Incentives Revisited: Which Lying Liars Do You Favor?

In response to the question of why, Nebraska Senior District Court Judge Richard Kopf provided a candid and detailed answer.  His answer consists of nine points, delivered with his usual aplomb and sense of humor, and with remarkable honesty.

This is noted because it’s easy to offer pat answers, the ones we fall back on regularly to win the point and avoid reproach, but which aren’t true.  Judge Kopf has answered with unvarnished truth, which is why he gets himself into a jam on the interwebz so often.

By my reading, Judge Kopf has largely validated Harold’s revelations, that it’s just a matter of going with the odds, and the odds favor the police.  A commenter notes that the explanations bear the scent of rationalizations, to which Judge Kopf asks, what, then, would be his motive to rationalize? I’ll take a stab. Continue reading

The No-Fly Secrets Revealed

For a case that could have, should have, disappeared with a swift oops and click of the delete button, it has reached a conclusion with the unfortunately unsatisfying result of no one being saved and a government so utterly impotent, incompetent, and unworthy as to warrant a brief chuckle.  If only it wasn’t our government.

The pathetic tale of how Stanford Ph.D. student Rahinah Ibrahim wound up on the no-fly list, not for any distant, evil conspiracy, or hyper-technical connection to anyone whose underpants might potentially burst into flames, but because someone getting a government paycheck ticked the wrong box, was bad enough. So someone screwed up. You’re a big country, United States. Own up to the error, fix it, apologize and move on.  But no, that wasn’t the way it would happen. And no, we may be large in size, but puny in spirit.

The trial was a fiasco, with the government screwing the opposition in deceitful, absurd ways.  Judge William Haskell Alsup, of the Northern District of California, was making all the right noises to suggest that he was about to explode, to teach the disingenuous lying scumbags who claim to represent us a damn good lesson.  But when the last huff and puff was over, it turned out to be no more than noise, the empty threats that never seem to happen when the targets of vitriol suck the government’s teet. Continue reading

If You Can’t Trust Prosecutors…

There won’t be much “value added” in this post, as its purpose is to direct readers to Doug Berman’s post at Sentencing Law & Policy on the fiasco of Cesar Huerta Cantu.  In that case, a typo, conceded by all, in the Guidelines calculations went unnoticed by all, including Cantu’s defense lawyer.

While this is not merely inexcusable, but frankly incomprehensible, it happened. When Cantu discovered the error, he sought to correct it via a §2255 petition, which the government opposed as untimely.   The depth of disingenuousness of the government in this case is so low as to shake any confidence in prosecutorial discretion.

The more I reflect on the typo-correction sentence commutation of federal prisoner Cesar Huerta Cantu (basics here), and especially after re-reading this 2255 dismissal order that followed Cantu’s own effort to have a court fix its own significant sentencing error, the more disgusted I feel about the modern federal sentencing system and especially about the U.S. Department of Justice and those federal prosecutors most responsible for Cesar Cantu’s treatment by our Kafkaesque system.

Continue reading

Honoring The Defendant’s Rights, Duct Tape Edition

Protip: If you get the opportunity to nail down the duct tape contract for the Alachua County, Florida, jail, seize it. It’s going to be huge!

On the one hand, Circuit Judge Robert Groeb’s steadfast belief in the right of a criminal defendant to be present for all critical stages of his or her case is admirable.  After all, it’s their life, and they should certainly be there to watch it go down the drain.  But his methods leave something to be desired.

On the 16th day of April, Judge Groeb issued an order of some concern.  It starts out innocuously enough:

In order to ensure that a defendant’s right to be present during the critical stages of his or her case, as required by Florida Rules of Criminal Procedure 3.130 and 3.180, is protected, the undersigned is implementing the following policy and procedure which shall apply to: (1) all courtroom proceedings arising out of Division ill ofthe Criminal Division ofthe Alachua County Circuit Court; and, (2) all first appearances by video from the Alachua County Jail presided over by the undersigned.

Continue reading

SWAT For Jesus

Charlie Eipper is a member of the SWAT team in Wichita Falls, Texas, but his team is more special than most.  He suffers from the usual rationalizations of the “Warrior Cop“:

Eipper has considered himself a professional warrior in the service of his country for the past 23 years. He served three years as a helicopter pilot in the Army, then 16 years on the Wichita Falls Police Department SWAT team as a sniper and team leader of the gang unit.

