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from the trialdex library

  • 360 FEDERAL CRIMES (2020) is a 550 page field guide to the most commonly charged federal crimes. Authoritative and thoroughly indexed.
  • A DETECTIVE'S GUIDE TO INTERROGATION LAW (2020) is a complete manual on the law of interrogation written for law enforcement officers. It covers—in plain language, and with illustrative case examples—every important legal principle.
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    recent blog posts

    October 2020

    Amazon Advertising—product targeting
    Amazon Advertising—keyword targeting
    Fifth Circuit posts 2020 civil instructions

    September 2020
    "May 2020" Ninth Circuit revisions to its Manual of Model Criminal Jury Instructions
    "May 2020" Ninth Circuit revisions to its Manual of Model Civil Jury Instructions
    Some notes regarding the 2020 Seventh Circuit criminal instructions
    The Kindle version of A DETECTIVE'S GUIDE TO INTERROGATION LAW is free this week!
    New edition of the Seventh Circuit criminal instructions

    archived posts
     

    trialdex blog

    Welcome to the trialdex blog. While you are here, be sure to check out the other free trial resources linked on the trialdex front page, including the jury instruction alerts.

    October 2020

    Amazon Advertising—product targeting

    This is a continuation of the discussion below about advertising my books on Amazon. To bring you up a bit, the keyword strategy described below has been disappointing so far; I am seeing no discernable bump in sales from it. I'll keep watching it, but it is clearly time to try "product targeting." I am going to be a bit conservative this time, and just run one product targeting campaign for one book, A Detective's Guide to Interrogation Law.

    I picked out four competing books that come up on the first couple of pages when I used the search term interrogation, and harvested their ASINs. Commercially published books usually have ISBNs, ten and thirteen digit numbers used by book stores to identify individual books. Amazon uses the ten-digit ISBN as the ASIN if the book has one, and assigns its own ten-digit ASIN if it does not. The ASIN/ISBN will be on the product page, or show up as the first ten-digit number in the product page's URL.

    Creating a product targeting campaign is the same as for a keyword targeting campaign until you get about halfway down the campaign page. Under Targeting, you select Product Targeting. It then defaults to Categories, and suggested Criminal Procedure Law as a category. That's too broad and, as noted above, I wanted to target specific books, so I clicked on Individual Products, and then Enter List. I then entered my harvested ASINs (ISBNs). That generated a list of the books with suggested bid amounts much lower than the default 75-cent bid. I lowered my bids accordingly and filled out the rest of the form. Pretty easy, really.

    I'll check back later and see how it went.

    (10/15/20) (permalink)

    Amazon Advertising—keyword targeting

    I have from time to time posted about my experiences selling books (360 Federal Crimes and A Detective's Guide to Interrogation Law) on Amazon, and I'll continue that conversation with this post.

    Back in August I talked briefly about advertising on Amazon. In short, I noted that I had been using "Amazon Advertising," but did not spend much time learning about it before starting. I just selected the default entries when setting up my the "campaigns" for the books, and placed a fairly high (70 cent) bid for impressions.

    At that time my only "product" was 360 Federal Crimes. It had an extraordinarily low click-through rate (CTR) (.09%) (people who see my ad don't often click on it), but a ridiculously high number of people who clicked on the ad bought the book. So my cost-per-click (CPC) (21 cents) and my advertising cost of sales (ACOS) (.27%) were extraordinarily low. As an indication of how crazy low my ACOS is, the Amazon average ACOS is 30%, so mine is less than 1% of that. The ads were responsible for less than ten percent of my sales, but the cost was nominal (eight bucks), so I did not make any changes.

    Sales have slowed a bit, so I thought that it would be a good idea to take a closer look at advertising on Amazon, and launch new campaigns. There is no shortage of Web pages, on Amazon and elsewhere, providing advice on this, but most were difficult to understand (for me, anyway). Also, the terms Amazon uses are not intuitive and have changed over the years. Amazon's self-publishing service is called KDP, which stands for "Kindle Direct Publishing" (it used to be called "Create Space," a service that Amazon acquired and later renamed KDP). The word "Kindle" suggests eBooks, but it encompasses paperbacks (print-on-demand) as well. In 2018 "Amazon Marketing Services (AMS)" was renamed "Amazon Advertising," and the name and availability of various Amazon advertising packages changed as well.

    Amazon has about a half dozen selling options, including some only available to "professional sellers." However, if you go to the Advertising solutions for KDP authors page, you only get two options: Sponsored Products and Lockscreen Ads. Lockscreen Ads appear when people power up their Kindle devices. There seems to be a strong consensus among Amazon KDP sellers that these ads don't provide real value, so I won't discuss them further. So that leaves me with Sponsored Products.

    Each Sponsored Product campaign is limited to a single product, so there would be separate campaigns for the print and eBook versions of each of my books. On my original campaigns, I figured that the links would ultimately go to an Amazon page with both versions of the book, so I did a single campaign for each book. This time, I am going to do separate campaigns for each format of each book. I can't say why there would be an advantage of doing it that way, but the prompts seem to push you in that direction.

