The California State Bar has posted the stats for the February 2009 bar exam (PDF). The examinees have all discovered whether or not they have passed. The full list of those who passed will be made public on Sunday morning.
The pass rate for this last administration was 33.5%. To put that in perspective, the pass rate for the February 2008 exam was 39.6%; for the February 2007 exam, 36.8%; and for the February 2006 exam, 39.0%. This year's pass rate is the lowest since the 33.4% in February of 2002, and the second lowest since the 28.1% in the Spring of 1987.
Generally, the February bar exam is calibrated to compensate for the July bar exam of the previous year: if the July exam was too "easy", the February exam is made "harder"; if the July exam was too "hard", the February exam is made "easier". Since the July 2008 exam had a passage rate of 61.7%, which is the highest since the 62.9% of July 1997, that may have been an incentive to make this past February administration harder.
On the other hand, the February 1998 exam had a pass rate of 40.0%, so what gives? Perhaps, then, the exams are controlled for number of passing examinees. The July 1997 + February 1998 exams had, respectively, 4,581 and 1,558 people passing, for a total of 6,139 qualifications. The two most recent administrations produced 5,330 passes in July 2008, and 1,368 in February 2009, for a total of 6,698 qualifications. This indicates an increase of less than 9% in the number of qualifications, which seems to track the population growth of California.
After five minutes, I am reasonably certain that the receptionist's beverage offer has been rescinded. After twenty minutes, Elisa appears in the reception area. Although there is no one chasing her, she looks harried, as though she was pursued from her office by a pack of foxhounds. She also sounds cranky. "I'm Elisa," she says, barely looking up from her BlackBerry. "I don't know why they told you to ask for the partner," she scoffs derisively. "I'm handling the document review." She turns around and starts to walk away. Though she has neglected to use one of the common expressions indicating as much, such as "Come with me" or "Right this way," I deduce that I am supposed to follow her.
I can tell that Elisa is younger than I am, but it takes me a moment to realize just how much younger she is. She has a hardness that makes her seem older, and her clothes -- while clearly expensive -- look as though they were picked out by her overly conservative grandmother. She also appears oddly mismatched, like her features were gathered from a collection of spare parts. Her lips are thin and fixed in a sour expression, which feels oddly familiar to me, although I can't quite place it. When we stop to wait for an elevator, another female associate, who is young and pretty, wanders up and stands silently nearby. Elisa looks her over with a disgusted glance, and it hits me: Elisa resembles Dick Cheney.
We get off the elevator and I follow her into the warren-like hallway. "Actually," she continues seamlessly, as though we had been talking the entire time, "I'm basically handling this entire case. I'm, like, unbelievably busy. And we've had one problem after another with these temp attorneys, so it's been, like, such a nightmare." She sighs irritably. "I had to fire one last week because he was, like, totally incompetent."
"How so?" I ask, hoping to learn how not to cross Elisa. But she looks at me strangely, and I realize that we are not having a conversation; Elisa is just thinking out loud. She shifts gears. "Have you done document reviews before? You've done document reviews before, right?" she says. It is more of a command than a question. "Because they told me that you had experience doing document reviews, and I really don't have time to hold anyone's hand."
Something about her severity makes me want to compensate, to offset her total lack of geniality. "So, Elisa," I ask her in the singsong tone I might use with a shy puppy, "it sounds like you're running the show here. Can you tell me about the case?" I expect her to seize the opportunity to show off her expertise, delight in the details she has mastered, display the familiarity that most overly-involved associates flaunt with pride. Instead, she grunts impatiently. "I'll give you a binder that explains the coding," she says. "You don't really need to know more than that."
Finally, we arrive at a closed door. Elisa opens it, revealing a windowless room filled with computer screens. Most of them are manned by attorneys, some of whom spin around, blinking dazedly at the interruption. Others appear catatonic, registering no response. I almost expect someone to shout "Close the door!" like the old patrons on Cheers did when reality threatened to penetrate their cocoon. No one does. They are docile and glassy-eyed, and turn back to their screens before I finish saying "hello."
