New Airport Security: Balancing Tests (Part 4)

Balancing Tests

Although the constitutionality of airport screening searches is not dependent on consent, the scope of such searches is not limitless.  A particular airport security screening search is considered reasonable provided that is “is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives that it is confined in good faith to that purpose.”[1] In United States v. Moreno, it was shown that since airline hijackers only raise suspicion after the opportunity to prevent harm existed; the court upheld the reasonableness of standard metal detector preflight screenings.[2] So thus it is important to examine current technology to see if anything better exists and the effectiveness of the new techniques.

Amsterdam’s Schiphol Airport, uses scanners known as ProVision ATD, which have incorporated important privacy and safety precaution, and uses radio waves at low frequencies to find suspicious material.  When contraband is detected, the results are then projected onto a gender-neutral blob-like image, instead of the essentially naked image of a passenger that the millimeter wave and backscatter machines do.[3]

John Pistole, currently TSA chief, has even acknowledged in the past that, while there a much higher rate of false positives, these machines are the “next generation” screening technology.[4] Courts still may rule that this technology is less invasive and equally as effective in finding contraband objects then either machine currently used.

These other machines are similar in terms of detection and it could be ruled that the machines the TSA are using are considered much more intensive then necessary in light of the current technology.

[1] Id. at 913.

[2] Moreno, 475 F.2d at 49-50.

[3] Jeffery Rosen, Why The TSA Pat-Downs and Body Scans Are Unconstitutional, Nov. 28th 2010,

[4] Id.

New Airport Security: Restriction of Consent (Part 9)

But Why Have People Restricted Consent Now and Not Before?

While airport security has existed for several years, and security procedures have increased greatly since 9/11, there has been little public outcry about the invasiveness.  Why has this happened now?  In explaining consent, Larry Alexander mentions certain background requirements to consent and alleges that when engaging in boundary crossing acts that lessen consent (1) capacity, (2) information and (3) motivation must all be considered.[1]

First, in terms of capacity, he cites age, a lacking of mental disease, irrationality, intoxications, and maintaining a degree as self-control to be vital to this pursuit.[2] Essentially, does the person have capacity to consent?  It can’t be argued that those that have restricted consent have lost, or no longer have the capacity to consent.  This does not appear to be an issue here as many of those who are fighting these new restrictions are academics and prominent writers.  Clearly they have the capacity to consent.

Secondly, does the person have the right information to consent?  It can be argued that many who consent to the new procedures do not have the right information, as the government does not make clear the many concerns that are to be had by these new procedures. Alexander states that “The choice to forgo one’s moral objection to a boundary crossing act succeeds in blocking one’s later moral objection only if the act that crosses the moral boundary is the same act the consenter had in mind.”[3] This could be where many people have issue.  After analyzing the debate, it is clear that there appear to be typically two types of people who stand against this new airport security (1) those who have gone through the new procedures and had a bad experience and (2) those who have read what has been said online, in newspapers, television, or heard stories, and have formed opinions on the new procedures based on the body of knowledge presented to them.  Those who have had bad experiences, were typically shocked by the intrusiveness.  Essentially, this is not what I signed up for when going to the airport or as Alexander states “False beliefs about that act at least certain types of false beliefs can destroy the identity between the act consented to and the act that occurred.  There may be consent to an act but there is no consent to the act.”[4]

The third background requirement to consent is motivation.  Alexander alleges that motivation should be divided into two separate categories:

First, he cites offers and threats.  It is clear that there are factors that may force people to consent unwillingly.[5] Alexander alleges that “it must be a necessary cause of the “consenter’s” choice to wave objection to the boundary crossing.  Yet where the boundary crosser induces “consent” by threatening a different boundary crossing – “Consent to this or I will threaten a different boundary crossing”[6] “Although she makes her choice between the options given her voluntarily, she does not consent to the option chosen, for she does not forgo her moral objection to it.”[7] There are many implied threats to not consenting to these new procedures at the airport.  Included in this are long delays, verbal abuse by TSA agents, missed flights, not wanting to be singled out, etc.  These threats do not exist to those who comply, and only exist to those who do not follow through with the prescribed procedures.