    The setup for a Sponsored Products "campaign" begins by querying you for a campaign name, start and end date, and daily budget. On my earlier campaigns, I set my budget at $10, which was never triggered. I'll stay with that, at least until it starts getting triggered.

    It next asked whether I want to do manual or automatic targeting. I think that I had it on automatic before, but this time I want to experiment with manual targeting.

    It then asks you about your campaign bidding strategy. Some sites counsel caution here, suggesting that you start with dynamic bids-down. Because of my low ACOS and the small amount of dollars involved, I decided to go with dynamic bids, but I'll keep a close eye on this one, especially for eBook sales on the Detective's Guide (don't want to spend a lot per sale on a three dollar item). There are also options for "top of search (first page)" and "product page." The former is self-explanatory, the latter has to do with the "Add to Cart" page. I decided to go 300% for top of search, and leave the other at 0%.

    I chose custom text for the ad format (you type in the actual text lower on the form): "Miranda and other interrogation rules explained in plain language with illustrative case examples" for the Detective's Guide, and "A field guide that covers the most commonly charged federal crimes, covering the elements, required mental states, defenses, definitions, DOJ policies, and sentence enhancements" for 360 Federal Crimes.

    The next decision was whether to do keyword or product targeting. I plan to do both, but let's begin here with keyword targeting (product targeting would be a separate set of campaigns, and I'll talk about it in my next blog entry).

    Amazon did not initially suggest any keywords for the Detective's Guide, but suggestions would pop up as I typed in my keywords. I ultimately chose criminal law, criminal procedure, interrogation, police training, law enforcement, law of confessions, and confessions law as my keywords. I was not sure at first whether to use both "interrogation" and "interrogation law," since both appear in the book's title, and will bring up the book anyway. I tested this by searching for both terms before adding the advertising. My book is the second item that comes up if I search for "interrogation law," but is six pages deep if the search term is "interrogation." So I selected interrogation, but not interrogation law, figuring that the former term needed some help.

    I then had to choose "broad," "phrase," or “exact” matches for each of these terms. A broad match picks up synonyms and misspellings. A phrase match allows you control over word order, and allows keywords that include words outside the phrase, but would not pick up phrases where other words are inserted (i.e., police training would pick up police training materials but not training police or police officer training. An exact match requires the exact words used in the search. In all of these matches, Amazon will ignore plurals and mispellings.

    My choices for the eBook version of the Detective's Guide (and I am not claiming to be any sort of expert) were confessions law (exact), law of confessions (exact), criminal law (exact), criminal procedure (exact), interrogation (broad and exact), police training (exact), and law enforcement (phrase).

    I did not do any negative keyword targeting; could not think of a good one.

    As indicated above, I'll come back later this week with notes about product targeting.

    (10/12/20) (permalink)

    Fifth Circuit posts 2020 civil instructions

    The Fifth Circuit just posted a new revised version of its Civil Jury Instructions ("with revisions through June 2020"). This is the first revision since 2016, and the changes are too numerous to detail here. I have posted a redline/strikeout version here, and the 2016 revision is archived here.

    (10/05/20) (permalink)

    September 2020

    "May 2020" Ninth Circuit revisions to its Manual of Model Criminal Jury Instructions

    The Ninth Circuit has also revised its Manual of Model Criminal Jury Instructions. Just as with the civil instructions, they are dated "May 2020," but just went up the other day. The delay is likely COVID-19 related.

    The notable changes were as follows:

    • Instruction 3.1 DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW and 7.1 DUTY TO DELIBERATE add language admonishing jurors not to be affected by unconscious bias. It was already part of the preliminary instructions (DUTY OF JURY); now it gets repeated multiple times.
    • Instruction 7.13 (POST-DISCHARGE INSTRUCTION) is new, and addresses what jurors may or should say about the case after the trial.
    • The elements list for Instruction 8.13 (RECEIVING BRIBE BY PUBLIC OFFICIAL (18 U.S.C. § 201(b)(2))) has been amended as follows:

