Learning the Right Wrong Lessons, Part II

The major pivot point in Joe Biden's term in office did not stem from inflation or the war in Gaza. It came following his withdrawal from Afghanistan. That decision was marked by a few key characteristics:

1. It was the right call: we weren't accomplishing anything in Afghanistan, and nobody had a better plan to turn things around other than "stay for six more months, and then six more months after that."
2. It was always going to be bumpy, leaving ample attack avenues open for political opponents (and the media) to exploit; and
3. It was vocally demanded by the American left.

Three of Biden's predecessors over a twenty year period had stayed in Afghanistan, perhaps not believing the first point, perhaps fearing the second. Biden was the one who actually followed through and did the right thing, hoping that the progressive actors who enlivened the third point would rise to his defense to counteract the second.

It didn't happen. Biden withdrew, got absolutely pilloried for it in the press, received essentially no credit for it from the left, and to be honest his presidential tenure never recovered. As I and many others observed, any rational political observer knew what lesson to draw from the ordeal, and it's not a good one.

I think we're going through the same scenario with Biden's recent commutation wave targeting persons who were already moved into home confinement during COVID. After the Hunter Biden pardon, there were absolutely valid questions about how the clemency power was being used, and one narrative many progressives rapidly coalesced on was that if Biden is going to pardon his own son, he better use it to the benefit of ordinary, non-connected inmates in the clutches of prison system. Much like the Afghanistan withdrawal, this was a vocal demand of the left, and much like the Afghanistan withdrawal it was essentially assured that any large-scale deployment of the clemency power would yield something that political opponents could exploit. Contrary to the idyll fantasies in certain quarter, most people in prison have indeed done something wrong, and any political action to benefit the likes of "them" is a ripe avenue for political attack. This is one reason why criminal justice reform is hard.

Anyway, Biden issues a commutation order for roughly 1500 people, the largest one-day usage of the clemency power in American history. One of the beneficiaries was the notorious "kids for cash" judge in Pennsylvania, Michael Conahan. People -- including liberals who a moment earlier were demanding expansive use of the clemency power -- went ballistic. And Biden got essentially got no credit.

It goes without saying that the Conahan committed an absolutely heinous crime. But it is a testament to how bad the media culture is around this issue that when I first heard about Biden's decision I was misled twice. First I thought it was the case that Biden pardoned Conahan; he didn't, the sentence was commuted. Then I got the impression that the commutation meant that the judge would serve a negligible time in jail (time is meaningless to me right now, I had absolutely no sense of when the judge committed his crimes or was convicted and sentenced). Wrong again: Conahan was sentenced to seventeen years in prison, and this commutation occurred after he served fourteen.

Could one say that the Biden administration could have reviewed the commutations more closely to make sure a guy like this wasn't included? Perhaps -- but I'd level two notes of caution. First, if it wasn't him, odds are it'd be someone else. Again, most people in federal prison did something to hurt someone. If you support using clemency on a wide scale, you have to be willing to take that hit. Second, there is an inherent incompatibility between doing clemency at scale and adding a bunch of extra layers of individualized review. If we're talking a dozen or so people or so, it's probably possible to conduct a timely review of each of their records in depth that will assure oneself that there's nothing there that will trigger major political blowback. When we're talking about thousands of people at once, that sort of review isn't feasible without gumming up the works indefinitely. So if you think the problems in our carceral system are not just a few idiosyncratic cases of unusually sympathetic people who were caught up in the wrong place at the wrong time, but is systemic, then you need to allow for reform mechanisms that are systemic in nature, and that necessarily means they're not going to be perfectly attentive to the particularities of every inmate's case.

Here, the reason that Conahan received a commutation wasn't because someone looked at his particular case file and said "this person is especially worthy of executive grace." There was rather a broad metric the Biden administration was using -- people who had already served most of their sentences, were medically vulnerable in prison, had not been convicted of violent or sexual offenses, and who had already been transferred into home confinement -- and this man was one of 1500 or so who met the criteria. That's a reasonable metric, and if you're telling me that it's essential to add more bureaucratic barriers to the clemency process -- and, in essence, make it much, much harder to issue clemency at scale -- in order to ensure that Michale Conahan serves seventeen years in prison instead of fourteen, then I say your priorities are out of order.

