceptions, exceptions to exceptions, and so forth, can be compiled for homicides committed in defense of others, in defense of property, for elements of mitigation, excuse, and so on. There are also excuses (heat of passion, reduced mental capacity) and various forms of mitigation, also qualified by provisos, exceptions, also extending out indefinitely with no definite term.

The point is that language is discrete and finite. The underlying values are not. No matter how long the statute or how complex the scheme, a case will arise that is not covered by them – that is, in which the result is felt or intuited in accordance with understood human and social values, but not covered by statutory language. (I made this point at the beginning of a lecture on trade secret law to underscore the infancy of criminal law in these matters. There are tens, if not hundreds, of thousands of homicide cases going back several centuries. The uncovered case, although I do believe it exists in theory, is way, way out there and unlikely ever to occur in practice. In trade ecret law, on the other hand, our analogous prime number is maybe 59, if it's that large. That point being made, the presentation then became a little more practical (and a lot less interesting.)

Thus the case for jury nullification. It would be justified on those occasions when the jury encounters that exceptional case, the one that falls through the cracks of articulated law. There are moral judgments, and even moral imperatives, that established law does not address.

But that said, let me note some limitations.

The first is the biggie. We are discussing jurEE nullifcation. There is no such thing as jurOR nullification. I am describing a fairly austere, formidable intellectual exercise, to be done in complete good faith. That's considerably different than the actual case of juror nullification, which in practice means a juror decides on his own, and without any firm grounding, that a defendant does not deserve conviction (or acquittal), and obstructs the jury process accordingly.

This crude notion of nullification, based on the raw power of a lone juror to act whimsically, actually is internally inconsistent. The juror only obtains the position of empowerment by acceptance of the social matrix and legal framework that enables him to be impaneled in judgment. A hypocrisy that profound defeats the argument utterly. It is impossible to assert that an action is perrformed in good faith when it is grounded on conscious bad faith.

But I also want to address this notion at a slightly more elevated philosophical level. Borrowing some language from existential philosophy, let me put to the proponents of this concept a fundamental question – how do you know? How can the individual be so sure of his moral ground, that he and he alone sees the flaw in a statute that has been explicitly or implicitly accepted by thousands if not millions of others? There's no one whose world views are not influenced by their own life experience and subjectivity, no matter how careful they try to be. So you're the first person who's seen the profound immorality, say, of punishing pawnbrokers for receiving stolen property? What makes you think you're the one who's right?

Alexander Pope wrote famously (in his Essay on Criticism) that:

Our judgments, like our watches, none
go just alike, yet each believes his own

In this respect, moral judgments are no different than aesthetic ones. It's been fashionable since Nuremberg to elevate the individual conscience to primacy over social consensus. I could not disagree more completely. The indivdiual conscience could belong to Hitler or Stalin. It's a truism that even less elevated criminals rationalize their acts in accordance with their own moral notions. From the subjective viewpoint of the actor, if individual conscience is supreme, there is no way to know that his or her standards are warped.

I don't want to limit the scope of this argument to criminality. Consider the frontiersman-Congressman Davy Crockett, who Walt Disney turned into a national icon among primary schoolers in the mid-50's. Davy (sic – I was a fan) lived by the motto, 'be sure you're right, then go ahead.' (James Kunen, writing 45 years ago as a 20's something Columbia graduate, said in his book, The Strawberry Statement that Davy became the godfather of the Vietnam opposition with those words. Absolutely right, in my opinion.) It's a nice motto, but Davy in the event died at the Alamo, fighting for the extension of slavery into the Southwest, and the precursor to the Mexican War, a war almost no one thought had any moral or legal basis – condemned by men as varied as the ultra-subtle Thoreau and the ultra-direct U.S. Grant (who served with distinction, but loathed the cause). So Davy might have been sure he was right, but a lot of decent folk disagreed with him. How, I wonder, would he have responded to the core question, how do you know? How can you be sure that your sympathy for this cause isn't conditioned on your own yearning for a large estate and political power in a new land? Of all the people who might provide a rational answer to that question, Davy himself, locked into his own subjectivity, is the very last.

My affection for consensus judgments is based on this notion. In the jury process at its best, the idiosyncratic weaknesses of the individual's judgment are burnished off, and a 'pure' community judgment emerges. At its best, it's a wonder.

In any case, that's the argument for jury nullification in the exceptionally rare case that falls through a crack in the statutory framework. And the case against as well.

A Primer on 'Miranda'

1) 'Miranda' warnings take their name from the case Miranda v. Arizona, a 1966 Supreme Court decision. Before Miranda was decided, it was the practice and custom of  a great many, if not most, police agencies to give the subject of an interrogation a cautionary warning, e.g., it was standard FBI procedure almost from the outset. But the Miranda decision made these a requirement before any custodial interrogation and created a rebuttable presumption that any admission obtained without the giving of such a warning and a knowledgeable waiver would be involuntary and therefor inadmissible.