"Okay," Elisa says brusquely, grabbing a binder from a stack in the corner. "This is the review protocol. You're going to be tagging for these 32 categories. Read through it, and if you have any questions after that, you can e-mail me." She scrawls her e-mail address on a piece of paper. "You know how to use Kroll Ontrack, right?" I do, but I'm not sure I would admit it if I didn't. "It's been a while," I say. "Do you want to just do a quick run-through?"
Elisa exhales wearily, making a sharp hissing sound that causes me to cringe involuntarily. Clearly, she does not want to do a quick run-through. Nonetheless, she plops down at an open computer and clicks into the database, whizzing through its features so quickly that I realize I will have to look through it on my own later, when I have time to reacquaint myself with the "review tool," as she calls it. While Elisa zips through the program, I study the room and its occupants.
...
Elisa finishes her lightning review and stands up abruptly. "Okay," she says. "All set?" It doesn't sounds like a question, but I nod anyway. She turns to leave, but spins around just before she reaches the door. "Don't redact anything yet," she says sternly. "If you find something that needs to be redacted, put it aside and let me know. I don't want you to redact anything until I see how you're doing with the review."
"Got it," I say. "Thanks." She closes the door, and I sense a collective sigh of relief. No one says anything. After a few minutes, an older man, who is wearing carpal tunnel braces on both wrists, looks at the door, as if to make sure that Elisa is gone.
"Bitch," he mutters, and turns back to his computer.
The Stud has been fortunate not to have had quite the same experience. However, while the staff at the firm the Stud is occasionally placed at has been, for the most part, pleasant to work with and for, there are far fewer projects in Los Angeles than in New York, whence "Notes from the Breadline" hails.
Loyola Law School switched to a closed book exam format just in time for the Class of 2008, figuring that it would be better preparation for the bar exam. While it is true that LLS's bar passage rates went up for the July 2008 exam, the same was true of all other law schools. In fact, bar passage rates went up significantly across the nation. The Stud has heard it said that the reason was that the multiple-choice Multistate Bar Exam (MBE), which is identical for all jurisdictions, had a very high passage rate. That, in turn, may be due to the fact that so many experimental questions ere thrown out.
In any case, the jury is still out on whether or not closed book exams improve bar exam performance.
Above the Law does make one good point, though:
Clients generally don't need you to be able to quote statutes and regulations off the top of your head (bar examiners, that's a different story).
The parenthetical sentiment is exactly why many schools have switched to such a format. Higher bar passage rates help a school's ranking, and are thus an important goal for many competitive law schools, particularly in the second tier.
In Criminal Procedure, the "automobile exception" is one of the exceptions to the "requirement" that a person may not be searched, or his possessions seized, without a warrant. The history of the Fourth Amendment shows that the point was not so much to require a warrant, but to make sure there is probable cause. The warrant requirement is designed in part to require pre-enforcement judicial review. However, there are certainly situations in which obtaining pre-enforcement judicial review may unreasonably hinder law enforcement. The 20th Century has been particularly productive in terms of the development of exceptions to the so-called "warrant requirement".
The "automobile exception" to the "warrant requirement" states that when an officer stops a vehicle and arrests the driver, he may search the passenger compartment, including all containers even if closed. New York v. Belton (1981).
According to the Supreme Court, inventory searches, as administrative proceedings, do not require probable cause. So long as an inventory search is conducted in good faith and follows a standardized procedure, it is permissible, and evidence turned up during such a search is admissible against a suspect in court.
So, if police want to search your car, and they already have enough probable cause to arrest you, all they have to do is arrange for your car to be transported to an impoundment yard, where a very thorough inventory search, for the purpose of making sure that everything is accounted for when you are released and get your car back, is then to be conducted.
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) was supposed to clean up the bankruptcy scene. Even in 2005 it was clear that the effect of the act would not be to limit lending, but to increase penalties for failures to repay debts. I suppose one rationale would have been that, fueled by the dot-com craze, people had become profligate and unwise in their spending, such that bankruptcy abuse was becoming common--hence the stiffer penalties. What about the other half of the name of the bill, consumer protection? I haven't heard a lot about that.
And now, there may have been an unintended circumstance: bankruptcies are soaring, possibly pushed along by all those who waited and tried to hold out for as long as possible.
