Steven Silverman's blog

Eugene Volokh, of The Volokh Conspiracy got this request from Michael Rosman at the Center for Individual Rights writes:

Like many of your readers, I was intrigued by your recent post concerning the conviction of individuals for taping or videotaping police officers while the officers are doing their job in public. Some of your readers thought that there may be some federal constitutional problem in laws that make such tapings illegal. My employer, the Center for Individual Rights, is interested in possibly representing individuals who want to challenge such laws as a violation of constitutional rights.

Ideally, a potential client would be a person or organization that legitimately is concerned about being arrested for taping police officers, or who would engage in that conduct were it not for a law making it illegal. Obviously, it would have to be in a state where the law makes that concern reasonable. (Your post referred to Massachusetts. We believe that Pennsylvania may be another such state, although the law there is more in flux.) Someone who has already gotten in trouble for violating such a law is fine, but we would not be the best lawyers to represent someone currently involved in an ongoing criminal or civil proceeding in state court.

If any of your readers are among those who would like to challenge a law of this kind, or can help us identify the states where such laws exist by giving us cites to relevant statutes or cases, (s)he can email me at rosman [at] cir-usa.org.

I'm about to dive into a three-part series in The Philadelphia Inquirer investigating heavy-handed policing tactics in suburbia.

It makes me proud that my hometown paper has the balls to allow writer Mark Fazlollah to delve so deeply into a chronically underreported social problem.

Radley Balko, one of our favorite fellow constitutional fetishists, has an informative FoxNews.com piece on the legality of videotaping police encounters. For those of you who are unsatiated by our FAQ about videotaping police, this should hit the spot.

I wonder: Aside from law-breaking officers, who benefits from laws prohibiting the videotaping of police officers?

If anyone has any lingering doubts about why you need a lawyer if you're under police investigation, check out this revealing video of Mike Nifong's testimony before the North Carolina State Bar disciplinary committee.

For the video impaired, here's the transcript:

Committee Guy: Do you recall making statements to the media in the early part of this case about the players' wall of silence or something to that effect?

Nifong: Yes, sir. I do.

Committee Guy: And do you remember making statements about if they didn't do anything why did they need a lawyer?

Nifong: Yes, sir. I do.

Committee Guy: And other matters about them exercising their right not to testify. do you remember making those statements.?

Nifong: Um, I not sure specifically about testifying. But I do remember making statements to that effect. Yes, sir.

Committee Guy: And are those statements you could have made to a jury?

Nifong: No, sir. They are not.

Committee Guy: Did you think through that process before you made those statements back in the beginning of March?

Nifong: Clearly not as much as I should have...I was certainly not intending or attempting to make improper statements, but I think clearly some of the statements I made were improper.

Committee Guy: Were violations of the rules of professional conduct?

Nifong: I would have to say so at this time. Yes, sir.

Is it any surprise that "Nifonged" is now a popular neologism?

On Thursday, Scott and I attended a book discussion, signing and reception hosted by the Open Society Institute. The event featured Friend-of-Flex, Professor Angela J. Davis speaking about her new book, Arbitrary Justice: The Power of the American Prosecutor. In light of the Nifong imbroglio, the timing of her exposé is perfect.

As the former director of the esteemed DC Public Defender Service, Davis is a master player and observer of the vicious game that is the U.S. criminal justice system. By her own admission, she's "obsessed with prosecutorial power."

Her intent with Arbitrary Justice is to show how prosecutors have become the most powerful officials in the criminal justice system. In particular, Davis digs into the brutal arbitrariness of prosecutorial power and the utter lack of accountability for rampant prosecutorial misconduct.

The Nifongs, Davis insists, are common. The real story behind that case is that prosecutorial misconduct happens all the time and is rarely exposed. A disproportionate number of the victims are people of color; all of them lack the resources of the falsely-accused Duke lacrosse players.

Despite her intimate knowledge of the system, Davis seems stunningly devoid of cynicism and proposes practical prescriptions for change. She insists that folks who become prosecutors are not necessarily consciously racist or prone to evildoing. When she declared that her book wasn't meant to be an attack on the prosecutorial profession, someone hilariously heckled, "I want my money back!"

Davis is correct: Prosecutors aren't inherently bad; the system is bad. And bad outcomes thrive in any system where incentives are twisted. Such is today's criminal justice system, which rewards prosecutors who win convictions more than those who competently administer justice for justice's sake.

Davis identifies the major contributors to the system's dysfunctions:

Mandatory Minimum Sentencing
While prosecutors' plea bargain power has always provided them with lots of control over the outcome of criminal cases, their power to extract a plea -- and thus avoid a trial -- is intensified by the threat of mandatory minimum sentences.

Ironically, mandatory minimums were passed at the state and federal levels with the intent of eliminating sentencing disparities. The effect has been to shift the sentencing discretion to prosecutors without eliminating disparities.

Mandatory minimums have also been the driving force behind the exponential incarceration rates of the past two decades. The prosecutors haven't gotten nastier; their plea extracting tools have become increasingly menacing.

Political Prosecutors
A typical campaign for state attorney general involves a "tough on crime" Democrat facing off against a "tougher on crime" Republican. The electorate then votes based on their political affiliation.

Though these attorneys general are elected officials, few citizens know who they are or how they manage their offices. Moreover, because prosecutors have sole discretion over who gets charged and when, politically-motivated prosecutors frequently choose targets to enhance their political profiles rather than in the interest of justice.