But the reality is that, like with Afghanistan, any observer will see what Joe Biden did here, see the reaction, see the anemic defense he received even from many of those who demanded action just like this, and learn the only rational lesson there is to learn: stay away from criminal justice reform. Be stingy with the clemency power. Keep more people in prison for longer. That's the lesson, and I'm sure every savvy Democratic politico is internalizing it.

Hostage Situation

While it wasn't on my formal list, I propose that one of our collective new year's resolutions be to remember that one does not, under any circumstances, have to hand it to Elise Stefanik:

Rep. Jamie Raskin (D-Md.) went after Rep. Elise Stefanik (R-N.Y.) on Sunday after Stefanik called those found guilty of crimes related to the Jan. 6 Capitol riots “hostages,” claiming that her divisive remarks are part of her efforts to join former President Trump’s 2024 ticket.

[....] 

“I have concerns about the treatment of Jan. 6 hostages,” [Stefanik] said. “We have a rule in Congress of oversight over our treatment of prisoners. And I believe that we’re seeing the weaponization of the federal government against not just President Trump, but we’re seeing it against conservatives.”

In the immediate aftermath of January 6, Stefanik was vocal in demanding the Justice Department prosecute those responsible “to the fullest extent of the law.” But that was then, and this is now, and now Stefanik sees an opportunity to pander.

That Stefanik is a craven opportunistic weasel is too clear to need remarking on at this point. Kudos also to Raskin for taking the obvious but nonetheless necessary shot:

Raskin also demanded that Stefanik apologize for her comments, pointing to approximately 130 hostages held by Hamas in Gaza amid the brutal war with Israel.

“People convicted of violently assaulting police officers and conspiring to overthrow the government are not ‘hostages,’” he said on X. “Stefanik must apologize to the families of 130 people being held hostage by Hamas right now. Her pandering to Trump is dangerous.”

Israelis being raped and brutalized in Hamas captivity are "hostages". Insurrectionists imprisoned after being duly convicted for crimes following due process of law are not. Simple. And while Stefanik's casual insult towards actual hostages is hardly the primary story, anything that dims the ill-gotten luster Stefanik "earned" via her bad faith grandstanding about campus antisemitism is worth applauding.

(Actually, I'll make one more observation here, which is that somehow prison abolitionists -- who might agree in concept with characterizing workaday criminal convicts as "hostages" and certainly would support greater scrutiny of how we treat prisoners -- have somehow managed to resist any "well, I may not like her, but you've got to hand it to Stefanik ..." temptations. Fancy that.).

Pardon the Insurrection

If Donald Trump is elected president in 2024, there is a near-100% chance he will pardon the January 6 insurrectionists. I think that is effectively beyond contestation. Here are my two questions:

1) If a different Republican (e.g., DeSantis) is elected in 2024, what are the odds that he pardons the insurrectionists? I'd say it's less likely than the near-certainty that Trump would do it; but is it even below 50%? Below 10%?

2) If Trump is elected in 2024, what are the odds that he tries to prosecute at least some of the Capitol police officers who resisted the January 6 insurrectionists (here he is calling one such officer a "thug" and Ashli Babbitt a "hero")?

Scary thoughts.

Imagine What They Can Do To You

 The GOP response to the FBI's raid on Mar-a-Lago has been very straightforward:

If they can do it to a former President, imagine what they can do to you.

— House Judiciary GOP (@JudiciaryGOP) August 8, 2022

The immediate response to this was that I never doubted that the FBI was capable of getting a warrant to search my house if they established probable cause that I had committed a crime. Not only was that well within the realm of imagination, it'd be very bad if I couldn't imagine it!

But it when it comes down to "imagine what they can do to you", this isn't the story that is haunting. It was this Atlantic deep dive into how Trump's "family separation" policy was implemented.

