The Killing of Akai Gurley: A Mistake, Perhaps, But No Accident (Update)

There was no excuse offered. Akai Gurley did nothing, absolutely nothing, to cause probationary Police Officer Peter Liang to shoot him in the chest and kill him. Whether Gurley did anything wrong in his life before that, even the cops didn’t have the gall to try to taint him with priors so we wouldn’t feel too badly about his killing.  It wouldn’t matter anyway, but that rarely stops people from being stupid enough to connect unrelated dots.

No, Akai Gurley was shot dead for no reason whatsoever. His two-year-old daughter son will have no father.  The job he was about to start with the city will be filled by someone else. He can’t do it. He’s dead. For no reason.

Police Commissioner Bill Bratton called it an accident.

The shooting, at 11:15 p.m. on Thursday . . .  But 12 hours later, just after noon on Friday, the New York police commissioner, William J. Bratton, announced that the shooting was accidental and that the victim, Akai Gurley, had done nothing to provoke a confrontation with the officers.

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Cosby In Context (Update)

One of America’s most beloved entertainers, Bill Cosby, is now not only a rapist, but a serial rapist.  As his lawyer, Marty Singer, correctly points out, most of the allegations now being raised aren’t new. Rather, they are debunked allegations renewed in the context of new social norms, where challenging such claims is viewed as a form of sexual abuse in itself. Victims can’t be blamed.

But the latest, victim number 7, provides an opportunity to appreciate how conduct that occurred (assuming it occurred) in one era is viewed through the prism of another era, and significantly misinterpreted.

In an interview on WPTV in West Palm Beach, Fla., the woman, Therese Serignese, 57, a registered nurse, accused Mr. Cosby of drugging and having sex with her after one of his shows at the Las Vegas Hilton in 1976 when she was 19.

The narrative of drugging a woman for sex is a recent one.  Today, there are roofies, drugs surreptitiously slipped into a drink to incapacitate a woman so she can be raped.  Concerns abound about men who will target a drunk or drugged woman as well, taking advantage of their incapacitated state.  In the context of today’s narratives, these are the images that come to mind when a woman talks of “being drugged.” Continue reading

The Dark Tactic of Stash House Stings

It works, right?  Isn’t that good enough?

“The conspiracy was real; the guns were real; the defendants’ intent to use them to violently rob a cocaine stash house was real; and the defendants’ criminal histories were real,” the federal prosecutors argued in their brief. The supposed stock of cocaine had to be set high, they said, to make the proposal credible.

How, anyone of good conscience must ask, can we feel badly for such defendants?  Well, the problem arises from the fact that these aren’t defendants caught engaging in crimes.  Rather, these are people who live and hang in poor neighborhoods, where the government sends its friends to troll for the miserable, the pathetic, the losers who might be enticed by visions of big money and an end to their misery. Continue reading

Your Emotional Rescue Meets Brown 25

Brown University was the site of a Janus Forum debate earlier this week on “How Should Colleges Handle Sexual Assault?” The debaters were Wendy McElroy, ifeminists.com editor and “rape culture” skeptic, facing off against Feministing.com founder Jessica Valenti, an evangelist against “rape culture.”  The notion that such an issue could be subject to debate was more than Brown could stand. In response to student protests,

[Brown president Christina] Paxson declared in a campus-wide email that her counterprogramming, titled “The Research on Rape Culture,” will provide students with “research and facts” about “the role that community norms and values play in sexual assault.”

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Kickstart The End Of The Penalty

One of the questions often posed by people who are disturbed at what happens in criminal law is “what can I do”?  Here’s an answer: contribute to the kickstarter campaign to complete the document, The Penalty.

The Penalty is a 90-minute film that seeks to lift the lid on the human cost of the death penalty. Centered around three executions, the film pulls back the curtain on the people who are touched by capital punishment every day, but who are often far from death row. We follow the tentacles of the death penalty as they wrap their way around lawyers, innocent men, victims’ families and the political landscape.

The producer, Laura Shacham, who last year made a web series profiling death row exonerees, called One For Ten, is about half way through filming The Penalty.  They need money to finish the project.

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The Theft of Transparency

Not that there is anything new when it comes to the politicalization of views as to Ferguson, Missouri, and the killing of Michael Brown, but Paul Cassell at Volokh Conspiracy has added a new twist of extraordinary bias and cynicism to the mix.

It appears to be widely (although not universally) assumed that the grand jury will not return any charges against Ferguson, Mo., police officer Darren Wilson for shooting and killing Brown. Some persons sympathetic to the filing of charges have argued that this procedure is not “transparent.”  Part of the argument is that grand jury proceedings are typically kept secret — and it is expected that this proceeding will be no different.

But this claim overlooks the possibility that grand jury information can be released to the public.  And, indeed, the prosecutor supervising the Michael Brown grand jury has promised (in the event that no charges are filed) to try and make the grand jury information public as soon as possible. [Paragraph break added for readability.]

Well, yes.  St. Louis County Prosecuting Attorney Bob McCulloch has said he will try.  And, for reasons that serve McCulloch’s self-interest, there is no reason to doubt his word. Continue reading

Judge Buzz Arnold: No Harm, No Foul, No Chance

The argument took place in 2008, but it’s just coming to light now because terrorists.  Tim Cushing at Techdirt offers some highlights of the government’s view of how and why the government justifies its surveillance, contained in the just-released “oral arguments presented by Yahoo’s counsel (Mark Zwillinger) and the US Solicitor General (Gregory Garre).”

Included are such gems as this:

Zwillinger opens up the arguments by questioning the government’s methods of determining who should be placed under surveillance.

