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Nominations are Open for the 6th Annual Jdog Memorial Best Criminal Law Blawg Post

It’s that time of year again! Time to recognize the effort and thoughtfulness of criminal law blawgers with our annual Best Criminal Law Blawg Post, which has been dedicated to the memory of our dear friend, Joel Rosenberg.

Unlike the other Beauty Pageants in the blawgosphere, the idea here is to provide a platform to revisit the excellent work done over the past year.  Past winners of the JDog prize are luminaries of the blawgosphere,  Ohio’s Jeff Gamso, Connecticut’s Gideon Strumpet, Texas’  Mark Bennett, Arizona’s Matt Brown and Fishtown’s Leo Mulvihill.

Here’s the deal:

  • Anybody can nominate a post for the honor, including their own.  SJ posts are off limits.  You can nominate them anonymously, with great fanfare, just by name or with a detailed explanation of why you think a post is the best.  It can be a post from a criminal defense lawyer, a prosecutor or a non-lawyer, provided its subject is criminal law.  It can even be a post by a lawprof. You can nominate up to five posts.
  • Nominations can only be made in the comments here. No emails, phone calls, text messages, fruit baskets or lovely cards with deeply personal messages.
  • For this contest, and for this contest only, I will allow links to be included in comments to the posts (not the blawgs, but the actual posts) nominated.  Spam links will be treated harshly.
  • This is a chance to think back over the past year and give everyone some great posts to read, to ponder, to discuss and maybe even change some minds.

I invite anyone and everyone to offer the best the blawgosphere has in criminal law.  Spread the word, and let others know that this is their opportunity to show their stuff, get a backlink, and let the rest of the blawgosphere know what they’re doing.

Nothing here at Simple Justice is eligible, so don’t waste time with it.

The winner will be announced on New Year’s Day.

Judging will be entirely on my shoulders, and I will be as arbitrary and capricious as I please, so there’s no complaining about the choice.  That said, I will do my best to select the blawg post that best reflects our finest work, our highest tradition, our deepest thoughts and our best purpose in putting words on a computer screen.  For anyone who doesn’t trust me to be fair, find a better offer elsewhere.

One important point: It’s up to you, the readers of criminal law blawg posts, to show me that you are willing to put in the effort to give a damn about the blawgosphere by nominating the best posts. If you can’t be bothered, then I can’t be bothered.  You enjoy reading some great stuff about criminal law, so this is the opportunity to let the writers know. And if it’s too much effort to nominate anyone, then it tells me that we’re wasting our time here. See how that works?

Finally, to address the perpetual issue, efforts to bribe me with baked goods will not assure a win. However, it can’t hurt and is defintely worth a try.

2011, “They Will Be OK,” Revisited

Oh sure, Chad Chadwick now gets an outpouring of support, but what about then?  What about the efforts of the brave SWAT team?  This was how it was reported in 2011:

Officers were called to the Century Apartments in Sienna Plantation on Sienna Springs Boulevard around 9 p.m. Tuesday after a man called 911 to say his friend was thinking about doing something violent.

Missouri City police said the friend, Chad Chadwick, refused to come out of his third-floor apartment after a fight with his wife.

Violence? Wife?  This was serious. Dangerous. This calls for the heavy armor.

After several hours of failed negotiations, SWAT officers barged in and used a Taser gun to get Chadwick under control and handcuffed him at 1 a.m. Wednesday, officials said.

Before he was handcuffed, police said Chadwick punched two officers in the face.

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Schools Have Rules: When Blind Boys Go Bad

Sometimes boys hit other boys. Girls too, but let’s pretend for the sake of this post that gender isn’t really important, because the boy who hit another student here is 8-year-old Dakota Nafzinger, and he’s just a boy.  Whether he hit a boy or a girl isn’t clear.

There’s no indication that the hit was a big deal, beyond the fact that it happened. It’s not good that it happened, but then, it’s not the first time that a boy hit a boy either.

Except Dakota is blind, and he hit another boy with his cane.  That’s the long white thing that blind people use because they can’t see.  I add that as a tip from my buddy, The Blind Guy, who informs me that there are still a lot of people out there who can’t figure out why blind people have long white canes.