(2) The subject must be advised (1) that he has a right to remain silent, (2)  that anything he says may be used against him (3) that he has a right to counsel and (4) that if he cannot afford counsel, one will be appointed for him. The requirement of warnings is substantive, not formal, and the presumption of involuntariness can be overcome with an appropriate showing. For example, when dealing with a suspect who is known to be super-rich, officers have on occasion forgotten the fourth, because it is so obvious the suspect can afford counsel. That will not by itself render the statements in admissible.

(3) The warnings must be given at the start of  'custodial interrogation'. Both words are meaningful and have been the subject of countless litigations. Both must apply. For example, suppose the police come across a murder scene  and spot a stranger outside. An officer asks who lives in the house. The suspect says 'I did, but not after I've killed the *****'. Although the stranger was responding to a question and was arguably interrogated (to be sure, a weak argument), the statement will come in - he wasn't under arrest.
Second, suppose the suspect is in the house and covered with blood. He is arrested, and taken to the station. As the homicide detective sits down, he bursts into tears and says 'I did it, I just couldn't take any more (Delilah)'. Although he's under arrest, he was not being interrogated. The statement will be admissible. Real controversy occurs when the suspect blurts something out while the police are asking routine identifier questions - name, address, and so forth.  

(4) This may sound technical, but Miranda is predicated on the Fifth Amendment (right against self incrimination), not the Sixth Amendment (right to counsel). What this boils down to in practice is that invoking Miranda will not result in the immediate appointment of counsel (except in really unusual cases.) What happens - or is supposed to happen - is that the police quit questioning. You are advised of the right to appointed counsel so that you'll know the rights at stake, not so you can obtain counsel. 
Thus, invoking Miranda is not the same as 'lawyering up'. 

(5) Miranda warnings are not required as an element of the arrest. They need only be given when the police desire to question the suspect. In my public defender days, when i represented a lot of drivers charged with DUI, I had a lot of clients who would show up convinced they were going to get a pass because the arresting officer had not given them Miranda warnings. I would have to explain that that omission did not make the arrest unlawful. All it meant was that the client was so slobbering drunk at the time that the officer was certain that the AIB would prove out, and he preferred to be back out on patrol than wasting time talking to an inebriate. (I put it a bit more diplomatically than that, of course.)  Most clients accepted this accurate advice gracefully, but a few were convinced that this was more proof the Public Defender's Office was just  one more part of the system.

(6) By way of editorial, I believe that the Miranda rubric has outlived its usefulness. I am one of those who thinks that the police should be REQUIRED to record all interrogations by the most information rich method available, videotape when possible, audiotape when not. There will be situations (e.g. field interrogations) when recording simply isn't possible, but the arresting officer should be prepared to explain why not in satisfactory detail.

The point is that Miranda came down at a time when there was almost no evidence about the content of most interrogations available, except police notes and the recollection of the suspect. There are credibility problems with both. Miranda was intended to provide at least some baseline of reliability. It was pretty good law at the time, and it has worked very well. But with the explosion in communication devices, we can do a lot better.

I'd still requite the warnings - it's a nice bright line to let the suspect know he's in deep trouble.  But the outcome would not turn on what can be an empty formality, I would not forget the ultimate criteria is the voluntariness of the statement. These days it's possible to allow the reviewing judge in the majority of cases to take a look at a video of the interrogation. If it displays a relaxed, confident suspect, it shouldn't matter that he began answering questions without making a formal waiver of right. Contrariwise, if you see a suspect who is bewildered, frightened, or absolutely traumatized by the interaction, it shouldn't matter that the t's were crossed and i's dotted. An involuntary statement is incompetent evidence, i.e., meaningless, no matter how many warnings you give, 

FWIW, the local police agencies tape everything, whenever possible. However, there is huge resistance across the country, and particularly from the Federal agencies (especially the FBI) fro requiring recording as a matter of law.1) 'Miranda' warnings take their name from the case Miranda v. Arizona, a 1966 Supreme Court decision. Before Miranda was decided, it was the practice and custom of  a great many, if not most, police agencies to give the subject of an interrogation a cautionary warning, e.g., it was standard FBI procedure almost from the outset. But the Miranda decision made these a requirement before any custodial interrogation and created a rebuttable presumption that any admission obtained without the giving of such a warning and a knowledgeable waiver would be involuntary and therefor inadmissible.

(2) The subject must be advised (1) that he has a right to remain silent, (2)  that anything he says may be used against him (3) that he has a right to counsel and (4) that if he cannot afford counsel, one will be appointed for him. The requirement of warnings is substantive, not formal, and the presumption of involuntariness can be overcome with an appropriate showing. For example, when dealing with a suspect who is known to be super-rich, officers have on occasion forgotten the fourth, because it is so obvious the suspect can afford counsel. That will not by itself render the statements in admissible.