Also, the law's test of a person's ability to pay off debts appears to have failed at one of its goals: steering debtors from Chapter 7, which allows people to sell off their assets to repay what they can and start again debt-free, and into Chapter 13, which places the filer in a repayment plan that can last for years. Chapter 7 cases accounted for 69 percent of all filings in the past year, compared with 71 percent in 2004.
So far for America being the Land of Second Chances.
Like big law firms, the Los Angeles District Attorney's Office has instructed those to whom it had just extended offers a week or two ago that they will be starting in June. This is starting to sound as if the D.A.'s Office may not in fact be able to follow through with hiring these individuals; they seem to be playing for time to get funds to honor the offers.
At least this is not Sacramento, where not only have recently hired deputies been laid off, but so have those hired a year before them. In a mirror image of Los Angeles, Sacramento's deputies have been told their positions will disappear in June.
Most people end up in jobs that have nothing to do with their undergraduate degree. As it turns out, lawyers also end up specializing in areas they may not have studied in law school.
As a case in point, I went down to the U.S. Bankruptcy Court for the Central District of California today, to see what I could absorb by osmosis. I also got to talk with a couple of the lawyers representing the principal secured creditor. The lead representative, who did all of the presentation during the hearing, assured me she had not studied bankruptcy in law school either, and yet she's been in bankruptcy law for about 15 years now.
So the important thing is knowing where to go to learn the law, and, of course, finding clients. Everything else should take care of itself.
Today, the Stud took the first real step toward starting his own practice: filing for a business license with the City of Los Angeles. In the State of California, the only license required to open a law practice is one's bar license. However, the City of Los Angeles requires that entities that do business in the City, including the practice of law, obtain a business license.
The Stud went to one of the offices of the City of Los Angeles Office of Finance. For those similarly interested in starting up, please see the FAQ provided by the Office of Finance. To obtain your own license in person, visit the Office of Finance at one of eight locations.
The Stud felt an queasy excitement in his stomach as he stared at the piece of paper which declares him open for business as a solo practitioner. It's a huge step!
Now, the Stud has heard a rumor that the Santa Clara Law School career services office has begun encouraging the Class of 2008 to look for jobs consistent with their undergraduate degrees. Further, the week after Valentine's Day, the office of career services at Loyola Law School of Los Angeles held a panel on starting a solo practice.
As the time grows closer for the Class of 2009 to graduate and think about the bar exam, here are a few bits of advice I shared with a few friends:
Break down
The bar exam is on the last Tuesday, Wednesday, Thursday of July. On Tuesday and Thursday, you spend 3 hours in each morning doing essays (3 each morning), and 3 hours in each afternoon doing 1 performance test. On Wednesday, you get 3 hours in the morning to do 100 multiple choice questions, and another 3 hours in the afternoon to do another 100 multiple choice questions. Essays and multiple choice questions are familiar formats to us all. The performance test is basically some sort of task, whether it's a memo, a points and authorities, a letter, drafting deposition questions or interrogatories, or the like.
The Essays
This is what BarBri is best at. There are other courses that will teach you the law pretty darn well, and some probably even better; your options include LECC and Flemings, and I believe Prof. Levensohn is hawking Emanuels. I found BarBri's material enough. As long as you stick pretty well to their schedule, you'll get your eyes on enough material to get you ready. Don't feel frustrated if you don't get everything in the model answer; or at least don't let frustration get the better of you. Let it be a motivation to you. You can also look up old questions at the Cal Bar site, which should have model answers as well. They go back quite a few years; you really don't need much past 2000 if anything. The goal by the last few weeks before the bar is to get your eyes on at least 4 essays a day; better is to do 2 essays and outline 3-4 more.
Multiple Choice
The multiple choice section is called the Multistate Bar Exam (MBE), and the MBE for the July 2008 exam was hard. It almost made me want to give up on the bar exam ... almost. BarBri does not prepare you for how hard the MBEs are. However, for some reason the passage rate on the MBE portion of the july 2008 exam was the highest in recent years, and as a conequence all jurisdictions saw increased passage rates on their local bar exams. So don't feel too frustrated when you take them; by the same token, don't get too confident when you take the BarBri mock MBE. Definitely look into the 3-day PMBR if you can afford it. I didn't take PMBR and I passed, but like I said, I was scared stiff by the actual MBE. Some others say that the PMBR questions were harder than the actual MBE; reasonable minds can differ. Again, I don't know that taking PMBR will help, but it couldn't hurt.