Why I show this to you is because I think it’s a perfectly fair question for you to ask the Solicitor General of the United States how a name gets on this list. This isn’t reviewed by a — the FISA Court. These names aren’t reviewed by the Attorney General of the United States. The difference between surveilling an account and exposing someone’s most private communications and not is how a name gets on this list; and all we know about it from page 47 of their brief, is that an intelligence analyst puts it on the list.

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How And Why Lawyers Are Killing Our Profession (Update)

I stumbled across a post by Dan Jaffe at LawLytics, a lawyer marketing company, that every lawyer needs to read.  Ironic for a legal marketer, Jaffe explains, in a very lengthy, but deeply substantive and nuanced fashion, how we are diminishing ourselves for a buck, and why that buck is going to others rather than us. Much as I occasionally touch on pieces of this problem, Jaffe lays it all out, chapter and verse.

The post is titled “How much is that lawyer in the window? The secret commoditization of the legal profession,” and he means it.  And he explains it.  Just to whet your whistle,  consider:

The internet has created a culture of instant gratification in consumers. The best lawyers know that if they aren’t available when a potential client wants to talk, a lesser lawyer will be there to take the call, and that many potential clients will not wait. To many potential clients the internet makes it impossible to tell the difference between excellence and mediocrity. And the more legal fees that flow to the mediocre lawyers, the more money they have to reinvest in marketing, and the dumbing down of the bar continues in a twisted mutant evolution that serves neither lawyers nor clients.

Given the length of Jaffe’s post, and your need to take the time to read it (rather than this), I’m cutting this short.  And for any of you bar association “listservs are cool tech” types, post a link on your listserv and tell the ten other goofballs to read it as well. Just do it.

Update:  Dan Jaffe responds by noting, after a generic thanks, that what I wrote about him “stuck in his craw.”

However, in reading his post, something he said stuck in my craw.  He referred to me as a “legal marketer.” While labels, especially objectively true ones, don’t generally concern me because I know who I am, I noticed that the context of Mr. Greenfield’s reference to me as a “legal marketer” did.

I completely understand, Dan, and would feel at least the same if someone called me a legal marketer.  And yet, what choice did I have?

Good News? The Cabbie Got Paid. Bad News? Everything Else

I’m going to go out on a limb here and suggest that Candice Padavick had no plan, after having gotten out of the cab after she was told the cabbie didn’t take plastic, gone up to her apartment on Collins Avenue in Miami Beach, of returning to pay her $16.90 fare.  Once she undressed and put on a robe, she was calling it a night.  It’s wrong to beat the cabbie out of a fare.

But then, a security guard in her building, Juan Camona, a gentleman by any standard, gave the cabbie a $20 to cover the charge.  It’s unfortunate that it came after the cabbie called the police about the fare beater.

According to court documents recently obtained by NBC, Padavick took a cab home one night several months ago and was unable to pay him with a credit card, so she had to go to her apartment to get him his money.

“It was $16.90. I wont forget. I tried to pay with a credit card and when I tried to pay he said no no I only take cash,” Padavic told reporters. Continue reading

The Bright Line of Prosecutorial Discretion

The topic is immigration.  The question is highly political.  And yet, what comes of it may well prove critical to criminal law at its most mundane.  From the New York Times Room for Debate:

Frustrated by congressional inaction on immigration, President Obama is said to be considering executive orders to protect up to 5 million unauthorized immigrants from deportation, including parents of children who are citizens or legal residents and even more undocumented immigrants who came to the United States as children.

But does the president have the power to decide unilaterally whether to exempt millions of immigrants from deportation?

Before we go any farther, keep your opinions about immigrants, pro or con, to yourself.  Just because the Times says this is about immigration doesn’t make it so.  Rather, the fact that the issue arises in the context of immigration, because it’s not like the president, who, according to Attorney General Holder, strongly believes that crack cocaine should be sentenced on a one to one basis with powdered cocaine, would be capable of using the same argument to accomplish that goal.  Continue reading

Because Even Bad Law Makes For Good Warrants

The excuse was that the Baton Rouge Police Department takes complaints about its officers very seriously.  That, according to BRPD spokeswoman Mary Ann Godawa, is why the “department uses unenforceable laws to gain information.”

It began with an email to the mayor about a cop asleep on the job. Maybe.

The initial complaint was somewhat innocuous — a photo pulled from Facebook of an officer apparently pretending to be asleep in his patrol car while on duty.

Whatever this means, the next step was abundantly clear.

BRPD, according to department spokesman Cpl. Don Coppola, first responded to the sender with an email suggesting that if the potential whistle-blower was 1) a regular citizen, he or she could be charged with defamation or 2) if a BRPD cop, he could be in trouble for violating the chain of command.

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The Marshall Project’s First Victim: Defense Lawyers

There was no announcement in the New York Times when SJ went live, but I’m no Bill Keller, former executive editor of The New York Times.  The Marshall Project, on the other hand, had yet to do anything when it proclaimed itself the savior of criminal justice in America. That was worthy of a New York Times announcement.

It went live with a two-part, more than 9,000 word, examination of how the one-year deadline under 28 U.S.C. §2254-5, Clinton’s compromise of the Great Writ in the Antiterrorism and Effective Death Penalty Act of 1996, created a morass of rules that served to wreak havoc with post-conviction challenges.  This is nothing new to those of us who are either familiar with criminal law or care about the issue.  The law ends with the provision:

The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.

Will anyone read those 9,000 plus words who isn’t already well aware of the problem?  Who knows. But it doesn’t hurt to put this on the front burner, even if its old news.  And if it takes Neil Barsky’s promotional skills to do so, so what? Continue reading