Obviously, the basic fact patterns found in that story are terrifying. Imagining your small children ripped away from you, shipped to God knows where, with no guarantee you'll ever see them again -- it beggars belief. But there's a more fundamental horror at work here -- the impunity of power. In contrast to the formal legal process that resulted in the Mar-a-Lago raid, processes which will be challengeable in a courtroom and held to significant judicial scrutiny, the parents and children victimized by Trump's family separation policy were thrust into a chaotic state of legal limbo defined by the fact that nobody would, or could, help them. Can you imagine that? Can you imagine your child gone missing, and your frantic pleas for help just ... ignored? Not even that people try to help and fail -- they won't help at all. You're in the most dire crisis imaginable, and the men and women in uniform who seem like they should be tasked with helping you, who seem like they have the power to end the nightmare, just leave you to twist?

The argument against allowing the Mar-a-Lago raid is little more complex than the belief that if you become powerful enough, the law should no longer apply to you. That form of entitled impunity is not at all unrelated to the administrative lawlessness and abandonment that characterized how the family separation victims were traumatized. In either case, the message is that one's ability to claim the protections of the law is wholly a function of whether you possess the requisite amount of social power. If you're part of the favored in-class -- the Trumps of the world -- then law will bend over backwards to ensure you have your hearing. If you're on the outside looking in, then law will ignore you no matter how loud you scream.

Imagine what that could mean for you.

"Ex Post Facto" Abortion Prosecutions

I don't want to give any grandstanding GOP District Attorney ideas here, but I have a question about potential legal jeopardy of women who had abortions while Roe was good law following its likely invalidation in Dobbs.

If you've seen the maps about the status of abortion rights post-Roe, you've likely seen figures suggesting about half the states in America would ban abortion in Dobbs' immediate aftermath. Some of these are just states which are poised to act when Roe falls. Others have so-called "trigger" laws, which would criminalize abortion starting from the moment Roe is overturned.

But in at least a few states, there were laws which pre-dated Roe banning abortion that have never been repealed. And that, to my somewhat untrained eye,  presents a big problem for women in those states who may have had an abortion during the Roe era.

When a law is "struck down" as unconstitutional, it is not, as is popularly held, stricken from the books. The law still exists, it is just practically unenforceable. One effect of Dobbs would be to resurrect these zombie laws. But the question is whether the prohibitions found in those laws could be used to prosecute women who had an abortion while Roe was still in effect.

The instinctive answer is no, because the constitution prohibits ex post facto criminal lawmaking. You cannot criminalize conduct retroactively. So a state could not newly criminalize abortion and make that law apply to conduct that occurred before the law was passed. That would characterize many of the "immediate" abortion ban states; including, I think, the "trigger" law states.

But in the case of our states that simply kept their pre-Roe abortion prohibitions on the books, things may be different. The argument there would be that abortion was always illegal in those states, including during the Roe period. Yes, those laws couldn't be enforced during Roe's pendency, but the criminal prohibition was still on the books at the time the woman had the abortion in question. It will not be Dobbs that criminalizes abortion in these states, Dobbs will just remove the barrier that had prevented the state from enforcing its always-operative anti-abortion statute. It's as if you committed a crime but the DA couldn't prosecute because his hands were literally tied behind his back. Once he is freed from restraints, you cannot then say "well, I acted relying on the knowledge that the DA was incapacitated".

Does the rule against ex post facto criminal laws prevent prosecutions in such a case? It is far from clear to me that the answer is yes. Women in states that had continuous abortion bans in place during the Roe era may be at real risk of prosecution (assuming they're within the relevant statute of limitations). Yet another way that overturning Roe will wreak havoc on the settled expectations of millions of American women.

Qualified Immunity and Criminal Law

Normally, we think of civil cases as being easier to win than their criminal counterparts. The standard of proof is lower ("preponderance of the evidence" versus "beyond a reasonable doubt"), and many activities which are not subject to criminal penalties might nonetheless carry civil liability. There's a reason why O.J. Simpson was acquitted of murder but nonetheless lost the civil suit against him for wrongful death.