(3) The warnings must be given at the start of  'custodial interrogation'. Both words are meaningful and have been the subject of countless litigations. Both must apply. For example, suppose the police come across a murder scene  and spot a stranger outside. An officer asks who lives in the house. The suspect says 'I did, but not after I've killed the *****'. Although the stranger was responding to a question and was arguably interrogated (to be sure, a weak argument), the statement will come in - he wasn't under arrest.
Second, suppose the suspect is in the house and covered with blood. He is arrested, and taken to the station. As the homicide detective sits down, he bursts into tears and says 'I did it, I just couldn't take any more (Delilah)'. Although he's under arrest, he was not being interrogated. The statement will be admissible. Real controversy occurs when the suspect blurts something out while the police are asking routine identifier questions - name, address, and so forth.  

(4) This may sound technical, but Miranda is predicated on the Fifth Amendment (right against self incrimination), not the Sixth Amendment (right to counsel). What this boils down to in practice is that invoking Miranda will not result in the immediate appointment of counsel (except in really unusual cases.) What happens - or is supposed to happen - is that the police quit questioning. You are advised of the right to appointed counsel so that you'll know the rights at stake, not so you can obtain counsel. 
Thus, invoking Miranda is not the same as 'lawyering up'. 

(5) Miranda warnings are not required as an element of the arrest. They need only be given when the police desire to question the suspect. In my public defender days, when i represented a lot of drivers charged with DUI, I had a lot of clients who would show up convinced they were going to get a pass because the arresting officer had not given them Miranda warnings. I would have to explain that that omission did not make the arrest unlawful. All it meant was that the client was so slobbering drunk at the time that the officer was certain that the AIB would prove out, and he preferred to be back out on patrol than wasting time talking to an inebriate. (I put it a bit more diplomatically than that, of course.)  Most clients accepted this accurate advice gracefully, but a few were convinced that this was more proof the Public Defender's Office was just  one more part of the system.

(6) By way of editorial, I believe that the Miranda rubric has outlived its usefulness. I am one of those who thinks that the police should be REQUIRED to record all interrogations by the most information rich method available, videotape when possible, audiotape when not. There will be situations (e.g. field interrogations) when recording simply isn't possible, but the arresting officer should be prepared to explain why not in satisfactory detail.

The point is that Miranda came down at a time when there was almost no evidence about the content of most interrogations available, except police notes and the recollection of the suspect. There are credibility problems with both. Miranda was intended to provide at least some baseline of reliability. It was pretty good law at the time, and it has worked very well. But with the explosion in communication devices, we can do a lot better.

I'd still require the warnings - it's a nice bright line to let the suspect know he's in deep trouble.  But the outcome would not turn on what can be an empty formality, I would not forget the ultimate criteria is the voluntariness of the statement. These days it's possible to allow the reviewing judge in the majority of cases to take a look at a video of the interrogation. If it displays a relaxed, confident suspect, it shouldn't matter that he began answering questions without making a formal waiver of right. Contrariwise, if you see a suspect who is bewildered, frightened, or absolutely traumatized by the interaction, it shouldn't matter that the t's were crossed and i's dotted. An involuntary statement is incompetent evidence, i.e., meaningless, no matter how many warnings you give, 

FWIW, the local police agencies tape everything, whenever possible. However, there is huge resistance across the country, and particularly from the Federal agencies (especially the FBI) from requiring recording as a matter of law.

Electronic Privacy - Some Tales from the Field

From the start of 1990 until my retirement at the end of 2007, I was a deputy district attorney in Santa Clara County. I was a lateral hire. Because of my background with developing technology companies, I was assigned to the white collar and high technology units. The practice had some unique aspects. The County is only one more local jurisdiction, with the typical range of felony prosecutions. But it is also Silicon Valley, the first and still one of the most intense technology sites in the world. During my tenure, Yahoo, Netscape, Hotmail, and Google (just to name major email service providers) came into being and located within the county borders. This led to some interesting experiences on the cutting edge of what was then the emerging issue of privacy in the electronic age, that I think are worth sharing.

A little perspective. I didn't deal with major issues of policy or national security. Problems relating to electronic communications showed up in more or less 'ordinary' prosecutions - a woman being harassed by an ex-boyfriend, a couple stalked by an aggrieved suitor, a hack by a disgruntled employee, and - later on - identity theft. The point is that the holder of the account, the 'target', if you will, was not the only player on the field. There was nearly always someone else involved, a someone who cared passionately that the truth be found, and justice be done. There is always a trade-off with legal privilege, relevant material that is lost to society, and frequently a particular individual who is badly hurt by the loss. That perspective, as prosaic as it is, is frequently overlooked in these discussions. 