A representative of the North Kansas City School District said that the cane is property of the district that was given to him during enrollment, and it was taken away when he hit another student with it. She said a pool noodle was given as a substitute because he needed something to fidget with.

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Look For The (Police) Union Label

Breezing through the news, the manly image of Cleveland Police Patrolman’s Association boss, Det. Jeffrey Follmer, hit the screen.  He struck me as comical, the cartoon version of a third-rate city’s tough-guy cop.  Just too much of a dumbass not to laugh at.

But after some contemplation of this bald beagle, it occurred to me that as buffoonish as he may have seemed, he was likely sitting there with a gun strapped to some part of his body, and Tamir Rice was still dead. There should be no laughing at Follmer. Continue reading

The Circular Failure Of Objectivity

Reversing the Appellate Division, First Department, the New York Court of Appeals held in People v. Graham Reid that a search incident to arrest can’t be based on the very evidence found during the search.  Kinda seems obvious, notwithstanding the fact that the defendant lost before the trial court and the intermediate appellate court, which affirmed his conviction for which he’s serving an indeterminate sentence of two to four years for possession of a switchblade.

The defendant was stopped for drunk driving:

[P.O. Jacob] Merino stopped the car and approached it. He saw that defendant’s eyes were “very watery” and his clothing was disheveled. There were plastic cups in the car’s center console, and the officer detected an odor of alcohol.

No big deal, even though, as it later turned out, the defendant’s blood alcohol content was zero.  As in not drunk in the slightest. But, there is always that smell, which unfortunately can’t be captured as evidence, and so we must rely on the officer’s senses and honesty. Continue reading

The Glossy Untruth

In a post about some of the inexplicably ridiculous things coming out of 7th Circuit Court of Appeals Judge Richard Posner’s mouth about privacy lately, Judge Richard Kopf included this in a comment:

In my experience, particularly with Title III interception applications, government’s agents and lawyers are careful not to lie or mislead. By the way, in this District no agent appears seeking a Title III order (or even a search warrant) without an Assistant United States Attorney who has carefully reviewed the submission appearing with the agent. With Title III interception requests, the applications cannot even get to a judge without approval from a senior DOJ official at Main Justice after careful review.

To anyone who has never had to make a Franks motion, this may offer some measure of comfort.  A Title III warrant is for wiretapping, one of the most intrusive measures available to the government. The idea that the feds are listening in should strike fear in the hearts of all, and only happen (if at all) under the most limited of circumstances, and then with the strictest of limitations.  After all, when a person is whispering words of love to a spouse, there really isn’t a good reason for some G-men recording it for playback at the Christmas Party. Continue reading

But For Video: A Mistake of Law

Following the Supreme Court’s watering down of police expectations in Heien, a few people asked for examples of what they were talking about when they approved “objectively reasonable” mistakes of law.  Fortunately, there is a video out of Victoria, Texas.

Dashcam video from the incident posted by Raw Story, above, shows officer Nathanial Robinson, 23, pull over Pete Vasquez, 76, at Adam’s Auto Mart in Victoria, Texas, as “Under Ground Kings” by Drake blares from the cruiser’s radio. Continue reading

The Environmental Cleanup of Toxic Academia (Update)

The emotional pleas for understanding the profound trauma that students are enduring in the aftermath of the Garner and Brown grand juries are coming fast and furious.  Harvard 3L and law review editor, William Desmond, gave it his best shot, only to be ridiculed for his melodramatic prose and vapid reasoning.

Oberlin student, Della Kurzer-Zlotnick sent an impassioned plea to her professor as a privileged white student on behalf of students of color, for accommodations, only to be met with a terse “no.”  This outraged her enough to issue a trigger warning based on his dismissiveness.  In the New Yorker, Harvard crimlaw prof Jeannie Suk, in a curiously conflicted post, explains why law professors are giving up teaching about rape:

But asking students to challenge each other in discussions of rape law has become so difficult that teachers are starting to give up on the subject. About a dozen new teachers of criminal law at multiple institutions have told me that they are not including rape law in their courses, arguing that it’s not worth the risk of complaints of discomfort by students. Even seasoned teachers of criminal law, at law schools across the country, have confided that they are seriously considering dropping rape law and other topics related to sex and gender violence. Both men and women teachers seem frightened of discussion, because they are afraid of injuring others or being injured themselves.