But, at least in the context of police brutality cases, there is one hurdle present in civil litigation that is not found in criminal law: qualified immunity.

Qualified immunity is a judicially-made doctrine that shields officers of the state (not just police officers, though they're the most common subjects of litigation) from civil liability for constitutional violations unless they violate "clearly established" law. In other words, it's not enough for the police officer to have violated the law, it has to have been obvious in advance that they violated the law. The judiciary has interpreted this in an exceptionally stingy fashion, insisting on extremely granular inquiries into whether the precise fact pattern alleged by the plaintiff had been specifically demarcated as unlawful in a prior case. The question isn't something like "has it been 'clearly established' that a police officer can't physical strike an non-resisting suspect?", it's instead more like "has it been 'clearly established' that a police officer can't specifically tackle a non-violent, non-resisting, non-threatening suspect who weighed 130 lbs?" If one doesn't find a case that mirrors those facts, the law isn't "clearly established" and the case fails. The Supreme Court itself has accordingly characterized qualified immunity as a shield for all except "the plainly incompetent or those who knowingly violate the law." And the Eighth Circuit (which includes Minnesota) -- well, it's insulated some pretty wretched behavior under qualified immunity's guise (and some of its judges think it hasn't gone far enough!).

By its nature, qualified immunity means that many actions which are concededly unlawful violations of Americans' civil rights are nonetheless protected from civil suit. But there is no qualified immunity in the criminal law: one cannot escape criminal punishment by arguing that there has not been prior case law "clearly establishing" that the conduct you're accused of is unlawful. I'm dubious about the ultimate viability of criminal law to serve as a systemic brake on police brutality -- I'm not sure that is a task it is well-suited for (though it is certainly appropriate in particular cases -- the George Floyd case appearing to be an obvious). But a criminal prosecution -- as much as it is (properly!) hamstrung by heightened burdens of proof compared to a civil suit -- does evade the strictures of qualified immunity. And given how aggressively the judiciary has interpreted qualified immunity to shield bad actors in the American policing system, that's a virtue which cannot be discounted.

"Like Giving Zizek To a First-Year" Roundup

Next week is the first substantive meeting of the "Intro to Political Theory" class I'm GSIing. It's mostly made up of first- and second-year students. The professor's initial reading assignment includes excerpts from Zizek and Gramsci. I'm prepared to be absolutely despised.

* * *

An LSU professor fired (against the advice of a faculty committee who reviewed her case) for using profanity in the classroom has lost a First Amendment suit against the university. I can't comment on the legal issues involved, but I can say that I fully agree with the AAUP's decision to censure LSU (in part) over the termination (the ruling does not effect the AAUP censuring decision).

The best piece I've read on liberal opposition to Ken Marcus taking up a civil rights position at the Department of Education. Tl;dr: It's not about BDS, it's about him being a conservative who isn't trusted to enforce the priorities of the civil rights community.

Why do Republicans need 60 votes to pass a budget? Because they used reconciliation to slam through a giant tax cut for the rich. Priorities, priorities.

RIP, Julius Lester.

Jewish convert discovers that her conversion means her old leftist buddies assume she's now all-in for apartheid. Welcome to the club!

A bank executive actually will go to prison for fraud (relating to the collapse of Nebraska bank TierOne).

What Do You Do With Terrible Precedents Shielding Lying Prosecutors?

Bacall v. Stoddard is about a prosecutor who lied.

Bacall was accused of first-degree murder. He claimed self-defense. The prosecutor told the jury that Bacall never once raised the issue of self-defense before trial -- that it was an opportunistic argument he only now was trying to swing. This was the lie. Bacall had been emphatic in claiming self-defense since being booked for the crime, and the prosecutor was well aware of this. But following that lie, the jury (which made it clear it was agonizing over the case in deliberations), voted to convict.