Back in the late 90's, a complaint reached the District Attorney's office from a young woman, a beauty shop owner in Gilroy, concerning systematic telephone harassment. Evidently, someone had set up an account on a dating service, furnished her home and cell phone numbers, and described her fictional self  as a sex maniac who was up for phone sex morning, noon, and night. The upshot was that her phone rang constantly at all hours of the day and night. (It is a sad commentary on the male sex that anyone believed such nonsense.) The victim strongly suspected a spurned lover, but had no direct proof. 

Complaints of this type rarely come straight to the District Attorney's Office. They're usually made to the local police department, as indeed had this one. Unfortunately, at that time the Gilroy Police Department lacked any in-house computer expertise. (I am sure that has changed.) It was not that the complaint wasn't taken seriously. There had recently been a well-publicized case in Los Angeles, where an infuriated ex-boyfriend had put the victim's name and address up on a dating site, described her in the first person as being addicted to rough sex, and advised her callers to ignore her pleas for help and protests, as that was part of the fun. The victim ended up being savagely raped. The ex-boyfriend went to prison on a fairly novel theory of aiding and abetting the crime. Everyone had heard of the case, so the Gilroy victim was taken seriously. But the police department didn't know how to proceed. Thus the matter made its way to the District Attorney's Office. 

The method of investigation is straightforward, even obvious. Cyberspace may be deaf, dumb, and blind, but it is not trackless. Find out the source of the dating ad, and tracing back to the origin, is a piece of cake. Internet activity comes with an ultimate, absolute, inescapable return address. This dating service (as I recall) like most required an email address. The dating service was cooperative; the notion that it was being used as a vehicle for harassment and worse was not a happy thought.  

It is here that the incident becomes worth recounting. The account had been created through a Yahoo email account,  a freebie, like Hotmail, Gmail, and the other Internet types. The user of such an account does not have to provide accurate personal information, and this one of course had not. The user name was something like 'Your Nightmare', and the home address 'Nightmare City'. That fact has some interesting implications.

Generally, I am about as interested in legal theory as I am in the theory of paper mache submarines. I don't really believe law exists as theory, but only in practice  (a subject for a much longer essay one of these days). The basic rule of law that defines the ambit of the Fourth Amendment is a 'citizen's reasonable expectation of privacy'. As a practical matter, that rule of law really didn't matter too much to the investigation of the Gilroy case, because obtaining a search warrant on these facts is child's play. The email account connected to the phony dating site - easy. More than that, execution of the warrant does not involve breaking down a door of someone's home (a very, very big deal), but simply producing a small computer file - no major repercussions in the event of some inexplicable mistake. So in practice I could care less whether a reasonable expectation of privacy does or does not attach to such an account - and practice is generally all I care about.

This is the rule-proving exception, since I began this essay in response to a debate about electronic privacy on the civilized chat board where I hang around. So let us consider a moment whether a reasonable expectation of privacy attached to e-mail accounts. I don't think there is any argument about personal accounts an account holder maintains for him- or herself. The account holder expects them to be private. Nor is there much debate about accounts maintained by an employer or the like, particularly if the account holders are given appropriate notice that they are subject to review by the MIS staff of the employer. These clearly are not private - the account holder doesn't own them. 

But what about these freebie HTML e-mail accounts? On the one hand, a lot of people use them as primary accounts, provide accurate personal information, and conduct their personal affairs thereby. (I am one of them - my basic email account is at Yahoo.) On the other, an account can be opened up with absolutely fictional information, e.g. 'Your Nightmare' residing in 'Nightmare City'. Surely someone who opens up an account with no personal reference of any kind does not have any expectation that such an account is private. 

The distinction is important. As it happens, not unsurprisingly, every case of harassment, stalking, false identity, etc. that I worked on after 1995 was perpetrated through a phony (i.e., clearly fictional personal information) e-mail address. The Gilroy case was not exceptional in that regard.  I began with it for other reasons. The Gilroy police had sat on the complaint for too long. More than 90 days had passed, and the back up data that had contained the IP information had been routinely erased. So it was not possible to make progress. 

It was the response of the Yahoo representative (lawyer or paralegal, I suppose) that makes the encounter memorable. I can still recall the smugness, even gloating, with which we got the news that Yahoo no longer had the relevant information. Even though the warrant summarized the obnoxious harassment to which the victim had been subject, Yahoo felt a sense of triumph that it had successfully defended the privacy of an account holder who had identified himself only as 'Your Nightmare'. (I say Yahoo because it was by miles the most pain-in-the-ass company we worked with, as to attitude. They all insisted on warrants, which was reasonable even if we could have argued about it. But the Yahoo personnel were true believers.) 

That annoyed me more than a little. There was a realio, trulio flesh and blood person who had been badly victimized by this cyber phantom. It's one thing to take a stand based on principle (although having principles doesn't mean they have to be asserted always and everywhere.) This I understand, It's quite another to align yourself emotionally with the culprit.That I do not understand. I was sorely tempted to pass along the Yahoo representatives' phone number to the beauty shop owner, so that she could contact him directly and dramatically further his education. There's no law against that. However, my charter was reacting to situations that endangered the public safety, not redressing private wrongs. That's sometimes a fine distinction, but one I took very seriously. So I bit my lip and reported to the Gilroy Police that we had come to a dead end.