Next he sites background motivations.  Alexander cites this as motivation that does not come from “actual or implied threats” but actually delves into people’s mens rea.[8] Perhaps people have become fed up with the continuation of “security theater” – security measures put in place to make people feel safer, but with little actual security enhancements.[9] As shown as mentioned previously, little about these machines actually improves security, and most threats that are mentioned in the media are not found through screenings but by concerned passengers or TSA agents.  Also, it could be the continual ramping up of the security procedures based on incidents that have already happened.  There is a shoe bomber, so now we have to take off our shoes.  Contraband material was attempted to be smuggled in via printer toner, so now that is restricted.  Liquids are limited in size.[10] These security techniques may cumulatively be adding up and people’s mindset might just be “enough is enough.”

[1] Larry Alexander, What Vitiates Consent, 166.

[2] Id. at 167.

[3] Id.

[4] Id. at 168.

[5] Id. at 169.

[6] Id. at 170.

[8] Id. at 170-171.

[9] Expert: TSA Screening is Security Theater, CBS 60 Minutes, Aug. 2nd, 2010,;contentBody.

[10] Christopher Hitchens, Don’t Be An Ass About Airport Security, Nov. 29, 2010,

New Airport Security: Conclusion (Part 10)


In the almost 10 years since 9/11 there have been many attempts to increase security at airports.  Steadily, new procedures have taken hold with little response from the American people.  While increased security is important, there are strong privacy, health, and effectiveness concerns that very well may table these new methods.

Those that are restricting consent to these new methods recognize these fourth amendment concerns and understand their hazards.  Still, much of the country approves of the new machines, just not the new pat down techniques regardless of the fourth amendment and privacy violations.  The Fourth Amendment requires the government to respect the right of the people to be secure in their persons… and effects against unreasonable search and seizures.[1] Wherever the line might be, the courts need to draw a line between what is acceptable and not acceptable in terms of search and seizure and not violating the fourth amendment.

[1] US Const. Amend. IV.


Bankrupty Beat reports the following pearl of wisdom from US Bankrupty Judge Robert Gerber:

“I refrained from interrupting you, because I hoped by the time you were done I would understand your point. I don’t.”

Judge Gerber then ruled against the unclear lawyer, who hadn’t helped his cause by skipping the hearing and only participating by phone after another lawyer called him.

The morals of the story are 1) make sense the first time, and 2) just because you make a seven-figure salary doesn’t make you a good lawyer.


We had a presentation today before a good turn out of the Hampden county bar advocates who practice in the Springfield District Court of our very own production, “As the Fifth Turn…”  (Written and directed by Lawrence Madden.)  It was fun, we got to goof around and mug before our colleagues, presenting a skit on what to do when a fifth amendment case comes along and you’re appointed to represent a witness.  And then there was a productive roundtable about the real issues we come across, particularly and most importantly being judges essentially bullying you into either giving up your client’s privilege or browbeating the defendant in the case into pleading before trial.

These are some fairly complicated issues, which I think were quite helpful.  The script was peppered with clever jokes (including diabolical laughter from the prosecutor), but I think the lesson was clear: if you find a fifth, your job is to stand the line.  Anything between you and the client is confidential, and the court should take your word on your assessment.  (A lot of our job it seems is to stand the line…)

I think a little more could’ve been had – and this is no critique of the people who ran the meeting, time was simply just too short – on finding the fifth.  There seems to be a lot of dissent on where a fifth exists; I’m of the mind that anything that could be potentially used against your client is a fifth amendment privilege.  But others disagree.

But it’ll be interesting to see if the talk will have had an effect.

I was also kind of surprised to hear that many attorneys either didn’t know or didn’t bother counting these appointments as appointments for purposes of their billing.  I mean, charity is as charitable does, but some of these issues can be complex and require a heavy time commitment.

I’ve yet to be appointed to represent someone pleading the fifth… but I look forward to that day.

Judge not, lest ye be judged

The Des Moines Register reports today that two Iowans are getting new trials to decide whether they will be committed to a prison hospital–likely for life–for sex offender “treatment.”