But he’s written a self-published book to explain his perspective:

When he killed a man in the line of duty on Jan. 10, 1999, he was confident that Jesus Christ condoned — even supported — his use of deadly force.

He spelled out his convictions — and the Bible’s support for them — in his book “Jesus Christ on Killing,” self-published March 5.

Continue reading

Judicial Incentives: Why Judges Won’t Condemn Cops (Update)

At WaPo Conspiracy, Chicago lawprof Will Baude picked up on five lying Chicago cops (which five?  this five. Not to be confused with any other five, or four, or six).  He calls the story remarkable, not because cops lie, but because they got caught lying.

One by one, five police officers took the witness stand at the Skokie courthouse late last month for what would typically be a routine hearing on whether evidence in a drug case was properly obtained.

But in a “Perry Mason” moment rarely seen inside an actual courtroom, the inquiry took a surprising turn when the suspect’s lawyer played a police video that contradicted the sworn testimony of the five officers — three from Chicago and two from Glenview, a furious judge found.

Okay, okay, settle down. Lest you feel all validated, bear in mind that the lie was proven by video. Yet again, we’re stuck in “but for video” mode. Continue reading

SCOTUSBlog’s Proper Place

Within the realm of blawgs, one stands out above all others.  While there is blog in its blood, SCOTUSBlog has long since left behind the days when Tom Goldstein ran it from his kitchen table in a bathrobe. If there is a question on anything Supreme Court, it’s the first place everyone turns, from the Times to me.

If there is a “legitimate” award handed out to a blog, SCOTUSBlog wins it. Like a Peabody. Heck, they won’t even let me see a Peabody unless I buy a movie ticket.  But there’s SCOTUSBlog, proudly accepting another win.  And did I mention it became a business?

But the real test of legitimacy is whether those outside the realm accept you as the real thing, as an entity of sufficient value that you are treated with the level of respect with which others are treated.  SCOTUSBlog took that test, and got spanked. Continue reading

Seven Days In The Erie Can

It’s not that the crime with which William Payne is charged will make him particularly sympathetic, even with the usual caveat that the guy is innocent because he has yet to be proven guilty.  Yes, we all adore the innocent, but the $25,000 bail was good enough to keep him coming back for more.

That is, until the assistant district attorney claimed he tried to run her down.  From the Buffalo News:

The Erie County assistant district attorney prosecuting Payne had claimed that he drove within a couple feet of her following the first day of his rape trial.

[Judge Kenneth] Case revoked Payne’s bail and declared a mistrial last Tuesday after prospective jurors waiting to be screened for possible selection in Payne’s rape trial overheard discussions at the Erie County Courthouse that the assistant district attorney was involved in some sort of traffic incident on Monday evening.

The assistant prosecutor said she had gotten a clear look at the driver’s face and identified him as Payne. Continue reading

Turkewitz Sued By “Liar” Doctor, Michael Katz

In a complaint eerily reminiscent of Rakofsky v. The Internet, Eric Turkewitz is being sued by former orthopedist turned defense expert witness Michael Katz because Queens Supreme Court Justice Duane Hart found Katz to be a liar.  And how, one might wonder, can we be certain, absolutely certain, that Justice Hart found Dr. Katz lying?  The complaint says so:

The surreptitious (and misleading) videotape should have resulted in an immediate mistrial, but Justice Hart inexplicably concluded that Dr. Katz lied concerning the length of the examination despite the fact that he clearly testified he could not remember how long the examination took. Justice Hart proceeded to berate Dr. Katz both on and off the record during numerous subsequent proceedings and inexplicably demanded that Dr. Katz contribute money towards a settlement with plaintiff. Justice Hart called Dr. Katz, among other things, a “no good liar” and a “thief” and implied that he was a “spy” with “little beady eyes.”

The problem is laid bare that Katz, having gotten slammed by the judge as a liar, Continue reading

Death Plus Hate

When word broke of the Kansas murders by 73-year-old White Supremacist Frazier Glenn Cross, the cries for hate crime prosecution immediately rang out.  After all, if anyone deserved to be prosecuted for a hate crime, it was this killer.