(That did not entirely conclude the matter, however. The detective in charge of the investigation dropped by the residence of the ex-boyfriend suspect and told him of the outcome. He also told him that the Department had advanced considerably up the learning curve as a result of the investigation and would react with a lot more efficiency if the harassment continued. The ex denied any involvement. Nonetheless, the phone calls stopped, abruptly, and were not resumed. So I'll count that as a success.)

The essential anonymity of the Internet creates all sorts of possibilities for anonymous, rather cowardly revenge. I was involved with three cases, years apart, that were amazingly similar in a number of essential respects. The first occurred in the mid 90's and involved an MIS employee who'd been discharged from Trimble Navigation due to repeated acts of sexual harassment of an attractive co-worker. He was fired. She took a leave of absence to quiet her nerves. She was back in about three months.

A few days later, shortly before the books were to be closed for the quarter, someone entered the accounting system by means of a phone modem in the sector in which the victim employee worked, made a microscopic change to one of those ultra-long Unix commands - as I recall, changing a capital 'S' to a lower case 's' - and the Trimble accounting systems all over the world crashed. The company estimated the cost of reconstructing its financial statements as about a quarter of a million dollars.

This case occurred in the early to mid 90's and was a surprisingly easy investigation. I remain continually amazed at how persons who commit criminal offenses underestimate not so much the intelligence of the victim/detective, but the amount of information available about the crime itself. They seem to forget that ordinary people are capable of putting two and two together.  In this case, the modem at Trimble had logged the time of the phone contact in which the code alteration occurred, but not the phone number from which it originated. So far, so bad, as far as deducing WhoDunIt. But what the culprit had overlooked was the subtlety of the change in the program code. He was one of only a half-dozen persons affiliated with Trimble who knew enough to wreak that kind of havoc, and he was the only one not still employed by it - fired, in fact, under circumstances that could easily lead to an act of revenge.

The suspect lived over in Scotts Valley. I don't know whether we obtained a warrant or not here. It would have been a no-brainer, given the limited number of suspects and the motive. Phone toll records are not within the ambit of a 'reasonable expectation of privacy', since the phone company (i.e., a non-privileged third party) is fully aware of what they are.  So it is possible the records were obtained by a simple letter request. In any case, one way or another, we obtained the suspect's tolls - and, lo! right there in the midst of them was a phone call to the Trimble line that had been accessed, at exactly the moment when the code alteration occurred. Case closed - the suspect became a defendant. 

Since trial was both hopeless and embarrassing (this guy certainly did not want details of his sexual obsession, which was an element of proof since it was directly relevant to motive, aired before 12 strangers in open court) - the case ended with a plea. Trimble went on record as NOT wanting the defendant to go to prison, which might otherwise have been a real possibility given the amount of the damage. He ended up doing several months in the county jail and paying substantial restitution.

One thing about the case has always perplexed me. The defendant was a newlywed at the time he committed the offense. His wife was pregnant with their first child. By the time of the sentencing, 15 or so months later,the baby was nearly one year old. With my concurrence,  the court showed the guy some mercy in permitting him to surrender and begin the sentence after the holidays, so he could celebrate his daughter's very first Christmas at home. One would have thought that this was the time to let bygones be bygones, and move on with life. Instead, he was so vindictive/obsessed that he pulled this cowardly stunt to get the victim of his earlier harassment fired. Strange stuff. It is hard to believe this behavior did not become an issue in his marriage, but I'll never know. I never heard from him again.  

The related case occurred a few years later and it is really - really - strange. In fact, I use it as my illustration as to how difficult and counter-intuitive a criminal case can be, when someone with a little intelligence and cunning is being deliberately evasive. So fasten your seat belt.

The perpetrator had been fired from his MIS job for sexual harassment. With some care, he plans his revenge, against the woman he harassed and the man who corroborated her account of misconduct. Here's how he does it.

Step one is to fabricate an exchange of emails between the pair to whom he wishes to do harm. In the first, the man indicates he is sharing a fascinating piece of video porn with the victim-woman, which video is in fact attached. The woman responds with enthusiasm and interest, and they banter on for a while. None of this ever happened, of course. It's the perp acting entirely on his own as playwright and director. But the video was entirely real. The way the case went, I never had to watch it. But the investigating officer told me it was a really sickening thing, involving vomit, coprophagy (look it up), the sort of stuff that makes you jerk your eyes in the opposite direction and wish you had been faster. Truly vile. 

Step two is to hack into the e-mail database of the former employer and leave this exchange in e-mail archives.

Step three is to create an e-mail account on Hotmail, Gmail or some such, as to which the perpetrator is (apparently) completely unrelated. 