Performance Test
The performance test is really a test of how well you follow directions. You'll be given a fact pattern to read, along with instructions, statutes,and case law. You will not need all of the case law, especially as the cases sometimes cite each other. Your best bet is to figure out what the format is, set up accordingly, and fill in the blanks. The July 2008 exam's PTs were memos, so we were lucky. The other thing about the PTs is time management, just as with the essays. It's easier to forget that with the PTs, though, because you may find yourself thinking as you fill in the blanks that you set it up wrong. Resist the urge to restructure the whole thing or replace your reasoning; simply refer to the mistaken exposition and say, "but that does not satisfy the standard, because ..." You'll see this in real practice anyway, especially in court. The examiners don't care if you get the law right or get the right conclusion. They want to see you reason it out, and they want to see that you understand the opposing position, so in a sense, getting something wrong at first is doing it right, as long as you don't do a wholesame replace of whatever you've already got down.
Preparation
Here are a few things I did that helped me, personally:
I forced myself to stay at the library for very long hours, but I didn't force myself to work all the time. I made sure I had time for meals, and I took breaks if I felt too confused.
I refilled my large bottle of Smartwater every night and drained it every afternoon, after lunch, while I was in the library. (Coffee ruled the mornings.)
I made sure I had time to go to the gym at least twice a week.
I always took at least one day off on the weekends, during which I would follow an old personal custom, which is to go to a bookstore and read magazines to catch up on the real world in some small fashion.
I also drew up my own master outline, which I've attached. I compiled it from my skeleton outlines for each subject, and for me, the process of whittling it down to fit on fewer and fewer pages would a terrific learning process. Each skeleton outline was compiled after the lectures; but note that some of the subjects ran 2-3 days.
I was lucky to have my dad drive me to the test center each day. Depending on where you take the exam, be sure you have rehearsed your drive or walk so you know the timing.
Have an analog timepiece with you.
Make sure the last day before the bar exam, Monday, is relatively light. If you feel comfortable enough to take the whole day off, so much the better. Even if you do a half day, don't do substantive work. Instead, do your printing, and skim your outlines or flash cards or what have you.
I never did do flash cards. For me I guess doing the outlines after each lecture was my equivalent.
Prepare your food, or at least scout out your testing center to know where you can find food. Don't do anything exotic--go with food you know won't induce a reaction.
Don't worry about anybody else. Last summer I sat at a particular desk in the LLS library, right in front of the map of the United States, near the double doors upstairs. People thought I was crazy to be near a high-traffic area, but it trained me to ignore ambient noises. It also made me easy to find if people had questions, or if they wanted to go on break. Learning how to handle yourself when you're not the only one in control is very important for another reason: just before the end of the morning session on the first day of the July 2008 exam, there was an earthquake--we felt it all the way out in Century City, although the epicenter was 10 miles east of Ontario--and I just kept going, pausing just long enough to let the earthquake finish up.
Anyway, that's all I've got for now. If you have any questions, let me know, and if you know anyone who can benefit from this, pass it along. Good luck! :)
On Friday 20 February 2009, at 7pm in the Student Lounge at Loyola Law School, Law Law Stud returned for the latest installment of a tradition: Wit of Mandamus V. The Stud proudly performed at and reported from past Wits of Mandamus: Wit of Mandamus IV (his last as a student), Wit of Mandamus III (which he also produced) and Wit of Mandamus II (his first, in which was the assistant producer). Now, with the aid of a Canon Elura 85 DV camcorder, as well as a Canon PowerShot SD870IS, the Stud brings you reportage from the leading edge of LLS social life.