The Sixth Circuit rejected Bacall's Habeas petition. They were clearly disturbed by the conduct. There was no question in their mind that the prosecutor lied, and did so intentionally (quoth the court regarding the prosecutor's statements to the jury: "This was false, and the prosecutor knew it."). The case was not one where the evidence against the defendant was overwhelming; the prosecutor's lie very well could have tipped the margin. The issue was preserved at trial (via an objection made -- on instructions of the trial court -- out of earshot of the jury).

The problem was that Supreme Court precedents and the AEDPA have made prevailing on a Habeas petition almost ludicrously difficult to manage. Even in a case like this, where there was a manifest abuse by the prosecution, the question was whether the Michigan state court's decision not to overturn the jury verdict was "was so lacking in justification that [it committed] an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Yeah, that's a tough standard to meet.

The panel clearly believed this case well-illustrated how the current law and precedents have gone badly off the rails. It seemed to me that they weren't saying that the only reasonable way of reading the law was to require that outcome, however. Rather, their analysis suggests that they believed this outcome was the most reasonable interpretation of the governing law.

For me, this raises an interesting hypothetical. Suppose you're the appellate judge hearing this case, and you think the following things are true:

(a) the prosecutor here committed a gross miscarriage of justice, such that, in a just and functioning legal system, Bacall's conviction should clearly be reversed; 

(b) the most accurate read of the governing statute and precedents -- entirely bloodless and indifferent to the consequences or questions of justice -- would suggest that his Habeas petition must fail; 

(c) notwithstanding the above, there is a plausible and reasonable (though not the best) interpretation of the statute and precedents which would justify granting the Habeas petition; and

(d) you suspect that, if your panel does successfully grant the petition, that ruling will not be disturbed by any further appeals (the case won't go en banc or to the Supreme Court).

What do you do?

The New Orleans DA Office is Out of Control

The other day, I read an article about an (apparently long-standing, but about to be discontinued) practice by the New Orleans District Attorneys office of sending out fake "subpoena" notifications to potential witnesses. The notice says "A FINE AND IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE,” but this is simply a falsehood. And it comes without any judicial or official sanction. Basically, it's a fraud. It's designed to mislead potential witnesses into believing they must talk to the DA's office, when they in fact do not have to.

So that's bad. But then today I read another article about a prosecution team that has been repeatedly charging its counterpart public defenders with trumped-up criminal allegations (none of them have stuck). Everything from contempt to impersonating a prosecutor to kidnapping(!). Some of the names sounded familiar, and, lo and behold, its the same office! The same DA team that's sending out fake subpoenas to witnesses is also leveling bogus criminal charges against public defenders. It's beyond parody.

This DA and his team seem completely out of control. Any one of these behaviors, on their own, would be shocking in its abuse of prosecutorial power. Together, it represents a pattern of thuggish intimidation that stands way outside of what should be acceptable in a system ruled by law.

The Bank Robber Turned Georgetown Law Prof is a Bad Example of White Privilege

Shon Hopwood robbed a bank, and served 11 years in prison. While incarcerated, he studied in the prison law library and -- incredibly -- authored two cert petitions that were ultimately granted by the Supreme Court. This caught the attention of former Solicitor General Seth Waxman, who collaborated with Hopwood once the first of these cases was accepted for argument. Upon release from prison in 2009, Hopwood attended the University of Washington Law School and later clerked on the prestigious United States Court of Appeals for  the D.C. Circuit.

His story is already familiar to many lawyers -- his sentencing judge, Judge Richard Kopf of the District of Nebraska, publicly ate crow after admitting that he thought Hopwood was a low-life who'd never make anything of himself -- and for my part I distinctly recall reading his clerkship application when I worked for Judge Diana E. Murphy on the United States Court of Appeals for the Eighth Circuit. His was a remarkable tale, the sort of once-in-a-lifetime story one doesn't soon forget.

