Judge Block’s Curious Parsimony

Eastern District of New York Senior District Court Judge Frederic Block is something of an enigma. In his book Disrobed, he straddles a fence between boldness and, well (and I mean this in the nicest possible way), cluelessness.

While Judge Block tells this story to show his boldness, fairness and concern, stepping up to reveal impropriety, it inadvertently reveals that he was totally unaware of what was happening around him. Given that this was well-known by every criminal defense lawyer in the county, it’s disconcerting that he had no clue until he read about it in the paper.

It’s as if he means well, but the entire world happens around him and, until someone smacks him in the head about it, just doesn’t register. What makes this even more astounding is that Fred Block, the lawyer, was the guy who won Clayton, giving rise to the motion for dismissal in the interest of justice. It was a huge win, a great win. And Fred Block did it.

He’s been a federal judge since 1994, when President Bill Clinton nominated him to fill Eugene Nickerson’s seat, so it’s not as if he’s just discovered that sentencing is part of a federal judge’s job.  Yet, his decision in United States v. Nesbith seems to reflect an epiphany. Continue reading

Nicholas Kristof And The Comfort of Ad Hominem

Nicholas Kristof, the noted racist and sexist token neocon columnist at the New York Times, tried a thought experiment.

In a column a few weeks ago, I offered “a confession of liberal intolerance,” criticizing my fellow progressives for promoting all kinds of diversity on campuses — except ideological. I argued that universities risk becoming liberal echo chambers and hostile environments for conservatives, and especially for evangelical Christians.

As I see it, we are hypocritical: We welcome people who don’t look like us, as long as they think like us.

It’s rare for a column to inspire widespread agreement, but that one led to a consensus: Almost every liberal agreed that I was dead wrong.

“You don’t diversify with idiots,” asserted the reader comment on The Times’s website that was most recommended by readers (1,099 of them). Another: Conservatives “are narrow-minded and are sure they have the right answers.”

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Bond. Jane Bond

The remake of Ghostbusters with four women in the lead roles gave rise to a backlash because of its politically correct casting, which was then exacerbated when it was hooked to Hillary Rodham Clinton’s “woman card” candidacy.

To the surprise of Sony, Ms. DeGeneres announced on May 17 that her talk show had booked Mrs. Clinton — a friend, political ally and repeated past guest — to appear Wednesday on an episode for which she had already scheduled the “Ghostbusters” stars Melissa McCarthy, Leslie Jones, Kristen Wiig and Kate McKinnon….

But the not-quite-joint appearance came as less-than-welcome news to Sony, whose marketing team has been fighting to tamp down what it sees as a misogynistic, Internet-based assault on the movie. The first trailer for the new film, released in early March, became the most disliked trailer in YouTube history after a coordinated campaign by a group of mostly male naysayers.

Sony wants its movie to make money. If it can trade off the current trend of gender politics, great. After all, why else would they cast four women? But that doesn’t mean they believe in the political statement being imposed upon its movie, or that they want the movie to be inextricably connected to the candidacy of a woman for president. Continue reading

The Team Sport of Criminal Defense

Got a call from a law prof who was considering bringing a Qui Tam action (whistleblower suit) against a New York 18-B lawyer.  Section 18-B of the County Law provides for private lawyers to represent the indigent and be compensated by the county.

She told me of the things this lawyer did, pretty outrageous but for the fact that this was a common, bordering on pervasive, problem.  This shocked the prawf, who asked why other lawyers and judges don’t end this atrocity, which is not only tantamount to stealing, but extremely damaging to the client. The short answer is because lawyers don’t want to rat out someone on their team. Sometimes the thief is a friend. Sometimes he’s just a nice guy, aside from the fact that he’s a thief or incompetent.

And then there is the best, and worst, excuse: other lawyers know. Judges know. If they say nothing, why should a lawyer on the same team? Why should someone on the same side evoke the ire of his teammates when others don’t bother?

A few years ago, then-NACDL president Lisa Wayne wrote about this in the Champion, where she decried criminal defense lawyers being critical of their “brothers and sisters”: Continue reading

Abelove Played The Gap And Sabotaged The Prosecution Of A Cop

Did Troy Police Sgt. Randall French murder 37-year-old DWI suspect Edson Thevenin?  Maybe.