Step four is to buy a product from his former employer, in some way that does not trace back to his own credit accounts. (I candidly forget whether there'd been a local cash purchase, or from a PayPal account, or even a credit card in a fictitious name with a small limit - in any case, something like that.)

Step five is to wait a few days, then make a complaint, via that unrelated email address created in step three, about some minor warranty defect in the product. The company will of course respond promptly with a reply email to the same address.

And then - finally! - the coup de grace - step six. The perpetrator attaches that fictitious email exchange he created in step one to the company reply. He then emails his former employer in the outraged accents of the morally upright. He made (he says) a routine complaint about a warranty defect, and by some computer malfunction or keystroke error, this lighthearted email exchange about this incredibly nauseating porn video (plus attached video) had been sent to him in response. What sort of people do you have working there? he demands to know. This is horrible. I demand action!

And on the seventh step, our perpetrator rests, confident that some sort of harsh consequence will be visited on the twin objects of his vindictive wrath - reprimand, counesling, maybe (with luck) termination. Revenge, a dish best served cold, is maybe even sweeter when prepared with a recipe this complex.

Of course it didn't work out that way. Sociopathy is an interesting thing. As clever as so many are, over and over, sociopaths over and over fail to anticipate what, for want of a better word, may be called 'normalcy'. I think our perpetrator actually thought company management would take this 'customer' complaint at face value, call in the offending parties, and read them the riot act. Nothing of the sort occurred. Management was utterly baffled by the e-mail, and summoned the two involved parties not to read the riot act, but to figure out what the hell was going on. In the course of getting to the bottom of the affair, the question naturally came up as to whether there was anyone who had a grudge against the two, and who might have had access to their email accounts. The harassment victim and the witness looked at each other, and said, as one, 'Perpetrator!' - whom we can now rename 'suspect', for that is what he had just become. The police were notified that a criminal intrusion had likely occurred into the company's computer network. 

I no longer recall whether the warrants that were issued were 'kneebone's-connected-to-the-hipbone' sequential stuff, or based on the uniqueness of the suspect's motive and opportunity. In either case, issuance would have been routine. The last one was a residential search warrant for the suspect's home, resulting in the seizure of the suspect's home computer. The case was fairly good before the computer had been examined, but the status changed to 'untriable' shortly thereafter - for the suspect, God bless him, had kept the files as trophies, doubtless for gloating purposes. He learned the sad truth that gloating is much like laughter. He gloats best who gloats last.

As vicious as this act of cyber slander was, the prosaic reality was that no actual harm befell anyone. So the case was another one in which extended imprisonment was not called for. The suspect (renamed now 'defendant') did a few months in the county jail. I did get one extra iota of emotional satisfaction at the sentencing hearing. It was necessary to describe this whole convoluted, somewhat amazing affair, several times before the sentencing judge understood it. (The investigating officers had had the same problem with me when they first presented the case.) The defendant was sitting to my immediate left beside counsel. With each iteration, he sank lower and lower in his chair, trying hard to blend into the cherrywood. There were a half-a-dozen inmates from the county jail waiting their turn. They ended up staring at him collectively with an unbelieving, icy contempt - and, you may believe me, there is no icier contempt than prisoner contempt. 

These first two cases had one other interesting feature in common. Both defendants coincidentally happened to answer the door when the police showed up with the warrant. Both instantly turned white, walked to the bathroom, and vomited. Both, in short, were rather contemptible cowards. The second, the e-mail hoaxer, also had a criminal record. He had been convicted for telephone harassment, a very, very unusual charge. His victims in this case were evidently not the first he had tried to harm anonymously. 

Which is a natural segue to the last of the three. The victim here was another woman, who had recently changed jobs. She came to work one Monday, and found that someone had used her email account to distribute to everyone in her new office, a message from her to a lesbian lover, thanking the lover for a marvelous, just concluded weekend and describing in explicit, graphic detail the various sexual acts that had been performed. Not that there's anything wrong with that, but the victim was not in fact lesbian, hadn't been anywhere that weekend, and the erotic acts were described to virtual strangers in a way that would have embarrassed any one. 

This case, like the others, traced to another male, a co-employee at the former employer, who nursed some sort of grievance against the victim. In addition to the creation of a fictional dialog, this incident had one other striking similarity with the e-mail hoax case. The suspect here also had a prior conviction for phone harassment. In well over 20 years in criminal practice, these were the only two persons I encountered who had been convicted of that rarely charged offense. They had both used the Internet to perpetrate another piece of anonymous aggression of a nearly identical type. Curious.

