Notes

Andrew Brown compares personalized search results from Google with everybody’s favorite P.G. Wodehouse characters:

The more perfectly Google plays the role of a valet, a butler, an unshockable servant who knows our own desires better than we do, the less we will learn about the world which knows and cares nothing for our wishes. . . .[¶] [T]he more that Google becomes like Jeeves, omniscient, omnicompetent, and endlessly flattering, the more it reduces us to Bertie Woosters.

Which is debatable. Some of us routinely bend over backward in the search field to find critical, unfavorable, and otherwise challenging sources. (After reading some of Walter Kaufmann’s The Faith of a Heretic the other day, I spent quite a long time on Google trying to find unflattering remarks about Kaufmann.) When shopping for books on Amazon.com, I almost compulsively go straight to the one-star reviews because I think people who give good reviews are generally just attention-hogs and not really interested in sharing helpful information about the book.  (I also like to comment on the really bad one-star reviews and explain why they are deficient, which probably surprises no one who knows me, or who has read my blog for long enough to remember when it was considerably more acerbic.)

So I think personalized search results from Google are generally a good thing, provided searchers are critical thinkers to begin with. But that’s been the problem with online search for as long as anyone can remember. (Because, you know, how did we live before Google? Obviously, we didn’t. I propose a third calendar era: A.G., or “After Google.” This year is probably 13 A.G.)

Brown passes by, almost without remark (see the sarcastic “Thanks a lot, Eric” that closes paragraph three), the really troubling thing in his piece—this quote from Google CEO Eric Schmidt:

If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place. But if you really need that kind of privacy, the reality is that search engines, including Google, do retain this information for some time.

Really? There are no innocent secrets? No rushing undercurrent of evolutionary history in the subconscious mind, no roaring animal desires trying always to break through the rational veneer of the neocortex? Why do you think people prefer to defecate in private? There’s nothing wrong with excreting your waste; we just don’t want other people keeping tabs on when and how we do it. Maybe we are embarrassed, but no one seriously thinks we shouldn’t be. People read books about fictional characters, and sometimes about real-life characters, who behave in ways that the readers would never behave. But reading is private, and so is the individual exploration of the heights and depths of existence. People do not like to reveal their occasional thoughts of murderous rage, or their feelings of lusty desire, or their ignorance of apparently well-known facts. None of those things are wrong. Nobody should ask people to purge themselves of their human nature. We ask only that our fellow members of society control their actions, not their thoughts, which would probably terrify us.

And searching for something on Google is not doing something. If you search for “how to commit murder,” you haven’t done anything. Maybe you’re researching a novel you want to write, or maybe you’re indulging your private curiosity, with no intent of ever actually committing the crime. And maybe, like when you need to excrete some waste, you don’t really want anybody to know. So when Schmidt says of people who don’t like Google retaining information about their searches that “maybe you shouldn’t be doing it in the first place,” he demonstrates not just insensitivity, but shocking ignorance about the nature of his fellow human beings.

I use Google every day. (And Gmail, and Google Docs, and Google Finance, and Google Scholar.) With so much information available online, we need a tool to help sort it out; we need a Jeeves. But I would prefer that our Jeeves not have the foolish and ignorant views of Eric Schmidt.

A few nights ago, I attended a social event that, unlike a lot of my life, was not crawling with other lawyers. So I had the opportunity to experience the wonderful rainbow of popular responses to lawyers. Non-lawyers—my civil procedure professor called them “The Blessed Ones”—generally fall into several different categories: Respecters, Venters, and Know-It-Alls, in order of decreasing frequency.

Respecters come in a variety of flavors, but they share an understanding that lawyering is difficult and respect those of us who do it for a living. Venters also vary. Some are passive-aggressive, leading off their otherwise unbridled criticisms with transparently disingenuous phrases like “I’m not a lawyer but…” Others are bubbling over with seething hatred for lawyers and make no apologies, except to say things like, “Present company excluded, of course,” which is especially meaningless when they are anything less than longtime friends: it’s obviously a sham; what do they know about how I practice?

Which leaves the Know-It-Alls. Sometimes these are people who have dealt with a lot of lawyers, or they have a lawyer in the family, or they have seen a lot of movies or TV shows about lawyers, or whatever, and somehow they believe they have three-quarters of a legal education and all the experience needed to assert legal opinions. Respecters are always pleasant, Venters are usually sympathetic or at least apologetic to individuals, but Know-It-Alls are more troublesome. Many of them are covert Venters, but with an adequate response can generally be herded into the Respecter group, at least for the duration of a single social event, thereby avoiding undue discomfort for everyone involved. (But an attempt to make an adequate response can still be dangerous. See below.)

