Let’s say a client screwed up.  That’s one of the reasons they come to a lawyer, since they avoid us like the plague otherwise. They downloaded some porn and, included within it, was pornography involving a minor.  That wasn’t their thing, and they, like you, are disgusted and appalled by it.  Yet, there it is, on their hard drive, with the trail from the file sharing site leading straight to their computer.

Mark Bennett raises the dilemma.

It’s illegal for him to continue possessing the images. So you can’t advise him to do nothing (and keep breaking the law).

The smart thing for him to do would be to destroy the hard drive (if I could, I would recommend swisscheesing it with a drill press).

But tampering with evidence is illegal under both Texas and federal law. Is it a crime to destroy the hard drive? To advise the client to do so?

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Sometimes it’s two words, like “tangible items.” Other times, four, like “established by the state.” But words are, for lack of a better word, a bitch.  When it comes to law, the meaning of a word could mean the difference between freedom or prison, between guilt and innocence.  They matter.

Historic crimes, murder for example, are considered pretty well understood.  They’ve been around forever, firmly established in the common law preceding statutory penal laws, and subject to contentious parsing over and over, until most would presume we know what they are.  Yet, we still see the occasional challenge that “changes everything,” such as when New York’s Court of Appeals held “depraved indifference” murder was a mens rea element rather than an objective component of the offense.

But words are easy. We use them all the time. We know what they mean. Even if we can’t give a specific definition (how do those guys who write dictionaries come up with those definitions?), we know.  This, of course, is how normal people view words. Lawyers, on the other hand, have a tendency to defy normal. It’s not one of our most endearing features.

In the post-Enron environment of white collar crime, where so many get the sense that bad stuff is happening that somehow eluded prosecution, the attempt to craft laws to criminalize conduct has brought along a problem, readily apparent in the recent Yates decision by the Supreme Court.  Continue reading →

The Department of Justice issues two reports, one condemning the police in Ferguson, Missouri, for racism, and the other concluding that its investigation did not support bringing civil rights charges against Police Officer Darren Wilson for killing Michael Brown, or as Paul Cassell victoriously proclaims, he was right all along and Wilson’s been cleared.  Both are all over the news, and need not be repeated here.

What’s astounding about this is how the Department of Justice’s reports are applauded, embraced with love and blind acceptance, because . . . we trust them so completely.

What happened here?  How did the DoJ, the very same DoJ that is the subject of such anger and derision from its abusive prosecutions to its deception and duplicity in the care and feeding of constitutional rights, suddenly become the font of truth and trustworthiness?

This isn’t to say that the reports are wrong, or baseless.  As David Menschel twitted, “It’s almost like US DOJ read @radleybalko in WaPo and @ArchCityDefense‘s white paper and simply adopted the analysis.”  It’s that the DoJ confirmed our belief that the cops in Ferguson are as bad as we thought they were.  Hooray!  We were right all along!  Continue reading →

The Dersh’s conundrum was obvious: he was accused of heinous conduct in a proceeding where he wasn’t a party, thus precluding him from the opportunity to present a defense.  So he took to the streets to defend his honor and reputation.  This isn’t to pick sides in the fight, but to acknowledge that it is a fight, and even the Dersh gets to defend himself.

Not so, cry the women of Harvard Law School, Anna Joseph and Kerry Richards.

Alan Dershowitz—famed defense attorney and former professor at Harvard Law School—has been accused of being one of the individuals who were provided with an underage “sex slave” by Jeffrey Epstein, Dershowitz’s friend and client. Dershowitz has not been charged with a crime and is not a party to the lawsuit in which the accusing affidavit was filed. Though neither Dershowitz’s liberty nor his property are at stake, he has responded with public and aggressive victim-blaming.

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Richard Wesley conducted himself appropriately as a school counselor and child behavioral specialist at the Sixth District Elementary School in Covington, Kentucky.  That’s where he used to work, before he was falsely tarred a child rapist because Covington cop Joanne Rigney, at the behest of social worker Alison Campbell, decided to destroy him.

From the 6th Circuit in Wesley v. Campbell:

Both claims arose from the same incident, in which one of Wesley’s then-students [7-year-old J.S.] accused Wesley of sexually assaulting him and two other students in an office at the school’s administrative center. Rigney waited almost three months after the student made his allegations before seeking a warrant for Wesley’s arrest and then omitted from her application a range of material facts demonstrating the unreliability of the student and his allegations. Taken together, those omissions thoroughly undermined the existence of probable cause.

The case was classic, a child got in trouble, came up with a story to shift focus to Wesley, and the story then grew legs.  A neglectful mother ran with it to a social worker, who ran with it to a cop who shared her deep concern for children.  Continue reading →

The President’s Task Force on 21st Century Policing issues its interim report.  If you’re not the sort of person to get invited to serve on a President’s Task Force, because you’re not official enough to make the cut, chances are you won’t make it past its self-congratulatory opening, where official people thank other official people for being very official.

As with any document prepared by officials, it’s jargon-filled and skimpy on substance.  No doubt academics will parse the interim report for its deep meaning, though few will ask themselves why it has to be parsed. Couldn’t it just say what it means?

Yet, there is some meaning to be found in the weeds.  The report, coming on the heels of Ferguson, offers a heady mandate:

Trust between law enforcement agencies and the people they protect and serve is essential in a democracy. It is key to the stability of our communities, the integrity of our criminal justice system, and the safe and effective delivery of policing services.