Setting Up
Scott Burstein was sound man for the night:
Catering courtesy of Antreas Hindoyan (center) and Burger Continental in Pasadena, CA:
Next up, Prof. Allan Ides ('79), with son Joel Ides, Prof. Dougherty, and the House Band, played a song he wrote for "the beautiful blonde back there" (quipped Prof. Dougherty: "and also to Mrs. Ides!"), "Beautiful Night":
Showing that the students were also no slouch, Scott Burstein (who also came through as the night's sound man), with Desiree Fowler and John Fowler (no relation), performed Eric Johnson's "Cliffs of Dover":
Showing off again the Loyola Law School student body's collaborative spirit, Sri Panchalam and Seth Weiner joined forces to bring us "Yashantin/Unending Love":
Charisse Castroverde, a last-minute sign-on to the show, brought along friend Jason Johnson to accompany her in a performance of Ida Maria's "Stella":
The first completely non-musical act of the night was John Fowler's "Secret Act: Part II". Since it's secret, the Stud will not show the video.
The next act, Andrew Walsh on the piccolo bass, will also not be shown. Andrew played an original song which he performed as a special treat for the live audience only.
The next performance, by Bill Shafton, has been polished for some time: it is the song with which he proposed to his wife. Get the story and the song in the video of "The Way That I Love You":
The Stud, with the support of the wonderful House Band, performed of Coldplay's "Viva la Vida", unplugged:
Next, for his third and final performance in Wit of Mandamus, Mike Hanna once again roused the crowd with his excellent beatbox, which gets even better toward the end:
Music Director Zack Domb then performed two pieces. First, he played an original composition, "Waiting" (go to 2:15 if you want to skip the lengthy introduction):
The second piece is a reprisal of the first time he performed with Bill Shafton at Wit of Mandamus III, in Jason Mraz's "I'm Yours":
That reprisal led to Seth's own update of his poetry reading:
Returning to a musical milieu, Meryl Chambers performed a spoof on a popular John Mayer song; unfortunately, it may be inappropriate for some audiences, and will not be posted. You had to be there!
Next, Prof. Dougherty renewed his encouragement and support for the Loyola community's artistic endeavors with his original composition, "Pushed Me To It":
The song is available at the MySpace site of Prof. Dougherty's alter ego, JD DeRavin.
The next performance was by Keith Kim, who performed two classical songs, "Nacht und Träume" by Franz Schubert, and "Amor ti Vieta" by Umberto Giordano. The camera had been left unattended while the Stud went on a nature break during the transition between pieces, so while the music had been captured, Keith is nowhere to be found in the frame. Thus, there is no viable video of Keith's performance.
Fortunately, the Stud returned in time to capture the performance of Adrian Rodriguez, who with the House Band brought us Carlos Santana's "El Farol":
Closing out the night, Prof. John Nockleby reminded the audience of the hard-working life of a lawyer in "Professional Responsibility Blues":
As last year, this was a wonderful Wit of Mandamus, and amazing props go to the producers, Dan Ediger, John Fowler, and Julien Kern, and Music Director Zack Domb for pulling it together. Thanks also to Mike Hanna as Master of Ceremonies; Terry Miller on percussion; and Scott Burstein on sound. The turnout was about 160 people or more, surpassing last year, and raising the most money for the Public Interest Law Foundation of any Wit of Mandamus ever. Thank you so much to the audience for the energy and enthusiasm you brought!
The Stud hopes to continue attending these shows, and invites all readers in the Los Angeles area next year about this time to look into attending!
Loyola Law School is not, of course, the only law school to have a talent/variety show (called Wit of Mandamus at LLS--see previous years' posts for 2006, 2007, and 2008). From the NYU Bar Revue, here is Barbri Girl, a salute to the most successful and well-known bar review course in the nation:
Remember to come out to Wit of Mandamus V on Friday, 7pm at the Student Lounge at Loyola Law School. And good luck to February bar takers!
In the wake of the collision of a defunct Russian satellite with a live US commercial communications satellite, Popular Mechanicsexplores the legal angle of cleaning up space debris. Of note is this observation:
Finally, current space law doesn't allow another solution to the space-junk problem: Salvage. Under the 1967 Outer Space Treaty, nations retain "jurisdiction and control" over their spacecraft even when they are inoperable, meaning that a salvage operator wouldn't be able to take title or claim an award for recovering a defunct craft as is done on earth. Space lawyers (yes, there are space lawyers) have been arguing for years that the proliferation of space junk makes some sort of salvage law necessary, but up to now there has been little progress. The technology for recovering defunct satellites is there, though cleaning up smaller debris fragments would be much, much harder. That's a reason to try to get a handle on the problem sooner, rather than later. A space salvage law might even give a shot in the arm to commercial space efforts, by providing yet another money-making option.