As Judge Kopf notes, the murders of three people were the height of irony.

[A] former “Grand Dragon” was going on a shooting spree at the Jewish Community Center and nearby retirement village in Kansas City. The shooter killed three people. Two were Methodists and one was Catholic.

The oldest victim was a physician and a grandfather who was taking his grandson, the second victim and a 14-year-old singing sensation, to an audition at the Center. The third victim was a Catholic woman who worked as an occupational therapist assisting the visually impaired. She was visiting her mother at Village Shalom. Thankfully, no Jews were killed or injured. Continue reading

Deception, Once Removed

Once a week, an email comes in announcing the greatest way to get new “leads” ever. All I have to do is hitch my reputation to some internet scheme that blatantly lies to the public, and clients will flock to me.  One of my favorites is this:

So what if the scheme is deceptive, since it’s not me saying these things, right?  After all, some non-lawyer (or new lawyer) decided to dwell in the gutter of entrepreneurship, and they’re the ones running the scheme. The lawyer just signs up to get cases. He has no say about what the scammers are doing.

Well, thankfully, the Indiana Supreme Court held that the lawyer is responsible for the deceptive and unethical practices of the lead-gen website scheme to which he lends his name, his reputation and support. Continue reading

Sealed With A Kiss (Update)

Those charged with the security of the United States of America from threat say that the threats are real, and they are doing what they have to do to save us from harm. And I believe them.  Not because I know anything more than anyone else, but because there has been harm and there are forces out there in the mist that do not look kindly upon my homeland.

So why then am I not an acolyte of Stewart Baker?  Because this is nothing more than a “belief,” something I choose to accept in the absence of evidence.  It’s faith. And faith only takes me so far.  The government occasionally reveals stories of its successes, but they tend to show less success and more manufacture of a success where no threat would exist if the government had kept its nose out of it.

On the other hand, there are far too many stories of harm happening to good people at the government’s hand in the name of protecting us, and these stories provide foundations that don’t require me to squint hard, cover my ears and merely believe. They allow me to know.  And what I know isn’t pleasant. Continue reading

An Unholy Trinity

There are three players in the school to conviction pipeline: the school. The police. The judge.  When one of the three demonstrates some element of objectivity and reasonableness, issues that arise with regard to students’ conduct manage to get handled without absurd consequences. But when the trinity defers to each other, absurdity ensues, as it did at South Fayette High School.

The underlying story, only touched upon here and the full details of which are provided at the above link, was that a student with an intellectual disability was being bullied in class, and the school failed to address it. He decided to record a day in class for his mother, after which he brought to his principal, Scott Milburn.  The principal heard the audio recording and required him to delete it, then called in the police.

Principal Scott Milburn called South Fayette Township police Lieutenant Robert Kurta to the school to interrogate her son in the presence of Associate Principal Aaron Skrbin and Dean of Students Joseph Silhanek. The defendant testified before Judge McGraw-Desmet that he was forced to play the audio for the group and then delete it. Love says by the time she arrived at the school, her son was surrounded by school officials and the police officer and was visibly distraught. She says Principal Milburn advised her that her son was “facing felony wiretapping charges” because he made a recording in a place with an expectation of privacy, and that Officer Kurta agreed. Continue reading

Legal Advice, At $2 Per Minute

Victor Medina sent me an email from his Apple iToy questioning whether anyone would have the nerve to solicit a sex worker at the wage being offered for a lawyer “position” on Craig’s list:

Seeking Attorneys for online legal services (pay – $2 per minute)

So I pulled out my handy-dandy calculator and ran the numbers. That would be $120 per hour, which would bring a smile to many an indigent defenders face.  Is this a problem?  Well, perhaps the problem is that, aside from the 5 minute minimum (again, with the calculator, that would be $10), there is no assurance that anyone gets any more.

The business offering this windfall is called LawModo, which explains its purpose in this video: Continue reading

Getting Along With Your Ex

In his on-going deconstruction of D. C. Magistrate Judge John Facciola’s order denying the government’s warrant to search all the emails of its target, Orin Kerr at WaPo Conspiracy takes the court’s Second Memorandum Opinion to task. The government lost again, for having done nothing more than switching some language from Exhibit A to B, cosmetic changes as the judge called it.