…

The mission of the task force was to examine how to foster strong, collaborative relationships between local law enforcement and the communities they protect and to make recommendations to the President on how policing practices can promote effective crime reduction while building public trust.

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The integrity of public functions isn’t exactly a cause easily dismissed.  After all, who out there wants to openly champion the idea that the government need have no integrity, because it’s got the guns and, well, you don’t. What you gonna do about it?

So how pissed off must Mike Horowitz, the Inspector General of the Department of Justice, have been when the Federal Bureau of Investigation told him to go suck eggs?  Pissed off enough to go public.  Airing dirty laundry is not something the DoJ or the FBI wants to do. It conflicts with their desire to give themselves awards for their bravery and service.

When Horowitz went public with the FBI’s intransigence last fall, one might have thought that would be sufficient to get a little cooperation.  After all, Mike wasn’t some nasty outsider to the cause, the kind of IG to go looking for problems under every rock.  Mike has been in the fold forever, and while he’s the sort of guy who will do his job, he won’t see his job as manufacturing problems where none exist. Continue reading →

When it comes to criminal law, nothing is more important than the language of a statute. From the due process perspective, a law must give notice of what it prohibits.  Not just, “well, everybody knows what it means” from zealous advocates of criminality who can’t figure out a way to clearly express their ideas, but want so badly to criminalize something that they are fully prepared to criminalize far more.

It’s easy to fall back on appealing phrases like “the spirit of the law,” which exist in the imagination of those who believe in spirits.  Your spirit says something is a crime. Mine does not. And the prosecutor’s spirit says our spirits don’t count anyway, and the only spirit that matters is his.

This is why words matter. Definitions matter. No matter how much it hurts, these are the only tools available to create a law, or we fall subject to the whims of whoever has the biggest spirit.  And rarely does that turn out to be us.

On the eve of oral argument in King v. Burwell, a clash of intellect and emotion will reach its zenith.  In an homage to canons of interpretation, Michigan lawprof Nicholas Bagley made an impassioned plea in the New York Times for the Supreme Court to ignore the words of the Affordable Care Act. Continue reading →

Starting today, I will be contributing posts on “the business, practice and culture of law in addition to anything else he damn well pleases” at Lee Pacchia’s Mimesis Law.  For those who haven’t paid any attention at all, I’ve been doing videos with Lee for a while now (they can be found on my sidebar) in an effort to reach a very different audience than the one inclined toward SJ.

As regular readers know, I’m fairly lousy with sticking to a brand, as all the internet ninjas say a blogger is supposed to do.  I write about whatever strikes my fancy, and some of you send me nasty emails or leave vicious comments to tell me that I’m not doing what you think I should be doing, because my latest post doesn’t thrill you.

Tough nuggies.  But I digress.

The plan is that I will contribute posts to Mimesis that tend to deal more with inside baseball practice of law sort of stuff that would only be of interest to other lawyers, if anyone.  Not to give too much away, but Lee is putting together some of the most interesting and thoughtful minds in the blawgosphere to join in this endeavor, people who I think offer the most valuable ideas. Continue reading →

The viral video of Los Angeles cops taking down a homeless man of questionable mental stability, until five shots are fired and he became a dead homeless man, is a good illustration of the confusion. The video is confusing. The conduct of the police is confusing. The necessity for violence is confusing, and the reasons behind all of this are confusing.

The only thing not confusing about it is that the man, who is known as Africa on the street, is dead.

In an effort to make sense of the confusion, note that at 21 seconds, you hear the word “gun.”  From the LA Times: Continue reading →

Apparently, a great many readers took offense — no, were outraged — by the City of Cleveland’s response to the amendment complaint filed by the family of Tamir Rice, the 12-year-old executed in a park by rookie cop Timothy Loehmann.  The City’s answer to the complaint was the problem:

The city, in its response, wrote that Tamir’s death on Nov. 22 and all of the injuries his family claims in the suit “were directly and proximately caused by their own acts, not this Defendant.” It also says that the 12-year-old’s shooting death was caused “by the failure … to exercise due care to avoid injury.”

To the unaware, this seem callous and false, a lie by the City to try to shift fault from its own violent officer, a cop who never should have been hired and who lacked the competence and guts to let a child live.

The response does not explain these defenses in more detail, though 20 defenses are listed in all, including another one that says Tamir died because of “the conduct of individuals or entities other than Defendant.”

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At the Chronicle of Higher Ed, Northwestern professor Laura Kipnis takes a cautious stroll down memory lane.

You have to feel a little sorry these days for professors married to their former students. They used to be respectable citizens—leaders in their fields, department chairs, maybe even a dean or two—and now they’re abusers of power avant la lettre. I suspect you can barely throw a stone on most campuses around the country without hitting a few of these neo-miscreants. Who knows what coercions they deployed back in the day to corral those students into submission; at least that’s the fear evinced by today’s new campus dating policies.

While much has been made here of the new campus sexual revolution, the one that absolves females of any responsibility for their choices and presumes males to be rapists, inchoate or extant, there are permutations as well that afflict the professoriat: relations between an academic and student are the product of coercion.  They too are the “neo-miscreants.”

Kipnis is one of them, though at the time, she wasn’t quite so evil. Continue reading →