Of course, a law per se might not have to be developed if some sort of contractual agreement can be had.
While LLS has definitely improved its bar passage rate, it still has some work cut out. The Stud hopes the Class of 2009 will keep LLS bar passage numbers strong.
Those of you who have been following the exploits of Loyola 2L are familiar with his refrain that law school is a scam. In this economy, that's getting ever more exposed, and according to a recent article in the ABA Journal, people are starting to get it (emphasis mine):
Many educators tout the statistic that college graduates will earn $1 million more than high school grads. The magazine examines the claim and says the statistic doesn’t account for some facts.
First, the higher salary figure may reflect the fact that college graduates are smarter and work harder—characteristics that could boost salaries for such people even if they don’t attend college. Second, the cost of a college degree has risen at twice the rate of inflation, coming to nearly $100,000 for a private school. Third, college students give up about $125,000 in pay for the four years they are in school.
The story cites a College Board study that found one in four college grads earns considerably less than the top quartile of high school grads.
One law school dean, Richard Matasar of New York Law School, says law schools are "exploiting" students who don't succeed in life, according to an account of his remarks at a recent program by TaxProf Blog.
Matasar said registrations for the law school admissions test are flat or below the norm for this year. “That's never happened in a downturn in the economy before,” he said. “They're catching on. Maybe this thing they are doing is not so valuable. Maybe the chance at being in the top 10 percent [helpful in landing a good job] is not a good enough lottery shot in order to effectively spend $120,000 and see it blow up at the end of three years of law school.”
Exactly. The Stud has heard that legal careers are a bubble. If so, this recession is bursting that bubble.
On the plus side, if you can hang on for a few years, there will be fewer competitors from the dwindling class of 2012.
Freedom Party leader Geert Wilders made headlines around the world in March 2008 with his film "Fitna," which juxtaposed Koranic verses against a background of violent film clips and images of terrorism by Islamic radicals.
In 2007, Wilders called for a ban on the Koran "the same way we ban 'Mein Kampf."' He said both Adolf Hitler's work and the Muslim holy book contain passages that contradict Western values.
The Amsterdam Appeals Court called Wilders' statements in his film, newspaper articles and media interviews "one-sided generalizations ... which can amount to inciting hatred."
...
The three judges said they had weighed Wilders' anti-Islamic rhetoric against his right to free speech, and ruled he had even gone beyond the normal leeway given to politicians.
Because Wilders has not yet been charged, it is not clear what maximum penalty he could face if convicted.
While judges in the Netherlands generally are loathe to become involved in public debate, the court said it was making an exception in the case of Wilders' comments about Islam.
"The court considers this so insulting for Muslims that it is in the public interest to prosecute Wilders," a summary of the court's decision said.
Gerard Spong, a prominent lawyer who joined Islamic groups in pushing for Wilders' prosecution, welcomed the decision.
"This is a happy day for all followers of Islam who do not want to be tossed on the garbage dump of Naziism," Spong told reporters in Amsterdam.
First of all, banning Mein Kampf is problematic in and of itself. It is this very book-banning which lends support to calls for any other books to be banned. If Mein Kampf is bannable because it promotes intolerance, why not ban religious books? For example, the Old Testament clearly promotes intolerance of non-Hebrews; why not ban the Old Testament? If Mein Kampf is bannable because it advocates a purportedly universal ideology, why not ban the Koran, which advocates a world united in Islam? Why exactly is Mein Kampf bannable, and who decides what the grounds are for a ban?
Second, all that Geert Wilders has done is call for a ban. This is far more peaceful than strident street demonstrations calling for the sacking or killing of editors who publish "sacrilegious" cartoons. Where are the calls for criminal prosecution of those people?
In our view, freedom of expression gives us the transparency by which we can identify stupidity, ignorance, intolerance, and hatred. It takes much, indeed, for an expression to amount to "incitement", and "inciting hatred" is nowhere near imminent enough to be a "clear and present danger." We are reminded of the wisdom of Justice Brandeis' concurrance in Whitney v. California, 274 U.S. 357 at 377 (1927):
To courageous, selfreliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.