      First, the defendant was a public official;
      Second, the defendant [solicited demanded] [sought] [received] [accepted] [agreed to receive or accept something of value, [specify the thing of value], in return for [being influenced in the performance of an official act] [being influenced to commit or allow a fraud on the United States] [being persuaded induced to do or not to do an act in violation of defendant’s official duty]; and
      Third, the defendant acted corruptly, that is, intending to be influenced [in the performance of an official act] [to commit or allow a fraud on the United States] [to do or to omit to do an act in violation of the defendant’s official duty]. A public official acts "corruptly" when he or she accepts or receives, or agrees to accept or receive, a thing of value, in return for being influenced with the intent that, in exchange for the thing of value, some act would be influenced.
      The Comment notes that the agreement need not be explicit, and the defendant need not intend to follow though, citing United States v. Kimbrew, 944 F.3d 810 (9th Cir. 2019).
    • The Comment to Instruction 8.71 (FIREARMS—USING, CARRYING, OR BRANDISHING IN COMMISSION OF CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME (18 U.S.C. § 924(c))) now defines a "crime of violence" as an offense that is a felony and "has an element the use, attempted use, or threatened use of physical force against the person or property of another," citing United States v. Davis, 139 S.Ct. 2319 (2019) and 18 U.S.C. § 924(c)(3)(A)). "Physical force" is "force capable of causing physical pain or injury," and includes "the amount of force necessary to overcome a victim’s resistance," citing Stokeling v. United States, 139 S.Ct. 544, 533-55 (2019), and Johnson v. United States, 559 U.S. 133, 140 (2010)). It also provides that a crime of violence for purposes of § 924(c)(3)(A) is one whose commission requires proof of both the specific intent to complete a crime of violence, and a substantial step actually (not theoretically) taken toward its completion,and that it does not matter that the substantial step is not itself a violent act or even a crime, citing United States v. Dominguez, 954 F.3d 1251, 1255 (9th Cir. 2020). “The definition of ‘crime of violence’ in § 924(c)(3)(A) explicitly includes not just completed crimes, but those felonies that have the ‘attempted use’ of physical force as an element.” Thus, “when a substantive offense would be a crime of violence under 18 U.S.C. § 924(c)(3)(A), an attempt to commit that offense is also a crime of violence.”
    • The Comment to Instruction 8.83 (FRAUD IN CONNECTION WITH IDENTIFICATION DOCUMENTS-AGGRAVATED IDENTITY THEFT (18 U.S.C. § 1028A) now notes United States v. Gagarin, 950 F.3d 596, 604 (9th Cir. 2020), for the proposition that, when a defendant forged another person’s signature on a life insurance application as part of a scheme to defraud the insurance company, the forgery constituted a “use of another person’s name” in a way that furthered and facilitated the scheme to defraud, even if the other person had consented to the use of the signature.
    • The Comment to Instruction 8.143A (HOBBS ACT—ROBBERY OR ATTEMPTED ROBBERY (18 U.S.C. § 1951)) now asserts that 18 U.S.C. § 1951 requires specific intent as an element, citing Dominguez.
    • The Comment to Instruction 8.147 (LAUNDERING OR ATTEMPTING TO LAUNDER MONETARY INSTRUMENTS) now asserts that “nexus with interstate commerce is both a jurisdictional requirement and an essential element of the offense,” but that the connection "need not be extensive," citing United States v. Costanzo, 956 F.3d 1091 (9th Cir. 2020).

    I have posted a PDF showing the changes.

    (09/24/20) (permalink)

    "May 2020" Ninth Circuit revisions to its Manual of Model Civil Jury Instructions

    The Ninth Circuit has revised its Manual of Model Civil Jury Instructions. They are dated "May 2020," but just got posted. (the Web site still labels them December 2019). The changes were as follows:

    • The Comment to Instruction 9.11 (PARTICULAR RIGHTS—FIRST AMENDMENT—"CITIZEN" PLAINTIFF) adds a note from L.F. v. Lake Washington School District #414, 947 F.3d 621, 626 (9th Cir. 2020) ("members of the public do not have a constitutional right to force the government to listen to their views...[a]nd the First Amendment does not compel the government to respond to speech directed toward it (citations omitted).").
    • The Comment to Instruction 9.12 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEARCH—GENERALLY) now notes Blight v. City of Manteca, 944 F.3d 1061, 1067 (9th Cir. 2019) (concluding search of property with two residences supported by probable cause that suspect controlled whole premises).
    • The Comment to Instruction 9.24 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PERSON—DETENTION DURING EXECUTION OF SEARCH WARRANT) now notes Blight v. City of Manteca, 944 F.3d at 1068 (holding that detention of elderly person not per se unreasonable).
    • Instruction 9.25 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PERSON—EXCESSIVE (DEADLY AND NONDEADLY) FORCE) has been renamed, and the Comment now notes Orn v. City of Tacoma, 949 F.3d 1167 (9th Cir. 2020), and Tuuamalemalo v. Greene, 946 F.3d 471, 477 (9th Cir. 2019) (concluding that "use of a chokehold on a non-resisting restrained person violates the Fourth Amendment").
    • New instruction 9.26A (Particular Rights—Eighth Amendment—Convicted Prisoner’s Claim of Sexual Assault)
    • The Comment to Instruction 17.3 (COPYRIGHT—SUBJECT MATTER—GENERALLY (17 U.S.C. § 102)) notes that the Supreme Court "has ruled that no copyright protection is available for material authored by a judge or a legislative body acting in an official capacity. See Georgia v. Public Resources, ___U.S.___, 140 S. Ct. 1498 (2020)."
    • The Comment to Instruction 17.5 (COPYRIGHT INFRINGEMENT—ELEMENTS—OWNERSHIP AND COPYING (17 U.S.C. § 501(a)–(b))) now notes Great Minds v. Office Depot, 945 F.3d 1106, 1110 (9th Cir. 2019).
    • The Comment to Instruction 17.17 (COPYING—ACCESS AND SUBSTANTIAL SIMILARITY) deletes a discussion of the inverse ratio rule, replacing it with a citation to Skidmore v. Led Zeppelin, 952 F.3d 1051, 1069 (9th Cir. 2020) (en banc).
    • The Comment to Instruction 17.22 (COPYRIGHT—AFFIRMATIVE DEFENSE—FAIR USE (17 U.S.C. § 107)) now notes Tresóna Multimedia, LLC v. Burbank High School Music Ass’n, 953 F.3d at 648 (observing that use of song in show was for "nonprofit educational purposes and the resulting work was transformative") (noting that although “qualitatively significant” portion of original work was used, because of transformative nature of new material, this factor “did not weigh against fair use”) (commenting that due to transformative nature of newly created work, consumer interested in original work would not substitute the newly created work).
    • The Comment to Instruction 17.25A (COPYRIGHT—AFFIRMATIVE DEFENSE—EXPRESS LICENSE) now notes Great Minds v. Office Depot, 945 F.3d 1106, 1110 (9th Cir. 2019) ([A claim for copyright infringement fails “if the challenged use of the work falls within the scope of a valid license.") (Federal courts “rely on state law to provide the canons of contractual construction, but only to the extent such rules do not interfere with federal copyright law or policy.").
    • The Comment to Instruction 18.1 (SECURITIES—DEFINITIONS OF RECURRING TERMS) now defines "investment contract," "untrue statement of material fact," and "broker."