Now Hopwood is back in the news after he was hired to teach at Georgetown Law School. And a few people, including my good friend Joel Sati, have reacted by labeling his case one of "white privilege". I checked in with another friend and official privilege expert/skeptic Phoebe Maltz Bovy, and she was okay with the usage in this case. But -- despite generally being more comfortable with "privilege" discourse than Bovy -- I found it's deployment here to be off-base, and I thought I might explain why.

The obvious angle of attack, of course, would be to say that to talk of "white privilege" in Hopwood's case obscures his incredible accomplishments, talent, hard work, and so on. The retort to this would be that "privilege"-speak actually denies none of these things, but rather is the observation that a similarly-situated Black man would never be given the same opportunity Hopwood had for redemption. And so the crux of my hesitation is that I'm actually not convinced that this is true. I actually think academia would respond quite positively to a Black man whom, while in prison for bank robbery, authored two cert petitions that were ultimately accepted by the Supreme Court. That's an incredible (in the literal sense -- it defies credibility) accomplishment, and one that I think would be difficult to overlook no matter the race of the inmate. Of course, it is so incredible because it is breathtakingly rare -- there almost certainly isn't another inmate of any race who has managed to walk that particular path, and so the counterfactual remains wholly hypothetical.

However.

Let's say I'm right, and our hypothetical black male inmate did author two successful cert petitions and then was upon his release accepted into law school, allowed to take the bar, hired for a prestigious clerkship, and ultimately employed as an elite law professor. And suppose someone pointed to that man and said "Aha! There's no 'racism' in our prison system! Look at [Black Shon Hopwood]: He worked hard and made something of himself, and see how successful he is now. Instead of complaining so much about 'racism', why don't people try following his example?"

Such an argument would not be remotely compelling. Why not? Because the fact that a truly extraordinary individual can transcend the barriers of the incarceration system tells us virtually nothing about how that system operates on average men and women. To say to a regular prison serving out a prison term "your destiny is in your hands now: all you have to do is teach yourself law while incarcerated and become so proficient at it that you can write two briefs that will be accepted for hearing by the Supreme Court, and you can successfully reenter society" is a ridiculous joke. It is the beyond-parody version of thinking of civil rights in terms of the "talented tenth" (or tenth of a tenth of a tenth) instead of the "normal ninethieth." We would, in the case of "Black Shon Hopwood", rightly reject the notion that his story tells us anything useful about racial inequality or injustice as it pertains to persons convicted of crimes generally. But the argument that Black Shon Hopwood is abnormal and aberrational is inconsistent with the argument that White Shon Hopwood is illustrative and representative. The latter argument is alluring because such cases stick in the public eye. But the former argument is the right one.

In The New Jim Crow, Michelle Alexander speaks of the propensity to take the life stories of exceptional Black men and women -- the Barack Obamas and Oprah Winfreys -- and use them as baselines for the typical Black experience. These are not typical stories, and so they have little to tell us about what equality or fair opportunity means for the typical Black man or woman. The problem with our prison system, or our educational system, or our political system, is not that it makes it impossible for the ludicrously talented to succeed. As Bella Abzug famously put it, "Our struggle today is not to have a female Einstein get appointed as an assistant professor; it is for a woman schlemiel to get as quickly promoted as a male schlemiel." So too, we might say, the struggle for racial justice for the incarcerated is not to get a Black Shon Hopwood hired as a paralegal. It's to ensure that the typical Black inmate has the same opportunities on release as the typical White inmate* -- neither of whom is likely to resemble Shon Hopwood in any meaningful respect.

That White privilege interacts with our prison system is undeniable. And in particular, it is clear that White ex-felons have a far better chance of being hired or given other opportunities than the Black colleagues upon release (indeed, the former's chance is equivalent to that of a Black man with no criminal record at all). That's White privilege not in an exceptional case, but in an appallingly ordinary form -- not tied to an extraordinary, nearly sui generis case like Hopwood, but as applied to regular people who are not going and should not be expected to write multiple successful Supreme Court cert petitions. Focusing on Hopwood's case is not just wrong analytically, it perpetuates the destructive frame whereby we focus anti-racism discourse on exceptional cases and then blame everyday people for not living up to near-unattainable ideal.