Judge Facciola’s new opinion reminds me of why I think it is necessary for such reasonableness issues to be litigated ex post in the context of adversarial litigation rather than announced ex ante in response to ex parte warrant applications. The reasonableness of executing the warrant is something that ordinarily would be analyzed ex post in the context of adversarial litigation.

In his first order, the judge strongly hinted that the better solution was to allow the keeper of the emails, in this case Apple, to search for the government, then turn over only those emails that were responsive to the government’s need for evidence. Or, the government could just knock down Apple’s door and raid the place, if the warrant is approved. Continue reading

Weev Goes Home and So Can You (Update)

In breathtakingly short order, the Third Circuit has issued its decision in United States v. Andrew Auernheimer a/k/a Weev.  Weev won.  Tor Ekeland picked him up last night, just in time to audition for the next Hobbit movie.


And lest anyone think that the Weev has grown soft and contemplative in the can, his twits (no doubt by his friends in Weev’s name, since Weev was in prison at the time) show otherwise. Continue reading

Too Simple

Yet again, marketing guru Seth Godin has managed to put into words one of the things that has long pissed me off but defied my ability to explain.

Lock in is what happens once you have a lot of followers on Twitter… it’s not easy to switch. Same with all social networks. And operating systems too–it takes a lot of hassle to walk away from iOS.

Once a company has achieved lock in, one way to grow is to appeal to those that haven’t been absorbed (yet), to change the product to make it appeal to people who need it to be simpler, dumber and less powerful, because (the company and its shareholders understand) the power of the network becomes ever more irresistible as it scales.

Forget, for a moment, that he uses Twitter as an example. It doesn’t matter. His point is that you create website/product/system A and it works. It gains traction. People like it, use it, enjoy it. Continue reading

When The Bully Tells The Truth (Update)

Following the tragic suicide of Rutgers student Tyler Clementi, the State of New Jersey did what so many advocates demand: pass a law. Deemed the “toughest” anti-bullying law in the nation, the applause could be heard loud and clear.  And as too often occurs, the zealous “do it for the children” folks knew that it would bring about a perfect world where no child’s feelings would ever be hurt again.

Lice.  Head lice, to be precise.

The Rutherford Institute is challenging New Jersey’s law because lice.  No child wants to be called a carrier of lice.  Except, maybe they are the carrier of lice.  From

John Whitehead, president of the Rutherford Institute, said the enforcement of the law is problematic. Schools should be safe, he said, but well-meaning statues “are Orwellian in nature and inevitably run afoul of the Constitution.”

“How far do you take this, especially with children,” he asked. “Free speech in some instances is hurtful.” Continue reading

A Warrant Technicality

The New York Post, never shy when it comes to emotive headlines, spelled it out in a way that couldn’t help but make its readers’ blood boil at the ineffectiveness of the legal system to make sure the bad guys go down.

Judge tosses evidence in gun bust on warrant technicality

And if that’s not enough to make you wonder how law-abiding citizens can survive these crazy, criminal-loving judges, the story that follows will surely do the trick.

A Brooklyn federal judge has tossed critical evidence against a alleged crack-dealing Queens gang member busted with an assault rifle, throwing his case into turmoil, court records state.

Judge Jack Weinstein voided evidence against Shakeel “Blam” Wiggins last week because an NYPD cop didn’t properly fill out a search-warrant application that turned up the weapon as well as a handgun and a cocaine cache last September, court papers say.

The ruling will likely allow Wiggins, a prior felon, to walk. Continue reading

Revenge Porn: Appeal To Reason or Emotion

Bob Ambrogi and J. Craig Williams did a Lawyer 2 Lawyer interview on Legal Talk Network with Lee Rowland of the ACLU and Marc Randazza on the propriety of using criminal laws to stop revenge porn.

In the second half, they bring Mary Anne Franks in to debate the issue.  It’s a fascinating juxtaposition of Appeal to Reason versus Appeal to Emotion. Guess who was on which side?

Best line of the broadcast was from Lee Rowland:  “Criminal law is a blunt instrument for regulating human dysfunction.”  As experience has taught us over and over.

Further, your affiant sayeth naught.