    I have posted a PDF showing the changes.

    The Criminal Instructions have been revised as well. I'll try to get a summary of those changes posted shortly.

    (09/23/20) (permalink)

    Some notes regarding the new 2020 Seventh Circuit criminal instructions

    The recent changes to the Seventh Circuit Pattern Criminal Jury Instructions are mostly clerical. For example, the "Preliminary Instructions," which formerly appeared after the statutory instructions (numbered 10.01, 10.02, et seq.), now appear at the beginning of the instructions (and are now unnumbered). There are a few substantive changes:

    • The instruction entitled "DEFINITION OF FEDERAL HEALTH CARE OFFENSE" has been removed.
    • The § 1344 instructions have been thoroughly rewritten.
    • "18 U.S.C. § 1344 MULTIPLE FALSE STATEMENTS CHARGED" has been removed.
    • There is a new instruction covering 18 U.S.C. § 1347(a)(2) (OBTAINING PROPERTY FROM A HEALTH CARE BENEFIT PROGRAM BY FALSE OR FRAUDULENT PRETENSES).
    • The 18 U.S.C. § 2244(b) instruction now includes the jurisdictional element.

    The old edition is still posted, but will likely be removed soon to avoid confusion. It will, in any event, continue to be archived here.

    (09/22/20) (permalink)

    The Kindle version of A DETECTIVE'S GUIDE TO INTERROGATION LAW is FREE this week!

    As noted below, my new book, A Detective's Guide to Interrogation Law, is available on Amazon in paperback and Kindle eBook editions. I am running a promotion today though Friday, giving away the Kindle edition for FREE.

    I have been discussing self-publishing on Amazon from time to time, including the steps I have taken to market the books. The reason for the free Kindle promotion is to generate some reviews. If you pick up a free copy of the book, please take a couple of minutes to review and rate the book on Amazon.

    Also, if you have a blog or Web site, please consider posting a note and link about the Kindle promotion. If you are considering reviewing the book on your site, email me at contact@trialdex.com, and I'll send you a free paperback copy.

    (09/14/20) (permalink)

    New edition of the Seventh Circuit criminal instructions

    The Seventh Circuit jury instruction site has replaced its "PATTERN CRIMINAL JURY INSTRUCTIONS OF THE SEVENTH CIRCUIT (2012 Ed.) (plus 2015-2019 changes)" with a new file titled The William J. Bauer Pattern Criminal Jury Instructions (2020 edition). I'll have more to say about the changes shortly.

    (09/13/20) (permalink)

    August 2020

    A Detective's Guide to Interrogation Law

    My new book, A Detective's Guide to Interrogation Law, is now available on Amazon in paperback and Kindle eBook editions. I believe that it is the most complete and authoritative manual on the law of interrogation ever written for law enforcement officers. The legal principles are stated in plain language, followed by illustrative case examples. If you click on the links and go to the Amazon pages, you will be able to look at the first couple of chapters.

    I am happy to mail free copies of the book to anyone willing to review the book, either on their site or on the book's Amazon page; email me at contact@trialdex.com if you are interested in doing this.

    I'm not sure how I am going to market this. I might try some conventional advertising this time. I have sold enough copies of my last book, 360 Federal Crimes to fund something. As always, I post my trials and travails here. I am very interested in sharing the experiences of others in self-publishing.