Most people -- Black or White -- aren't exceptional. They're normal. And for anti-racist politics to help them, it must break the habit of relying on the high-profile and high-octane cases to establish the circumstances faced by the normal, the unremarkable, the banal, and the everyday.

* And that both have opportunities that substantively offer them a real chance to integrate back into society as equal members.

After Ammon Bundy, Can We PLEASE Stop Obsessing Over O.J. Simpson?

Ammon Bundy and his cohort have been acquitted of all charges following their seizure of a federal Oregon Wildlife Refuge despite, you know, clearly having done it. A lot of people are upset about this, but I'm not. You want to know why?

Honestly, the O.J. Simpson trial had been getting a bit dated as a reference for "criminal trial where obviously guilty persons don't get convicted."* And with the Bundy acquittal, we can finally let the Simpson case go and focus our contempt for the criminal justice system and effective jury nullification on a more recent and topical case.

That's precisely how this will work, right? We are all equally outraged when high-profile White people escape punishment for the crimes they clearly committed?

* In many ways, this is worse than the Simpson case -- for while Simpson was almost assuredly guilty, at least he actually denied committing the crime. The Bundys more or less admitted to doing everything the government charged them with, with a defense justified by "but it's the government, so come on" -- a much more classic case of nullification.

Taking Clients Seriously

A criminal defendant facing charges after a gun and drugs were found in his dorm room tells his attorney he was framed. The attorney was dubious -- sure you were -- but has the resources to check out his client's story. Turns out, the client was almost certainly right. After relaying this tale (taken from his own professional experience), Ken White writes the following:

Being an effective and responsible criminal defense attorney doesn't require believing everything a client says, exactly. The policy could be better described as "trust, but verify." The key isn't to build a defense on the premise that everything the client says is perfectly accurate. The key is to take what the client says seriously and follow up on it, rather than dismissing them out of hand. If you don't, you're not defending the client — you're defending your stereotype of the client.

I find it interesting that White's advice here parallels almost exactly my own advice vis-a-vis how we should respond to persons making discrimination claims.  And I don't think it is accidental that the claimants in either scenario -- minorities and marginalized persons, persons accused of crimes (these categories, of course, often intersect) -- are typically persons who tend to be given less credibility as a default; whom society tells it is okay to assume are not worth taking seriously.

"Consent" Isn't Consent If You Have To Consent To Everything

Radley Balko provides a worrisome story regarding the advice the Waterbury, Connecticut police chief gave to a largely black audience regarding how to interact with police:

If an officer stops your car, if they ask to search your person or vehicle, if they demand entry into your home, comply and then complain later to the department’s internal affairs office and police chief’s office if you feel your rights have been violated, [Chief Vernon] Riddick said.

Balko gives a host of reasons why this is an outrageous piece of advice to give. But I'll focus on one: If you consent to a search of your person or vehicle or home, that search is now legal. If the police ask to search you and you agree to it -- even if there's no probable cause, even if there's no warrant -- that search is entirely valid and admissible. There wouldn't be anything to complain to IA about -- at least with respect to the search.

There is plenty of scholarship which suggests that this entire notion of "consent" is more than a little fictitious. If a police officer is talking with you on the sidewalk and asks if he can take a look inside your bag, reflect on how likely you are to say "sorry, no" and walk away. Now think of how much that instinct is compounded if your city's chief of police has just publicly announced that the way to have a safe and healthy relationship with the officers under his command is to "consent" to everything they ask and then complain about it later. Is it realistic to say that any "consensual" searches in that context actually evince "consent" in any meaningful capacity?

This advice is entirely unbecoming of person tasked with enforcing the law in a nation where the Constitution is the most important law of all. There are plenty of lawful commands the police have the right to issue which you should obey; including some of which the right move is to obey and then challenge later. But when it comes to a search request in a scenario where there's no warrant and no exigent circumstances, consenting to the search permanently obliterates your right to challenge it.