I briefly encountered a Know-It-All the other night. For some reason, this person mentioned the upcoming trials in Federal District Court of suspected terrorists Khalid Sheikh Mohammed and others. You can have whatever political opinion you like about those trials, but criminal trials in the federal court system are governed by legal rules. If you want to comment on the legal rules, you should know what you are talking about. But this nonlawyer Know-It-All the other night had other ideas and said something like this: “It will be a circus. They will probably say nobody read them their Miranda rights and the judge will let them off.”

Huh?

We were in the middle of a holiday party, so I didn’t want to launch into an educational seminar on Miranda, especially considering how Know-It-Alls often respond to those. Most of them have a long list of grievances against the legal system, many of which are misinformed, but all of which will require detailed explanations of law, history, policy, or all three, to satisfy the Know-It-All. The conversation will often turn into a quiz, where the Know-It-All is just trying to induce the lawyer to say something that will offend the Know-It-All and trigger a temporary transformation into a Venter. (“What do you mean ‘activist judge’ is a meaningless term?” And then you can get to something that starts to sound like the South Park-ean “They took our jobs!“) So an attempt to avoid undue discomfort during a social occasion can actually contribute to causing it.

At any rate, this idea that Miranda is a get-out-of-jail-free card for criminal defendants could not be more wrong. I don’t know where people get this idea, unless they are just of the mindset that criminal defendants (and especially suspected terrorists) have no civil, human, or other rights, and giving them anything, even the modest protections of Miranda, is tantamount to letting murderers—no, terrorists!—coach Little League. But Miranda doesn’t do that.

Here, in a nutshell, is what Miranda means: If the police have you in custody (which basically means they have constrained your freedom of movement) and they interrogate you without first obtaining a knowing and intelligent waiver of your right to remain silent and have counsel present during questioning, then your statement in response to that interrogation can be excluded from the evidence admissible at trial. So unless the entire prosecution case hangs on your statement given during custodial interrogation in the absence of a Miranda waiver, then a failure by the police to “Mirandize” you or “read you your rights” will almost certainly not result in an acquittal. There is usually other evidence that is sufficient to convince a jury that the defendant is guilty beyond a reasonable doubt.

Simple, right? Even so, the popular but absolutely untrue myth of Miranda pervades our culture, leading otherwise intelligent and generally well-informed people to make asinine suggestions, like the one that Khalid Sheikh Mohammed and other suspected terrorists—or anyone—tried in federal court (or state court) will be acquitted for a failure to Mirandize them.

I can’t fault people for being Respecters or Venters. Everybody has different experience that justifies one or the other kind of response to lawyers. But while I would like to say that Know-It-Alls are unforgivable, the fact remains that we in the legal profession have apparently done a piss-poor job of educating the general public about the law, leaving that task instead to wingnuts on talk radio and other promulgators of ill-informed half-truths. Should I have corrected that Know-It-All the other night? Maybe.

During an earlier phase of the conversation that night, I may have lifted this person’s views of criminal defense attorneys by explaining that many of them see their job not as keeping criminals out of prison, but as keeping prosecutors honest. “That never occurred to me,” said the Know-It-All. Maybe I would have had similar good luck with a response to the Miranda remark. But I was tired and not in the mood.

The problems in our legal system run deep and wide. But too many members of the general public don’t even have enough accurate knowledge of how the system actually works to think about those problems intelligently. You might be a Venter, a Respecter, or a Know-It-All, for whatever reasons in your personal experience. But if you are a nonlawyer encountering a lawyer in a social situation, you might try a fourth approach and be a Reasonable Skeptic. Instead of just respecting the lawyer for doing  hard job, or venting against all lawyers, or trying to show that you know lots of legal stuff, too, why not just ask the lawyer what he or she thinks? Most of us will be glad to tell you, especially if you are not asking for personal legal advice about a specific situation.* But be skeptical and ask questions about the legal system. It might be educational. Nobody actually knows all, but you might improve what you do know, and that might keep you from being one of those insufferable Know-It-Alls.

*If you do want personal legal advice about a specific situation, most of us prefer to meet with you in our offices. Just ask for a card and call for an appointment.