French told investigators that he fired eight rounds from his service weapon, killing Edson Thevenin, a 37-year-old DWI suspect who was unarmed. French opened fire when Thevenin’s car rolled into the officer’s legs, pinning him against a police cruiser following a brief pursuit, according to Troy police officials.

Two people who told police they witnessed the shooting, Keith Millington, 26, of Cohoes, and Phillip E. Gross III, 35, of Troy, told investigators they did not believe the officer was in imminent danger when he fired the rounds through Thevenin’s windshield. Millington told investigators he was very close to the incident and saw Thevenin’s car roll forward after the shots were fired, according to a person briefed on his statements to investigators.

If nothing else, there is a good chance that French fired eight bullets for no good reason, and that the “car roll” excuse was a lie. And even so, there remains a logical gap between killing Thevenin and the excuse, since killing a driver doesn’t prevent a car from rolling, and is likely to cause it to happen, as the witnesses claimed it did. But that’s just logic, which plays no particular role in “split second decisions” made by cops with guns. Continue reading

How Can You Tell When A Lawyer Is Lying?

When your world consists of unicorns prancing on rainbows, where nobody ever questions or challenges anything, it’s ripe for the pickin’s. And Derek Bluford picked and picked. And picked. You will think ill of him when you read the details of his crimes as set forth by Bob Ambrogi, but before you over-react, consider this.

For a man who is still a year shy of his 30th birthday, Bluford has found success as an entrepreneur, first starting California Legal Pros (CLP), a company that markets various legal services to both consumers and lawyers. then QuickLegal, a service that provides on-demand legal advice to consumers, and then most recently QuickLegal Practice Management, a cloud practice management platform for lawyers.

In 2014, Bluford was named a Techweek Los Angeles LAUNCH competition champion and was  recently selected to appear on the popular ABC television show Shark Tank. (As far as I can tell, he never actually appeared on any segment that was aired.)

Not too shabby, eh?  There are tons of adherents of the Future of Law gods who would give their left testicle, if they had one, to be in Bluford’s trendy square-toed shoes. Continue reading

Eight Justices And A Balancing Test

In the afterglow of the Supreme Court’s decision in Foster v. Chatman, one thing was painfully clear. The chasm between how the decision was viewed by those who actually pick juries and those who see law through a more distant lens was huge.  Why, in the face of academics and advocates cheering the wondrous outcome of ruling against the racist use of peremptory challenges by prosecutors to cleanse a jury of blacks, were criminal defense lawyers so, well, underwhelmed.

In his ground level explainer of the decision, Andrew Fleischman captured the problem:

It’s time to stop patting ourselves on the back for our “freedom.” For the occasional crumb of liberty that drops from eight unelected lawyers. We’ve replaced constitutional guarantees with an unwieldy pile of balancing tests.

I added the emphasis. Sue me. This is brilliantly insightful (which is my way of saying I wish I wrote those words, but I didn’t and he did). This is what the back-patters don’t get. In the trenches, where law actually happens and people’s lives are destroyed, we work with rules. Hard rules. Bright line rules. Black letter law.  Continue reading

Peter Thiel, Hero Of The Big Lie (Update)

I was asked by a reporter yesterday whether there was any First Amendment scholar who would back up the notion that Hulk Hogan’s lawsuit against Gawker didn’t violate the Free Speech and Press clauses of the Constitution. “Absolutely,” I replied, “but that’s because they’re willing to lie and have an agenda to push.” I was unhelpful.

Now that Peter Thiel has been outed as financier for Terry Bollea, the personality split from the wrestling clown, Hulk Hogan, in his suit against Gawker, the media was hot to trot on litigation financing, a concept that has been around for a while now, even if it hasn’t been on anyone’s front burner. Champerty and maintenance were once illegal. Barretry still is in most places.

Like most things legalish, if one can spin it to one’s advantage, to serve one’s agenda, people deny the downside and promote the virtue of their lie. It’s the American way, the end justifies the means when you like the end. Many who thought poorly of Gawker were happy to suspend the Constitution even though its application was obvious to anyone willing to be honest about the First Amendment.