Lack of Transparency & Accountability
Prosecutorial misconduct is widespread and unchecked. Davis notes that "Much of what passes for legal behavior might in fact be illegal, but because prosecutorial practices are so rarely challenged, it is difficult to define the universe of prosecutorial misconduct."

Ken Armstrong and Maurice Possley, the authors of a 1999 study of prosecutorial accountability concluded:

"With impunity, prosecutors across the country have violated their oaths and the law, committing the worst kinds of deception in the most serious cases...They have prosecuted black men, hiding evidence the real killers were white. They have prosecuted a wife, hiding evidence her husband committed suicide. They have prosecuted parents, hiding evidence their daughter was killed by wild dogs.

"They do it to win. They do it because they won't get punished."

The problem, as one editorial described it, "would be like trying to count drivers who speed; the problem is larger than the number of tickets would indicate." The problem is also difficult to quantify, because most of what the prosecutor does is behind closed doors. On the rare occasion when misconduct is discovered, judicial review is extremely limited.

"Of the eleven thousand cases of alleged prosecutorial misconduct examined by the Center for Public Integrity, the appellate courts reversed convictions, dismissed charges, or reduced sentences in just over two thousand. However, in these cases, most of the prosecutors suffered no consequences and were not held accountable or even reprimanded for their behavior."

Davis also points to another mundane reason why prosecutors are rarely held to account: Few defenders are willing to "snitch" on a cheating prosecutor. Making nice with the prosecution is generally in their clients' best interests. After all, it won't be long before they have to beg the same prosecutor to cut a better deal for their client.

It doesn't take a game theoretician with a PhD to appreciate how cheating would flourish in a criminal justice system where unscrupulous prosecutors are virtually immune from punishment and are rewarded with promotions and career advancement.

Reform, Davis insists, should at minimum, seek to eliminate the arbitrary exercise of prosecutorial discretion and establish incentives to strengthen the existing mechanisms of prosecutorial accountability. And she does the heavy lifting of proposing practical solutions. An essential part of her reform plan is to educate the public about the duties and conduct of their elected prosecutors.

It's too bad that the public only seems to pay attention when their prosecutors falsely indict innocent rich white kids for raping a black woman. Then again, if this incident lights sparks of nationwide prosecutorial reform, please pass the lighter fluid.

In a classic episode of The Simpsons, Marge joins the Springfield Police Force. On her beat she spots Homer's car triple-parked across three handicap spots. He is also buying booze for some teenagers.

As Officer Marge writes Homer a ticket, he snatches her hat and ridicules her. A crowd forms to watch the spectacle, and she has no choice but to arrest Homer. As she handcuffs him, Homer refuses to "flex" his rights in a perfectly hilarious way.

Today's New York Times has a great piece chronicling the heartfelt and exhaustively detailed confessions of sundry fools, thugs, and sexual predators who, like Homer, refuse to remain silent when it's in their best interests.

Frankly, I'm not tormented that most these folks decided to waive their 6th Amendment right to counsel. But I have some eye-rolling sympathy for the woman indicted on prostitution charges after writing in her confession form "I'm not a prostitute. I just hook guys up with girls if they want them."

Too bad she didn't practice what criminal defense lawyer Stacy Richman advises and every Flex Your Rights member knows: "You have a right to remain silent. Exercise that right."

Daniel J. Castelman, chief of investigations for the Manhattan district attorney, nails the precise reasons why people confess.

Almost nobody doesn’t talk. And the reason for that is that people think they can either talk their way out of it or mitigate the crime. It’s human nature.

As for the critics who condemn Flex Your Rights for promulgating information that might allow criminals to go free, please don't blame us; blame the Bill of Rights.

As you may have heard, FyR Associate Director Scott Morgan and I have both been named Time Magazine's Person of the Year."

Okay, I'm being partially silly -- but Time's all-inclusive award is an homage to the potent new streaming video technologies that FyR has embraced. In 2006 our first video, BUSTED: The Citizen's Guide to Surviving Police Encounters, went "viral". Between BUSTED's presence on Youtube.com, Google Video, Myspace Video, and numerous other sites, we've exceeded 1 million viewers, and we're reaching thousands more every day.

When we created BUSTED over three years ago we knew the film would find an audience, but we never anticipated a measurable outreach opportunity of this size. The best part is that our new online viewers absolutely love the film. BUSTED has consistently commanded 4-star ratings on Youtube and Google video and we're currently ranked #80 Top Favorites of all time on Youtube.

Needless to say, it's now easier than ever for you to share this information with your family and friends. Our recommended online version of BUSTED is available here, and you're welcome to forward it far and wide.

One of the 20th century's preeminent economists and advocates for individual liberty died yesterday at the age of 94.

I first saw Dr. Friedman in a PBS video on free markets played in my high school economics class. What set the man apart from other brilliant thinkers was his uncanny ability to clearly communicate his ideas into simple terms. That attribute enabled his ideas to play out in an international arena.

We were fortunate to earn his endorsement of BUSTED, which can be seen on the back of the DVD. Interestingly, he gave us his plainly-worded endorsement based solely on his review of the screenplay. (I hope he took the opportunity to watch the complimentary DVD I sent him, but I'll never know for sure.)

He will be sorely missed and never forgotten.