These men have already been tried and convicted of sex offenses and served out the sentences in their criminal cases. Under Iowa law, they get a second trial at the end of their sentence to determine whether they will be committed. At the second trial, the government must prove by expert testimony that 1) the person suffers from a mental abnormality, and 2) that the abnormality renders the person sexually dangerous.

And that’s why they’re getting a new trial. The state jumped through all the hoops, got the men committed… And then the State’s expert was fired from his hospital job and sentenced to seven years in the state prison for kiddie porn. Oops.

Footnote: I’m posting this from my iPhone in court. Which I think is really cool that I can do, but it’s not the full WordPress interface. So, I’ll dress this entry up a bit more, and add kinks, when I get back to a real computer.

Disorder in the Court

This is going around in email form (I guess?), from a book called Disorder in the Court, and are alleged to be true things that have been transcribed in a court.  Normally, I don’t pass around this type of email, but 1) this isn’t an email, and 2) most of these were actually pretty funny.

So here are some laughs, after the cut.



These are from a book called Disorder in the American Courts, and are things people actually said in court, word for word, taken down and now published by court reporters who had the torment of staying calm while these exchanges were actually taking place.


ATTORNEY: Are you sexually active?

WITNESS: No, I just lie there.


ATTORNEY: What gear were you in at the moment of the impact?

WITNESS: Gucci sweats and Reeboks.


ATTORNEY: This myasthenia gravis, does it affect your memory at all?


ATTORNEY: And in what ways does it affect your memory?

WITNESS: I forget.

ATTORNEY: You forget? Can you give us an example of something you forgot?


ATTORNEY: What was the first thing your husband said to you that morning?

WITNESS: He said, “Where am I, Cathy?”

ATTORNEY: And why did that upset you?

WITNESS: My name is Susan!


ATTORNEY: Do you know if your daughter has ever been involved in voodoo?

WITNESS: We both do.




WITNESS: Yes, voodoo.


ATTORNEY: Now doctor, isn’t it true that when a person dies in his sleep, he doesn’t know about it until the next morning?

WITNESS: Did you actually pass the bar exam?


ATTORNEY: The youngest son, the twenty-year-old, how old is he?

WITNESS: Uh, he’s twenty.


ATTORNEY: Were you present when your picture was taken?

WITNESS: Are you shitt’in me?


ATTORNEY: So the date of conception (of the baby) was August 8th?


ATTORNEY: And what were you doing at that time?

WITNESS: Uh…. I was gett’in laid!


ATTORNEY: She had three children, right?


ATTORNEY: How many were boys?


ATTORNEY: Were there any girls?

WITNESS: Are you shitt’in me? Your Honor, I think I need a different attorney. Can I get a new attorney?


ATTORNEY: How was your first marriage terminated?

WITNESS: By death.

ATTORNEY: And by whose death was it terminated?

WITNESS: Now whose death do you suppose terminated it?


ATTORNEY: Can you describe the individual?

WITNESS: He was about medium height and had a beard.

ATTORNEY: Was this a male or a female?



ATTORNEY: Is your appearance here this morning pursuant to a deposition notice which I sent to your attorney?

WITNESS: No, this is how I dress when I go to work.


ATTORNEY: Doctor, how many of your autopsies have you performed on dead people?

WITNESS: All my autopsies are performed on dead people. Would you like to rephrase that?


ATTORNEY: ALL your responses MUST be oral, OK? What school did you go to?



ATTORNEY: Do you recall the time that you examined the body?

WITNESS: The autopsy started around 8:30 p.m.

ATTORNEY: And Mr. Denton was dead at the time?

WITNESS: No, he was sitting on the table wondering why I was doing an autopsy on him!


ATTORNEY: Are you qualified to give a urine sample?

WITNESS: Huh….are you qualified to ask that question?


And the best for last:

ATTORNEY: Doctor, before you performed the autopsy, did you check for a pulse?


ATTORNEY: Did you check for blood pressure?


ATTORNEY: Did you check for breathing?