    (08/24/20) (permalink)

    Things are quiet here because ...

    The federal circuits have not posted any jury instruction revisions since Covid-19 shut things down. One would think that this is precisely the sort of activity judges could work on at home, and that this would be a good time to do it, but I am guessing that there are formal procedures that require meetings, and that these meetings are being shelved for now. The Seventh Circuit put up a set of patent instructions up for comment earlier this Summer, but that's it.

    I have had a decent run of sales for 360 Federal Crimes; a couple hundred copies sold in hard copy. It's enough to encourage me to start work on another book, this time for the police officer market. The working title is A Detective's Guide to Interrogation Law, and the current draft of the Foreword looks like this.

    A Detective’s Guide to Interrogation Law is the most complete and authoritative manual on the law of interrogation ever written for law enforcement officers. It covers—in plain language, and with illustrative case examples—every important legal principle. Use it to solve real world problems like this:

    • Compelling suspects to unlock computer and cell phone passcodes
    • The difference between Garrity and Kalkines warnings, and how to use them while questioning public employees
    • Admissibility of admissions made by prisoners, probationers, or parolees as part of a treatment or rehabilitation program
    • The admissibility of a defendant’s silence when accused of a crime
    • Things an officer can say and do to avoid a finding of Miranda custody
    • Questioning prison and jail inmates without Miranda warnings
    • The application of the Miranda rule to questioning at borders or airports
    • Obtaining Miranda waivers from uncooperative suspects
    • How to lawfully question suspects who have invoked their Miranda rights
    • What officers should do when defendants change their minds about invoking Miranda rights
    • Questioning suspects who have been formally charged or who have attorneys
    • How to manage jailhouse informants
    • How to work with prosecutors on investigations without creating ethical problems for them
    • Tactics for addressing insanity and diminished intent issues
    • Your obligation to advise foreign nationals of their consular notification rights
    • Working with foreign police officers in foreign countries

    On the chance that someone working in law enforcement reads this, and has some interest in reviewing an advance copy, please email me.

    I guess that I should also report back on my experience with my Amazon "advertising campaign." I pretty much just went with the defaults, and placed a fairly high (70 cent) bid for impressions. My "product" has an extraordinarily low click-through rate (CTR) (.09%) (people who see my ad don't often click on it), but a ridiculously high number of people who click on the ad buy the book. So my cost-per-click is extraordinarily low (21 cents) and my advertising cost of sales (ACOS) (.27%) is extraordinarily low. The raw numbers are 4230 impressions, 38 clicks, and 25 orders, at a total cost to me of just under eight dollars. As an indication of how crazy low my ACOS is, the Amazon average ACOS is 30%, mine is less than 1% of that.

    I don't feel any incentive to bump my bid number; I am getting plenty of impressions. And I don't see any reason to end the campaign; I'm getting some sales out of the campaign (although the great majority of my sales are coming from word of mouth), and the cost is minimal.

    (08/13/20) (permalink)

    June 2020

    The Supreme Court did the right thing on qualified immunity

    The Supreme Court denied cert this morning in a number of "qualified immunity" cases. Justice Thomas wrote a dissent in one of these cases, Baxter v. Bracey. No other Justices joined in this dissent, and there were no other opinions in the case. But the reasons for the denials are easy to see.

    The Civil Rights Act of 1871, codified in part at 42 U.S.C. § 1983, authorizes lawsuits against state officials acting under color of law who deprive persons of "any rights, privileges, or immunities secured by the Constitution and laws." In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Supreme Court authorized this sort of lawsuit against federal officials for violations of the Fourth Amendment.

    Two types of immunity apply. Some state actors, notably judges acting as such, Bradley v. Fisher, 20 L.Ed. 646 (1872), legislators performing legislative acts, Tenney v. Brandhove, 341 U.S. 367 (1951), and prosecutors during the judicial phase of a criminal process, Imbler v. Pachtman, 424 U.S. 409 (1976), are entitled to absolute immunity. These officials can't be sued for exercising these functions, even if they do so corruptly or maliciously. The rationale for this protection is that the threat of lawsuits from disgruntled parties would interfere with the exercise of independent decision making.

    Other state officials (police officers, teachers, administrators) do not have absolute immunity, but at least since Pierson v. Ray, 386 U.S. 547 (1967), they are protected by the doctrine of qualified immunity. Subsequent cases have established that these officials are protected unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was "clearly established at the time." See Reichle v. Howards, 566 U.S. 658, 664 (2012).

    Clearly established means that, at the time of the conduct, the law was sufficiently clear that every reasonable officer would understand that what he or she is doing is unlawful. Anderson v. Creighton, 483 U.S. 635, 640 (1987). This does not mean that there must be a specific holding that the conduct was unlawful. Id. But an existing body of law must have placed the unconstitutionality of the officer's conduct "beyond debate." Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011). The doctrine protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).

    Those interested in taking a deep dive into these issues should review the pertinent official civil pattern jury instructions and annotations. The most thorough treatments are found in the Third and Ninth Circuits, but you can use the trialdex jury instruction index to view them all.

