Short Take: Shaken Baby, 35 Years Later

It’s long been clear that what was once called “Shaken Baby Syndrome,” later renamed “Abusive Head Trauma” to pretend it’s not the same old sham, was nothing more than a phony diagnosis wrapped in pseudo-medical lingo to manufacture a crime when something terrible happened to a baby but no one knew what. After all, it was a baby, so someone must pay, even if no one did anything wrong.

The “syndrome” consisted of three medical criteria, “the trifecta of brain bleeding, swelling, and bleeding behind the eye.” Obviously, someone had to do something bad to a baby to make such horrifying things happen. The problem was that it wasn’t medically true and could just as well not be caused by anyone’s conduct. Continue reading

Moratorium Ends and The Mess Begins

It wasn’t my niche of law so I didn’t pay much attention to the caselaw relating to the CDC’s imposition of an eviction moratorium. I didn’t understand how such a thing could fall within the CDC’s authority, and even so, I didn’t understand how a governmental taking of private property could be constitutional. This isn’t to say that renters weren’t in desperate straits, but that doesn’t mean other people’s property was available for the government to give away. Still, there were people far more knowledgeable, and who cared more, about the issue, so I left it off my plate.

Come this Saturday, the moratorium ends. It could be extended, although that just kicks the can down the road. At that point, something is going to happen. At the moment, the federal government has a program to assist renters who can’t afford to pay. Whether it’s adequate or finely tuned is another matter, but not one relevant to this discussion. Continue reading

The Pasco Sheriff’s Letter

If it came from the college to which you applied, it might be good news. If it came from some business you never heard of, it would be a scam. But when it comes from the Pasco County sheriff, what the hell is it?

“We are pleased to inform you that you have been selected…”

This is about as heartwarming as your telephone company opening their letter with “To serve you better,” which is invariably followed by something good for them and very bad for you. Continue reading

Leave Simone Biles Alone (Update)

American gymnast Simone Biles is 24 years old. She’s four feet, eight inches tall. She can do things in gymnastics that totally amaze me and people who know more about the sport than I do say she’s the greatest gymnast of all time, at least until the next GOAT appears as history has taught us over and over.

I have no reason to doubt that she’s the best, but she’s not a demigod. She’s a young woman who is great at gymnastics. On the one hand, the prevailing binary paradigm put her on a pedestal too high for any human being. On the other hand, she basked in her glory, which she was both entitled to do and earned with years of extraordinary hard work and suffering, some of it inexcusable, and dedication. Continue reading

Tuesday Talk*: Lawyer or Law Enforcement?

A deputy out of Crazy Joe’s old office got a bright idea.

A Maricopa County Sheriff’s Office deputy is under investigation for allegedly posing as a defense attorney in a failed attempt to trick a woman and arrest her.

Andy Marcantel, a partner with the Attorneys for Freedom Law Firm, said that Deputy Jeff Miller pretended to be a lawyer at his firm on a phone call four months ago.

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Can DoJ Be Saved?

For those of us old enough to remember a world before Trump, the beatification of some former federal prosecutors, Preet Bharara and Sally Yates, by the left was about as goofy as it got. Sure, they were fired by Trump, but did these dopes have a clue who they were, what they did, before Trump? Apparently not, as they neither knew nor cared that there was a world preceding the apocalypse. But more importantly, Preet, Sally, et al., said the words the unduly passionate so desperately wanted to hear. Bad Trump. They swooned with adoration.

When Biden was elected and it was his time to give AG Bill Barr’s chair to someone new, Joe could have picked one of these former prosecutors who now made a living off telling Rachel Madow what her fans wanted to hear, but he did them one better. He chose the most maligned judge in America, Merrick Garland, from whom a Supreme Court seat had been stolen. Surely, he must be the most woke choice possible, since he was the victimiest victim in law. Continue reading

Tokyo Meets Disparate Outcomes

One of my favorite writers is David French, more so for his exceptional prose than his insight much of the time. Some people just write really well, and I, for one, envy their skill. So when French took on the burden of explaining why “structural racism” isn’t wokeness, or to be more direct, the religious right case against systemic racism, it seems that maybe, just maybe, I would finally find some answers to my question, “what the hell are they talking about.”

Enforcing the Constitution’s Equal Protection Clause and passing the Civil Rights Act was (and is) necessary to end overt, legal discrimination, but it was hardly sufficient to ameliorate the effects of slavery and Jim Crow. These effects are so embedded in our system that powerful people often perpetuate those structures even when they lack any racist intent at all.

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Should Defendants Shut Up or Talk Back?

Every once in a while, a defendant has something to say to a judge that has a positive impact. But that’s like betting on lightning striking. The vast majority of the time, when a defendant speaks out in court, whether he blurts something out in the midst of trial or even after he’s been fully prepped at sentence, it’s at best unavailing and at worst a disaster that ends up doing grave damage.

So naturally, a law review article suggests that defendants should be allowed, even encouraged, to share their voices with the court, unfiltered by their lawyers, and “talk back” to the judge. Continue reading

The Mental Health Alternative To Cops, And Its Limits

Cops don’t want to deal with people having a psychotic episode any more than the people  who call because someone is having a mental health crisis want cops to kill them. The problem was one of default. Who else can you get to respond? In New York City, there’s a standing army of NYPD to take the call, but no smaller army of mental health personnel on top of the cops to respond. So they tried an experiment and it turned out pretty well.

The B-HEARD program — it stands for Behavioral Health Emergency Assistance Response Division — launched in a portion of Harlem last month and has sent teams of three unarmed, behavioral health specialists to respond to more than 100 911 calls.
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Surprising Friends of The Second Amendment

A few things are relatively uncontroversial. New Yorkers do not like guns. Progressives do not like guns. New York’s public defenders are, politically, very progressive. New York’s public defenders support the Second Amendment’s right to keep and bear arms.

Wait, what? You read that right.

The incorporated Second Amendment affords the people “the right to keep and bear arms.” U.S. Const. amends. II, XIV; McDonald v. City of Chicago, 561 U.S. 742 (2010); District of Columbia v. Heller, 554 U.S. 570 (2008). Despite the clear text and this Court’s precedent, New York’s licensing regime does the opposite. It deprives everyone of that right, only returning it to those select few who manage to first secure a firearm license from the police. For everyone else, possession of a firearm is effectively a “violent felony,” punishable by 3.5 to 15 years in prison. N.Y. Penal Law §§ 265.03; 70.02(1)(b). New York’s licensing requirements criminalize the exercise of the fundamental Second Amendment right, with rare exception.

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