ATTORNEY: So, then it is possible that the patient was alive when you began the autopsy?


ATTORNEY: How can you be so sure, Doctor?

WITNESS: Because his brain was sitting on my desk in a jar.

ATTORNEY: I see, but could the patient have still been alive, nevertheless?

WITNESS: Yes, it is possible that he could have been alive and practicing law.


Another judicial pearl of wisdom

Too good to pass up:

One does not ordinarily maintain an area as a lawn with the intention of using it, and allowing others to use it, as a road. See Proulx v. D’Urso, 60 Mass.App.Ct. 701, 704 n. 2 (2004)

Carlson v. Fontanella, No. 07-P-1410. , decided today by the Appeals Court

The best part, I think, is that they needed to cite another case for that proposition.

Once Again, the Newspapers Get it Wrong

So you may have read in the Boston Herald today that “Twice as much goes to defending suspects than to prosecuting them”.  And then of course there was this companion articles on how “Court appointed lawyers are quick to support their pricey practice”.

I was a journalism student in college, so I’m familiar with the byline and how the process works.  But the fact of the matter is that these two stories are just bad journalism, unsupported by any facts but the meaningless figures on a spreadsheet.  Mr. Dwinell, who wrote both pieces, did little more than look at a spreadsheet, get some quotables, and write the story.  He put no effort whatever at understanding what he was writing, and now misinformation is spreading throughout the city of Boston and the state of Massachusetts.

I’m not writing here to defend defense salaries, either bar advocates or CPCS attorneys.  From my point of view, we are all vastly underpaid for the services we provide, which has its own ripple effect throughout the criminal defense system.  We do this not out of love of money, but for something greater.


No, I’m just here to say to Mr. Dwinell that his story makes a mockery of what journalism is supposed to be – intelligent discussion based on analysis, not scandal.  These stories are filling with comments from the public about how the figures vastly misrepresent the actual costs.  (For one, notice how no mention is made of how much any of the DA’s make, and yet even Stephanie Page’s salary is displayed with fanfare.  I’ve seen DA’s salaries – they’re public record – and there are more than a few of ‘em who make what Steph Page makes.  But that wouldn’t be proper journalism in Mr. Dwinell’s view apparently.)

Look, our jobs are hard enough as it is.  We don’t need to defend our wallets as well as our clients – they’re pretty light.  We don’t have a band of merry police officers who do our investigations for us.  We don’t have state crime labs we can access.  We don’t have access to any of the resources that the DA’s office gets access to (for free, as it’s been pointed out).

What this article is calling for is an outright Federalist agenda – to turn the trial process into a mockery of itself, to put forth a shell of a defense using shadow puppets and papier mache dolls and just file them away to the nearest jail or penitentiary.

Also, dude, could you at least throw an alleged in there?  “A Herald investigation shows half a billion taxpayer dollars have been lavished on private attorneys to defend killers, rapists and other indigent suspects over the past five years” – my J school teachers would have reamed me for the editorializing in this graph.  Second graph, no less.  Tsk tsk.

It’s articles like these that require us to have a voice out there in the wilderness.  Scandal journalism must be responded to in the Information Age.

And Mr. Dwinell?  You got it wrong today.


From Arizona State University, a war story of a different kind:

Cat Burglar [with baseball bat]: “Give me your wallet”
1L: [complies]
Cat Burglar: “And your guitars”
1L: [Complies]
Cat Burglar: “I think I’ll take the laptop too.”

The dialogue is fictionalized, but the event is real.  Below is an actual, verbatim exchange between the two:

1L: “Dude, no — please, no! I have all my case notes…that’s four months of work!”
Cat Burglar: “I’m going to smash your head in!”
Whereupon, 1L wrestles cat burglar’s baseball bat out of his hands and proceeds to beat the everliving snot out of him.

Think about that.  He could have had the dude’s wallet and guitars, no questions asked.  Because he got greedy, he got a few stitches and some felony charges.

ASU Law Student Botsios’ comment to reporters is something any law student, or former law student, can appreciate: “Don’t mess with my computer.  It’s my baby.”