    As a preliminary matter, it should be noted that § 1983 does not say anything about immunity. This was a judge-created doctrine that (at least in Pierson) was arguably rooted in the common law. In effect, the Court has been saying that the absolute and qualified immunity existed when the statute was enacted in 1871, and that if Congress had intended to deny that the immunities applied, Congress would have said so.

    There is some scholarship that casts doubt on whether a common law privilege existed at all in 1871, but, as a practical matter, there is no possibility whatsoever that the Court would rule that the absence of immunity language in § 1983 would, by itself, rule out qualified immunity, because a holding like that would void judicial immunity as well, something that the Court would never, ever, do.

    How does qualified immunity work? Here's an illustrative example. Police officers routinely searched passenger compartments of cars incident to an arrest between 1981 and 2009 under the authority of what was then known as the Belton rule: "[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." New York v. Belton, 453 U.S. 454, 460 (1981). The Supreme Court had further clarified that this rule applied to searches that took place after the arrestee was handcuffed and placed in a patrol car. Thornton v. United States, 541 U.S. 615, 618 (2004).

    This clear rule was abrogated in a 5-4 decision by the Supreme Court in Arizona v. Gant, 556 U.S. 332 (2009). The Gant Court observed that the Belton rule was "widely taught in police academies and that law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years," id. at 349, and that "[b]ecause a broad reading of Belton has been widely accepted, the doctrine of qualified immunity will shield officers from liability for searches conducted in reasonable reliance on that understanding." Id. at 349 n.11. The converse of this is, of course, that without qualified immunity, these officers would be liable under § 1983 for conduct that they were trained to do, and that was expressly permitted by then-existing United States Supreme Court case law (not to mention four members of the Gant Court).

    Justice Thomas' dissent in Baxter echoed concerns he had voiced earlier in Ziglar v. Abbasi, 137 S.Ct. 1843, 1870-72 (2017). He accepted Pierson, because it was "confined to certain circumstances based on specific analogies to the common law." However, the subsequent cases that established the objective "clearly established" standard did not undertake that analysis. Thomas favored the approach of asking whether immunity was historically accorded to the relevant official in an analogous situation at common law.

    Why didn't the other Justices agree? Overturning the many, many qualified immunity cases would raise significant stare decisis concerns, which "weigh heavily in the area of statutory construction, where Congress is free to change this Court's interpretation of its legislation." Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977). If the Court has been wrong about the existence or scope of qualified immunity all these years, one would have thought that Congress would have stepped in and either abolished the privilege or redefined it. Put another way, qualified immunity is not a constitutional issue, but a statutory construction issue. The best guidance on the meaning of statutes is the body that wrote them.

    It should be noted parenthetically that "legislative silence" arguments are often rejected in contexts that don't involve substantive rules and stare decisis. See, e.g. Pearson v. Callahan, 555 U.S. 223, 234 (2009). But abolishing the "clearly established" standard for qualified immunity falls squarely under Illinois Brick.

    In that context, it is worth noting that Congress has not been shy about amending § 1983 (it was last amended in 1996). And far from being hostile to the doctrine, Congress has explicitly added qualified immunity provisions in other statutes. See, e.g., 6 U.S.C. § 1104(b)(1) (immunity for reports of suspected terrorist activity); 14 U.S.C. § 645 (medical quality assurance records).

    Even more to the point, Congress is looking at the issue right now. The recently introduced Justice in Policing Act of 2020 would eliminate qualified immunity altogether for law enforcement and corrections officers, even where they act in good faith, or reasonably believe that the conduct was lawful at the time that the conduct was committed. It would no longer matter whether the alleged violation of rights was clearly established at the time, or that the defendant could not reasonably have been expected to know whether the conduct was lawful.

    On what sort of record would the Court, rather than Congress, modify or abolish qualified immunity? The Court has previously recognized a number of practical advantages of qualified immunity. It mitigates:

    • "the expenses of litigation”
    • "the diversion of official energy from pressing public issues"
    • "the deterrence of able citizens from acceptance of public office"
    • "the danger that fear of being sued will 'dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.'"

    Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982).

    These are factual assertions that may or may not be well grounded empirically. There have been attempts to test them, but the results are not definitive. See Aaron L. Nielson & Christopher J. Walker, A Qualified Defense of Qualified Immunity, 93 Notre Dame L. Rev. 1853, 1875-83 (2018). Ultimately, any studies in this area fall into the category of soft science, with results likely to mirror the prejudices of their authors. These concerns are magnified when the "studies" are introduced in the record in amicus briefs, or otherwise not really tested in the record below. To the extent that these studies have value, Congress has a far better ability query experts and fund its own studies (it has the Congressional Research Service; the Supreme Court doesn't).

    In short, if § 1983/Bivens qualified immunity is a doctrine that should be revisited, that is a job for Congress, not the Supreme Court. The Court properly denied cert in these cases.