I'd like to inform the loyal reader how the prosecution turned out, but in this case it isn't possible. The perpetrator had left the state about the same time he blanketed the email system of the victim's new company. There was no felony charge that applied. (False impersonation might at first seem applicable, but an element of that charge is an intent to defraud, i.e., theft of some kind. Clearly, there was no thieving intent here, just vicious, slanderous malice.) There are misdemeanors that apply, but no one extradites for misdemeanor prosecutions. In fact, I doubt very seriously that we would have extradited even on a minor felony. The conduct was obnoxious, but not that much harm had been done, particularly after the culprit had been identified and the victim could tell her new associates what in fact had happened. So the outcome was simply that a misdemeanor warrant went into the system, where it probably still remains, a mine floating quietly beneath the water if the defendant ever returns to California and is unlucky enough to be stopped by an unusually alert traffic cop. 

So what to make of all this? I didn't begin this to draw any moral. These are just stories, anecdotes. The idea is simply to present them, and let whoever reads them draw what conclusions make sense. So . . . no moral - but I do have a comment or two.

It seems to me that what the Internet has changed is not so much notions of privacy, but the degree to which a great portion of ordinary life, once private, now is public. The change is obvious for Internet users. The bills that once were paid by cash or handwritten check are now paid electronically. The personal letter, even love letter, once sent in a sealed envelope, now travels from one server to another over innumerable routers. But even people who have never heard of a computer find their purchasing habits and life style showing up in one database after another. It's a larger fishbowl, and brighter.

So it is that the government has all sorts of new and scary means to monitor the lives of ordinary citizens. But it is also the case that anti-social persons have all sorts of new and scary means to victimize ordinary citizens. How any particular individual sees this altered landscape depends on whether he sees government as a threatening force or a protective one - whether he is more afraid of public power or personal victimization.  None of the crimes I recounted would have been possible in the pre-Internet age. It's not possible to spin an elaborate plot to slander someone with a contrived email unless the victim also has an email account. Clothe the preSpence of the perpetrator in too much privilege and the criminal justice system becomes one-sided (even more so than it already is). The offender violates the exact same matrix of rights in which he subsequently cloaks himself to avoid detection. Since the State has taken over all of the traditional forms of tribal and family justice, and in fact made such retributions illegal, it seems to me this is unfairly one sided. But maybe my own bias is showing here. Perhaps I am too much the prosecutor in this.

The ultimate bottom line for me is that the acquisition of knowledge, even the collation of mere fact, is itself intrinsically neutral. It can be used or misused. It can prevent epidemics or to facilitate mass racial arrests. In terms of law enforcement, and security, it's not possible to find a needle in a haystack without first assembling the haystack. I began writing this on May 5th, 2010, two days after the arrest of a suspect on a failed bombing attempt in New York. The arrest, only 53 hours after the discovery of the bomb, is the result of spectacularly good police work. However, the principal data on which the investigators relied seems to have been the output of the surveillance cameras that now are situated everywhere in public places, and the database of cell phone calls made during the relevant time period. Cities such as London and Paris now have cameras everywhere. The suspect is under arrest because in plotting his crime he could not avoid the public eye, the public ear. 

Obviously this is a positive outcome. But the possibilities for abuse and misuse are equally obvious. In the realm of electronics, in the world of cyberspace, any given day is always day one, i.e., the state of technology, no matter how apparently advanced, is capable of infinite improvement. However sophisticated the surveillance cameras in 2010, they are crude compared to what will be available in 2011, and the same is true of search engines, face and voice recognition software, and all the rest. It will shortly be possible, if it is not already, to feed a photograph of a particular individual into a search engine, and trace his or her progress across a major city. The public world is going to become ever more public, not out of malice or some fiendish government scheme, but by the nature of technology itself. I wish I had more to say about this than yada, yada, yada we-have-to-be-careful, but there isn't much more to say.

I am going to close with one last anecdote. Back in the 90's, I received a referral from Massachusetts about some truly obnoxious behavior. It seems a coed in one of the innumerable universities-colleges that dot the Boston-Cambridge area had rented a room from a reliable old couple who supplemented their income by renting to students. What she did not know was that the husband, a likable grandfatherly type with a twinkle in his eye, had rigged small cameras throughout her bed- and bathrooms. She was taped in all her private moments - shower, bathroom, etc. It did not end there. The old geezer was a member of a video club, made up of similar twinkly eyed types located all over the country. The members would tape (sic - that's how long ago this was, before digital video) their female guests in all their glory, then trade and compare them. I don't know how the victim found out about this, but she was outraged, as was the investigating officer in Massachusetts. The case connected to Santa Clara County in California because either Yahoo or Hotmail email accounts were used,  both of which are located there.

This was another case that went nowhere, as frustrating as that outcome was. California has peeping-tom statutes, as I suppose does Massachusetts. But the offenses were misdemeanors only. Search warrants can only be obtained for felony offenses. We could have ginned up a creative theory of 'conspiracy to commit a misdemeanor', but there were neither information nor resources to expend in going further. (There were no details about the club, only vague and hazy outlines.) So the young woman was left to her civil remedies, which I do hope she utilized. It would have been a humdinger of a small claims action. Plus, as I have noted, the pleasures of embarrassing a perpetrator in open court are not inconsiderable.