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Lefty Hate

When I read Omar Mahmood’s parody, Do The Left Thing, I was rolling on the floor. The kid is good. I mean, he has it.  Oh sure, no doubt he was going to rile up all the folks who bleed with every papercut, but that’s the point of satire.  Piss them off. Make them think. It’s a great change of pace from wallowing in feelings of misery.

That Mahmood was met with the whine of the tenderhearted, his satire created a hostile environment at his other paper, was par for the silliness course.

And until recently, he enjoyed writing for both of the campus’s newspapers: the institutional, liberal paper, The Michigan Daily, and the conservative alternative paper, The Michigan Review.

After penning a satirical op-ed for The Review that mocked political correctness and trigger warnings, The Daily ordered him to apologize to an anonymous staffer who was offended and felt “threatened” by him. He refused and was fired.

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Heien v. North Carolina: Close Enough

It’s no surprise that the only Supreme Court justice who has any meaningful trial experience in a criminal courtroom is the lone dissenter.  Bad as Fourth Amendment law has developed, at least there was one leg of the stool that still held weight: the law.  The law is the law, for better or worse. Ignorance of the law is no excuse, goes the platitude.

No more. In Heien v. North Carolina, by a 6-2-1 decision, the Supremes have completed the fuzzying up of search and seizure law that began with Whren, where phony “objective” justifications for a stop were approved even though they bore no connection with reality or truth. The Court then followed through to mistakes of fact, built on Brinegar, but raised to an art form in Herring, where police incompetence that created the “mistake of fact” was sufficiently reasonable to cover their screw-up.  But the third leg of the stool was the law; all else aside, there still had to be a violation of law. Not close to a violation. Not a kinda, sorta , law is too hard for dopey cops to know, violation of law. An actual, real, hard, passes muster with a court, violation of law.

No more.  Chief Justice John Roberts opens his salvo thusly:

As the text indicates and we have repeatedly affirmed, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Riley v. California, 573 U. S. ___, ___ (2014)…To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them “fair leeway for enforcing the law in the community’s protection.”

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Twit or Tweet (Update: The Twit Lives!)

When Twitter first “happened,” I was unimpressed. So much so that, in my curmudgeonly way, I announced that I would not use twitter.

And now there’s Twitter.  It’s a horrible name, but it probably plays better with younger folks (the type of people who rarely use the word “folks”).  I heard of Twitter, but didn’t have the slightest clue what it was.  Kevin O’Keefe has cleared this up for me.  I feel so on top of technology today.

I was so above it all. And I was wrong, as soon became obvious.

When first I was told of twitter, I scoffed.  Obviously, it was for people whose thoughts fit within 140 characters.  I meant that in a pejorative way.  You wouldn’t find me on twitter.  That was a few thousand twits ago.

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Only Facebook Knows

Three hundred and eighty-one people had their Facebook accounts subjected to search, and as of now, nobody knows why.  The targets of the search remain unaware, as they were never notified that a warrant was issued long ago.  And there are a whole lot of targets, whose online life now sits in a box in the New York County District Attorneys’ office, including whatever pictures they once thought were private and only for the viewing of the select few.

The prosecution claims it doesn’t have to, because the judge who signed the warrant, Melissa Jackson (the granddaughter of Supreme Court Associate Justice Robert Jackson), also sealed it so that no disclosure would be required.  Without anyone knowing about it, no target can challenge it, whether to suppress the contents or, if there is no justification for the prosecutors to pass around their jpegs during office parties, destroy their booty.

But Facebook, to its enormous credit, didn’t do the great belly flop and let it slide. From Jim McKinley at the New York Times:

The search warrants were signed last year by Justice Melissa Jackson on the strength of a 96-page affidavit that has never been made public. Continue reading