    (06/15/20) (permalink)

    An update on the 360 FEDERAL CRIMES promotion

    I have been posting lately about the trials and travails of self publishing on Amazon KDP:

    I am going to continue doing this for the benefit of others thinking of doing the same thing. The topic of 21st century legal publishing is very interesting, and I am happy to chat about it by email, too. For those of you picking up this discussion based on a google search, welcome to the site.

    As previously noted, I decided to give away the ebook for three days for two reasons: 1) to generate some reviews, and 2) to sell some of the paperbacks. I ended up with about 375 downloads, generated one review, and sold nine paperbacks. I'm happy with the download and paperback numbers, but a bit disappointed about the lack of reviews. If you downloaded the book, and are reading this, please give me a review on the Amazon page!

    The next step is to mail out some review copies of the paperback. I have some folks in mind, but if you have a Web site that does book reviews, and want a review copy, please email me.

    I'm also thinking of spending some of my royalties on advertising. Amazon KDP has some low cost options that I am interested in trying, but I need to study them a bit more. I'll post about that, too.

    (06/08/20) (permalink)

    The Kindle version of 360 FEDERAL CRIMES is FREE for the next three days!

    For the next three days I am giving away free copies of the Kindle version of 360 Federal Crimes.

    The purpose of this is to generate Amazon reviews and to spread the word about the book's availability (and perhaps generate some sales for the paperback version, a format that has independent merit). So if you download the book, please take a moment to share your thoughts about it on the Amazon review page, and let other folks know about the giveaway.

    The Amazon note about the sale is a bit confusing, because they put a link to the "Kindle unlimited" version on top of the free Kindle book offer. Unless you already have Kindle unlimited, you'll want to check the second box.

    (06/01/20) (permalink)

    May 2020

    Received my paperback copies of 360 FEDERAL CRIMES

    It took a couple of weeks; perhaps delayed a bit by COVID-19 priorities.

    I am very pleased with the results. I was a little concerned with not having the ability to spec paper weights or have personal contact with the printer (Amazon handles all of that), but the printer did a terrific job. The cover looks great, and there's no page bleed. These are high quality paperbacks.

    The book is available now on Amazon in paperback and Kindle formats. Each format has its own strengths, and it is priced low enough to make owning both a reasonable purchase.

    (05/26/20) (permalink)

    A few words about 360 FEDERAL CRIMES

    As noted below, I have a new book out that is available in paperback and Kindle format on Amazon. If you go there and click on the "look inside" link, you will see that a generous portion of the book is available, including the Foreword, which describes the book in some detail.

    The book is intended to cover most of what you need to know about substantive federal criminal law in one paperback volume. This required considerable concission, which may present a challenge for the general reader. Although I am hopeful that non-lawyers, e.g., law enforcement officers, will buy the book, I resisted any temptation to dumb it down (in my experience, law enforcement officers who would buy a book like this have considerable legal sophistication). In any event, the book is more in the nature of a field guide rather than a treatise, that is, something that one would regularly consult rather than read cover to cover. In that respect, readers will find the 120-page index helpful.

    It is a theme of the trialdex Web site, explained here, that federal pattern jury instructions are extraordinarily valuable and authoritative, and, consistent with that view, I began my research for each crime by consulting every official instruction and annotation. This was easy to do, using the trialdex federal jury instruction index. This provided as many as eight treatments of the same statute, and ensured that I was not going to miss an important issue.

    In each case, I followed up by looking for pertinent articles published in the Department of Justice Journal of Federal Law and Practice (before 2018, the United States Attorneys' Bulletin). These are detailed practice guides written by federal attorneys with extensive experience or supervisory authority over the subject matter. I also checked for Reports by the Congressional Research Service ("CRS Reports"). I did conventional research as well, but the pattern instructions were my most valuable resources.

    Put another way, making an assertion, and footnoting it with a citation to an official pattern instruction, is, I think, more compelling and useful authority than the more conventional approach of supporting the assertion with a string of case citations. This is particularly true for a survey of federal criminal statutes. It also has the added benefit of helping attain a manageable page count.

    The crimes are placed in the order that they appear in the United States Code. The preferred approach was to start with the crime's name and statute number, followed by an excerpt of the pertinent text of the statute and an elements list, and ending with an annotation. This approach could not be strictly followed for each crime; often legal principles would apply to a range of statutes, and I did not want to repeat the same text over and over again. So some discussions were moved to the beginning of the book, and in some cases the annotations were grouped before or after the individual crimes. I hope that the rationale for each individual decision regarding the placement of an annotation will make sense to the reader.

    By self-publishing, I have kept the price of the book ($24.99 for the paperback, $9.99 for the Kindle version) way below what's normal for a legal text. By way of example, I have another book in print with a major legal textbook publisher that lists at $1300. On that book, I have the advantage of professional marketing. On this book, all I have is word of mouth. So I hope, if you have a good experience with the book, that you will pass along a good word to friends who may be interested, and take a couple of minutes to post an honest review on Amazon.