I closed on this note because this incident occurred maybe 15 years ago. There are several generations of improved video technology available to twinkly-eyed old perverts, and the whole digital universe at their disposal. There is no hope of reversing this trend, nor would it be a good idea if we could - too much social benefit. But it does mean that the issues this relentless publicism raises have to be perpetually watched and constantly reevaluated. That advice is something of a cliche, but in this case the cliche is meaningful. Over and out. 

    

'Snapped'

    A commentator on MSNBC suggested last night (11/05/09) that the horrors at Fort Hood occurred because the perpetrator, the Army psychiatrist, had 'snapped' due to the stress of doing post-combat counselling of combat soldiers. So another mass murder has occurred because someone snapped. Shortly after Columbine, I recall someone on a call-in show insisting that society could gain nothing from the disaster until someone figured out what had made the two youthful murderers 'snap'.

    An interesting word, 'snap', in this context. The notion it conveys is of a personality under great, perhaps unbearable stress, who 'snaps' in the manner of a steel girder or two-by-four when the pressure becomes too much. There's a kernel of sympathy at the base. Maybe you, maybe I, maybe anyone, would 'snap' if we were subject to the same conditions. So maybe anyone, everyone might succumb. To that extent, moral judgment becomes blurred, maybe even suspended, in a warm blur of empathy. How can we blame the gun wielder for being overtaken by fate?

    There's only one small problem with this metaphor. It doesn't apply.  The Army psychiatrist, the Virginia Tech zombie, the Columbine killers, innumerable others - the process is remarkably similar in all these cases, and it has nothing to do with snapping. What it does have to do with is a morbid fascination with the commission of a spectacular, self-glorifying act of violence, that a long, systematic process of self-brutalization and enurement transforms from a horrific fantasy into an act that can actually be done in real, concrete life.

    The Columbine case is typical and illustrative of the process. The two young thugs spent more than a year, planning, scheming, and daydreaming about their rampage. To be sure, some of this time was necessary to procure firearms and fabricate explosive devices. But the vast majority of the time and emotional energy was spent by the two, closeted together, playing video games, talking, discussing, gradually making what seemed incredible and obscene, practical and commonplace. (The actual 'plan' was incredibly juvenile. The two killers were dead by each other's hand less than 15 minutes after they began.) Over time, the real human presence of their classmates fades and blurs into the cyber reality of video game victims. Gradually, systematically, they nurse the trivial slights and insults they experience into a cause for righteous anger - they infuriate themselves. (Neither boy was a victim of bullies. The leader was a lifelong bully himself.) Over a year, what at first was the aeriest fantasy of revenge becomes something they might do, then something they could do, then something they will do. An unspeakable crime becomes ordinary, acceptable behavior.

    It takes a long, long time to get from first period homeroom to mass murder.

    The Army psychiatrist went through the same process, immersing himself in the phenomena of suicide bombing and extreme Islamic fundamentalism. The metaphor he used may be different than Columbine, but the process of systematic de-sensitization, self brutalization, and the like, is identical. The same may be said of the Virginia Tech killer and all the others. None of them 'snap'. One and all, over a significant period of time, they work the petty annoyances and frustrations of everyday life into causes for rage, dehumanize the class of victims who will become their eventual targets, and finally act. The final impetus may appear random (e.g., deployment to Afghanistan), but the process is anything but. 

    In short, these are anything but impulsive crimes, perpetrated as the result of great stress. They are repulsive, deeply premeditated acts of utter viciousness, intended to satisfy a self-indulgent morbid fantasy and the narcissistic demands of a pathologically inflated view of self.  Neither the acts nor the actors are entitled to the least bit of sympathy. 

    So for my money, save your tears and sympathy for the victims of these appalling acts - for these people actually do experience a 'snapping', of the ties between husband and wife, between parent and child, between friend and companion, of life threads that were intended to be spun out far longer and spread wider than they are. "Spare me your expressions of regret" (a line of Robert Bolt's from the movie Dr. Zhivago that I really like) for the criminals. Trust me, they have already lavished all the sympathy on themselves anyone could ever hope for.

    (P.S. Some readers may have noticed the absence of proper names in the essay above. It's not a coincidence. Years ago, I attended still another seminar, this one in evidentiary law. The presenter, a DA from some county in Southern California, was a very funny guy, with an Eastern seaboard accent. Most his stuff was based on street hypotheticals, encounters between cop and suspect. But every once in awhile, he'd touch on real cases. He always spoke indirectly about the perpetrators of these - 'the Heisman Trophy wife killer' or 'the people who came to Sharon Tate's house.'

    In the midst of all this, he suddenly paused and became dead serious. "I never use the proper name of a murderer," he said. "Never." This expression of moral purposefulness was all the more striking, coming as it did in the midst of what was basically a light hearted presentation.

    In any case, it seemed like a good principle to me, and I've tried to stay with it.)