It turns out that Thiel, who simultaneously supported free press when it was the sort of free press he thought worthy, had mounted a covert war against Gawker for its subsidiary, Valleywag, outing his sexual preference.  Continue reading

Peter Thiel Was Hulk Hogan’s Pay Pal

How often do you get to think about champerty and maintenance these days?  The words ring vaguely from the first year of law school, but they play little role in modern litigation, as they are archaic notions, that some outsider would finance litigation, whether for a piece of the action or other reasons. Those “other reasons” could be a belief in a socially utilitarian outcome, or to vindicate some personal butthurt.

Enter Peter Thiel, the co-founder of PayPal and a billionaire as a result. Thiel had a special hate on Gawker. Not like your hate because it’s such a horrible, disgusting, low-brow online media outlet reflecting our taste for the sordid. Thiel’s hate came from a Gawker subsidiary, Valleywag’s, effort to out him.

“Valleywag is the Silicon Valley equivalent of Al Qaeda,” Thiel said at the time.

Somebody really hated Gawker, and had the money to turn his hate into lawfare. Then came some clown in a bandana, and boom! Continue reading

Passionate Is Never An Excuse to Be Ineffective (Update)

It’s reminiscent of a particularly moronic discussion of lawyers acting like “jerks.” Some were simplistic enough to arrive at an easy answer: jerks are bad, so don’t be one. Others recognized that being a jerk can be one tactic in the toolbox. Be one when it inures to the client’s benefit.

The thing is, being a jerk all the time doesn’t make you a jerk, it makes you an asshole. It’s just not necessary. All attorneys should lead with civility and courtesy when initially interacting with opposing counsel. And they should strive to maintain that civility as best they can. But ultimately, the practice of law is not about you or your feelings. The practice of law is about what’s best for your client.

The line between the shallow thought at the surface and the deeper thought below may be thin, but it’s the difference between being effective and being narcissistic, indulging oneself at the expense of one’s client. An ugly exchange in a Las Vegas courtroom put this into context.

A 3rd-year public defender was trying desperately to keep her client from being put in jail on a violation of probation by Justice of the Peace Conrad Hafen.  This exchange followed: Continue reading

Why Does Heroin Make People Stupider?

Heroin is a bad drug, a terrible drug. Highly addictive and highly susceptible to overdose, it is not a drug to try for kicks, as it never ends well.  But that’s hardly new, as it was the popular drug of choice before crack became the popular drug of choice. The biggest difference at the time was that crack got users wired, whereas heroin put users to sleep. If they were lucky, they woke up when the heroin wore off.

Yet, that’s not the stupid of which I speak.  Rather, it’s the reaction to heroin as reflected in this Newsday editorial from 1979 yesterday.

Lawmakers nationally and locally are swinging into action to face a crisis that’s terrifying constituents: the skyrocketing number of deaths from addictions to heroin and prescription painkillers.

Nationally, 28,647 deaths were linked to opiates in 2014, and that number gave the drugs a grisly honor: opiate overdoses have overtaken car accidents to become the leading cause of accidental death in the United States.

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Race Neutral Reasons When Nothing Is Race Neutral

Andrew Fleischman is such a killjoy.  Deeply passionate people are kvelling over the Supreme Court’s 7-1 opinion in Foster v. Chatman, where the Court held that Georgia prosecutors exercised peremptory strikes to remove all blacks from the jury.

Among other tactics, the prosecutors had highlighted the name of every prospective juror who was black and marked it with a capital B, with an explanation at the top of the juror rolls indicating that the letter signaled the juror’s race.

Roberts took pains to parse all this evidence and noted that it did not comport withBatson v. Kentucky, a 1986 case that established the test defendants must use when challenging prosecutors’ racial motivations during jury selection.

“Despite questions about the background of particular notes, we cannot accept the State’s invitation to blind ourselves to their existence,” Roberts wrote, adding that circumstantial evidence about the trial in question must be subject to a “sensitive inquiry.”

Fleischman hates racism. So why is this killjoy not doing his happy dance? Because the win in Foster breaks no ground, changes no rule, offers no guidance.  The happy people like the outcome. The killjoys, like Fleischman, suck the joy (hence the name) out of the win. The reason is that it tells prosecutors to stop putting a “capital B” next to the names of the jurors they plan to strike, so as not to make a hard record of their racism, and then they’re home free. Continue reading