    (05/08/20) (permalink)

    Some reflections after self-publishing on Amazon KDP

    I have spent the better part of a year writing a book, 360 Federal Crimes. Click on the link or the image to see how it looks on Amazon.

    I co-authored a couple of books in the 1980s, one of which, the Law of Confessions, is annually updated and still in print. From 1995 to 2018 I worked for the Department of Justice Office of Legal Education, where I edited and wrote dozens of books, practical skills manuals for government lawyers that are not publically available.

    A *lot* has changed since the 1980s, and for a lot of reasons not worth reciting here, I was determined to self-publish this time. I have a working knowledge of how publishing works—how to create what we used to call a camera ready copy, how to spec print orders, the proper fonts, gutters, how to create a cover, etc.—but did not want to get involved in processing and shipping book orders or maintaining an inventory. I have no idea how successful the book will be, and do not wish to put up a lot of money up front (ISBNs alone cost $$$). Also, I wanted to publish an ebook edition. After quite a bit of research, I have decided, at least initially, to go all in on publishing with Amazon.

    I wrote the book using Microsoft Word, and then converted it to PDF (there are more sophisticated products for writing books, but Word is what I know and have). Amazon initially rejected my PDF with a cryptic "error processing interior" message. Some online research suggested that this might be an Internet transfer corruption issue, or perhaps a problem with fonts that have not embedded. I pulled up the File/Options/Save menu in Word and checked the "Embed fonts in file" and "Embed only the characters used in the document" boxes before saving in PDF/A format, and after a couple of tries the upload was accepted.

    The cover file, once again created in Word and converted to PDF/A, was offset a bit when I previewed it. The problem turned out to be my margin settings, which needed to be zero on all four sides. Amazon has a free Cover Creator application that I did not use, and that might have saved me some time.

    The other part of this was the creation of a Kindle ebook. I had very limited experience with Kindles (I like to read physical books). But there is no doubt that ebooks are part of the market, and Amazon Kindle has a near-monoply position in that market, so I went to work.

    I think that it is possible to simply upload a Word or PDF file, and let Amazon convert it. But my book has 1448 footnotes, probably a thousand internal cross-references, thousands of links to statutes and cases, and a 120-page index, and I wanted to have hands-on control of all of those links. So I elected to convert the book to HTML, carefully edit the HTML, and convert the HTML to the MOBI format used by Kindle.

    The first step was converting the Word file to HTML. I have a lot of experience with file conversions. My rule of thumb is never to use file conversion programs, including the one that is part of Word. They spit out hopelessly complex HTML that is impossible to edit. Instead, my first step was to use macros to insert the bold and italic tags, and to similarly tag the footnotes. Next, replace all the paragraph breaks (Word ^p) with HTML <p> tags (I don't use </p> tags; they really don't do anything).

    The next step was to save the file as a plain text file, and go to work adding other essential HTML tags. There are not many of these; Kindle wants your HTML as vanilla as possible, because they want the initial control of how their books look, and want the customers, not the creators, to make any changes in that format (this makes perfect sense to me). I use Notepad++; be sure to set your encoding to UTF-8.

    This took *hours*, but I am very happy with how it turned out. The book is full of links that work as intended, and it looks great on Kindle devices.

    The MOBI conversion process was a bit of a challenge. It actually involves using a command line program, not an issue for folks from my generation, but probably intimidating for others. I had unsatisfactory results following instructions on Amazon and on various blogs and Web sites. I finally got error free code by *precisely* following the instructions on this site (well, I did get "warnings" about my unclosed <p> tags, but as noted above, those warnings may be safely ignored).

    The last step was pricing the book. I did a bit of online research, and tried to price it compared to other similar books (one outlandish comparison; the list price on my other (professionally published) book is a cool $1300). But the pricing process is very complicated, because the royalties vary based on how you price the book, and the level of your participation in programs like Amazon Select and Kindle Unlimited. I ended up selecting every option, with the purpose of seeing what works.

    In closing, I don't want to pose as any sort of expert here. And it's way to early to call this a success. For one thing, I have not seen a physical copy of the book. But so far, so good. I'll post again when I know more.

    (05/06/20) (permalink)

    Supreme Court to consider retroactive effect of Ramos

    See the post below regarding the Supreme Court's decision last month in Ramos v. Louisiana, and a link to my post from last year explaining the decision's unlikely retroactive effect. Today, the Court granted cert in Edwards v. Vannoy, No. 19-5807, to determine whether "the Supreme Court’s decision in Ramos v. Louisiana applies retroactively to cases on federal collateral review."

    On a personal note, I spent half of my career prosecuting cases in Oregon, one of the two states that authorized non-unanimous verdicts. I can't recall that anybody ever challenged or complained about it. The rule presumably cut down on the number of hung juries, but not to any significant degree. Some defendants would probably prefer to take their chances on a 10-2 verdict to the expense and stress of multiple trials.

    (05/04/20) (permalink)

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