If a person is so easily incited to act on his hatred that he would take action "so imminent it may befall before there is opportunity for full discussion", Law Law Stud believes such a person is not reasonable at all. The fact that Islamic groups have taken the time to protest Geert Wilders' provocative suggestions is clear evidence that they are not so unreasonable as to be incited to imminent action by such insults.
Is the Amsterdam Appeals Court really suggesting, then, that Muslims are not reasonable? In a society that prides itself on tolerance, such low expectations are nothing if not soft bigotry most intolerant.
The United States Court of Appeals for the Ninth Circuit came down against the scarlet letter yesterday its opinion in the case of Humphries v. County of Los Angeles:
California's maintenance of Child Abuse Central Index, a database of known or suspected child abusers, violates procedural due process under Fourteenth Amendment because stigma of being listed, "plus" various statutory consequences, constitutes a liberty interest; index lacks meaningful, guaranteed procedural safeguards before initial placement of names on it; and index does not afford identified individuals a fair opportunity to challenge allegations against them.
(emphases mine) Seems like another win for the precept of "innocent until proven guilty".
Those of you who have taken Criminal Procedure know about the exclusionary rule. The point of the rule was to prevent law enforcement and prosecution from getting the benefit of fruit of unlawful conduct. One of the major points is that law enforcement officers must be able to develop probable cause (of the type that would be sufficient for a warrant) before they can arrest an individual. Absent such probable cause, the arrest is unlawful, and evidence obtained as a result of that arrest, such as by a search, is thereby tainted, and cannot be used against the suspect at trial. Because the focus is on balancing prevention of unlawful conduct on the part of police on the one hand with justice on the other, one exception to the rule requiring the existence of probable cause, as developed over the years, is reasonable error on the part of judicial staff, e.g., a court clerk pulling the wrong arrest record or criminal record because of an input error in the computer record retrieval system.
In its just-announced opinion in the case of Herring v. United States, the United States Supreme Court held that reasonable error in police record keeping triggers an exception to the exclusionary rule. The New York Timesreports on the underlying facts:
The case began when methamphetamines and a gun were found after Bennie D. Herring, an Alabama man, was arrested based on police officers’ mistaken belief that he was subject to an outstanding arrest warrant.
That belief was based on incorrect information in the computer files of a neighboring county’s police department. The warrant had been withdrawn, but the database had not been updated.
Calling the error “isolated negligence attenuated from the arrest,” Chief Justice Roberts said the lower courts had been correct in allowing the jury in Mr. Herring’s case to consider the evidence. He was convicted and sentenced to 27 months in prison.
The ruling itself is relatively narrow and is arguably merely a logical extension of a 1995 decision, Arizona v. Evans, which recognized an exception to the exclusionary rule for arrests resulting from erroneous computer records kept by court employees (as opposed to the police).
On its facts, the case is about the application of the exclusionary rule to errors in police recordkeeping. Narrowly framed, the question was whether the Court’s prior ruling that errors by judicial clerks do not trigger the exclusionary rule should be applied to police clerks. The Court holds that a negligent error by the police clerk does not give rise to exclusion. The dissents dispute the majority’s reasoning within that frame of reference - i.e., they treat the case as if it were only about police clerks and police recordkeeping.
But in fact the majority’s reasoning is broader - much, much broader. Today, the Supreme Court holds that negligent errors by the police generally do not trigger the exclusionary rule. “As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” Slip Op. at 9. “[W]e conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements,” the exclusionary rule does not apply. Id. at 12.
The opinion has nothing to do with the fact that the error here is one of recordkeeping. It applies fully to negligence by police officers in their day-to-day determination whether there is probable cause to conduct a search. If the officer makes an objectively reasonable mistake - i.e., he is merely negligent - the exclusionary rule does not apply to whatever evidence he finds. Put another way, the Supreme Court today extended the good faith exception to ordinary police conduct.
The facts of the case, as described in these two articles, does not seem to suggest that there was bad faith on the part of Alabama police. However, one potential problem with extending the exception to police is that an agency, or some of its personnel, may become less careful, secure in the knowledge that good faith alone is sufficient to sustain use of evidence that would otherwise be inadmissible. That would seriously impede the development and professionalism of our law enforcement agencies.
