Author Archives: SHG

Sunday Morning Funnies

Barry Deutsch is an indefatigable defender of fragile womanhood, a white knight. an ally to the bitter end.  I admire tenacity, as well as the willingness to take the risk of going where his view may not be received with a warm embrace.

He did so here in defense of the statistics claiming that women in college are raped at 27 times the rate of Somalia in mid-revolution.  Barry is hardly a fool, even if he’s blinded by the feelz. That’s not to suggest any malevolence to his single-minded adoration of the feminist mystique, as Hanlon’s Razor applies. I accept the premise that he is utterly sincere is his support of the cause, even if his politics makes him incapable of reasoned detachment.

So it came as no surprise that he was the creator of this very funny, if mind-numbingly stupid, comic at Everyday Feminism.* Continue reading

Tamir Rice: All Relevant Evidence

More than a year has passed since Cleveland Police Officer Timothy Loehmann executed Tamir Rice.  Had Tamir shot Loehmann, he would have been indicted within the hour. The story is that a grand jury presentment commenced in October and is ongoing, because of empty words like “justice.”

But the other Timothy, Cuyahoga County Prosecutor Timothy J. McGinty, is riding the coattails of the Big Lie sold America following the killings of Michael Brown and Eric Garner, that the charging step is performed with extreme caution, intricate evidence and all relevant evidence.

After McGinty obtained “expert” opinions validating the tragedy that couldn’t be helped, lawyers representing the Rice family obtained their own.

At the legal team’s request, police procedures consultant Roger Clark and former deputy police chief of the Irvine Police Department Jeffry J. Noble, both California-based nationally renowned experts in police use-of-force issues, pored over investigative material and determined the shooting was not justified.

Clark and Noble, in a combined 31 pages of documents, reasoned that officers Timothy Loehmann and Frank Garmback placed themselves in harm’s way by driving within feet of Tamir and shooting him Nov. 22, 2014 outside the Cudell Recreation Center on Cleveland’s West Side.

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From Cell Block To Voting Block

If you can’t do the time, don’t do the crime. This was the catch phrase of a TV character, Baretta, which was embraced by the public because it was short and simplistic, thus encompassing the full depth of the American grasp of the legal system. But even if you could do the time, you still couldn’t vote after your time was done, at least in some states.

In places like Mississippi, one of 12 states that permanently bar at least some felons from voting, the reason typically involves the notion that people have displayed very bad judgment by committing a felony, by definition a serious crime. No argument there. But having done so, the thinking goes, they have also proven themselves unfit to make one of life’s most important decisions: choosing the nation’s leaders. As Roger Clegg, president of the conservative advocacy group Center for Equal Opportunity, neatly puts it, “If you aren’t willing to follow the law, you can’t claim the right to make the law for everyone else.”

Not nearly as pithy as the Baretta slogan, but then, that’s why there’s no TV show Clegg. However, it’s similarly simplistic. Remember the good ol’ “no taxation without representation”?  We still tax ex-cons. And in a republican form of government, voters don’t “make the law for everyone else.” Yeah, Clegg was just spouting nonsense, but it’s the sort of nonsense that Americans love because it validates their desires and requires no heavy thinking. Yay, ‘Murica!

From a more cynical, thus more practical, perspective, the restoration of voting rights to ex-cons could create a block of voters (assuming they actually voted) that could wreak havoc with carefully gerrymandered districts. Politicians would suddenly have to contend with their interests to remain in office, and the easily spewed “tough on crime” rhetoric might no longer assure re-election. Continue reading

When The Color Of Law Is Gray

In a New York Times op-ed, Brandon Buskey, a staff lawyer with the ACLU, stirs the pot against the target of a suit in which he’s lead attorney. This little detail is artfully acknowledged in the text, so artfully that it doesn’t strike the reader that this is a problem. A very serious problem.

Judge [Marcus D.] Gordon has robbed countless individuals of their freedom, locking them away from their loved ones and livelihoods for months on end. (I am the lead lawyer in a class-action suit filed by the American Civil Liberties Union against Scott County and Judge Gordon.) In a recent interview, the judge, who sits on the Mississippi State Circuit Court, was unapologetic about his regime of indefinite detention: “The criminal system is a system of criminals. Sure, their rights are violated.” But, he added, “That’s the hardship of the criminal system.”

The paragraph is chock full of really bad stuff about Judge Gordon, so that the parenthetical about the author seem almost subliminal, falling below the threshold of conscious recognition. But there it is, as big a horse in the race as can be, and describing the allegations against the defendant with words that are tantamount to a confession.

Not to question Buskey’s claims, but the place to make his case is in court, not the newspaper. The Times editors lack remedial powers, though you might suspect they’re unaware of that fact. Continue reading

The Prize Goes To Waleed Abulkhair

My old friend, Dan Arshack, took on a cause pro bono that few in the United States either know or care about.  He’s had a lonely time of it, despite the nature of the fight.  It involves a lawyer imprisoned for doing his job.  Except that it happened in Saudi Arabia, and the lawyer’s name is Waleed Abulkhair.

Yes, you never heard the name before.  You probably didn’t read this Huffington Post article about him.  We’re on outrage overload, and there are just way too many things at home to be concerned about to spend much time or energy on bad stuff happening on the other side of the world.  But Danny has, on his own dime, and the least I can do to support his efforts is use my soapbox to spread the word.

Waleed Abulkhair remains in prison, even as he won the Ludovic Trarieux Human Rights Award, first given to Nelson Mandela. So Danny hopped a plane to Geneva to accept the award on his client’s behalf.  This is what he said.

If Waleed has become an outlaw he just as certainly has remained a patriot. He continues to express a deep love for his country and its promise, despite being separated from his wife and daughter and imprisoned by a tyrannical regime that wields its limitless power as a sword against the best and brightest of its citizens. Continue reading

Randall Kennedy: A Grown-Up At Harvard Law

The Friday after Thanksgiving is about as dead a news day as there is.  So naturally, the New York Times chose it to publish one of the best op-eds ever addressing the volatile campus race revolts. Harvard Law professor Randall Kennedy will restore your faith that there remain some grown-ups in the Academy.

A week ago, someone put slivers of black tape over the faces of most of the African-American professors. I am one of those whose photograph was marked.

Last Thursday, on my way to teach contracts, I received an email from a student who alerted me to the defacement. I saw the taped photos, including my own, right before class. Since then I have been asked repeatedly how I feel about having been targeted by what some deem to be a racial hate crime. Questioners often seem to assume that I should feel deeply alarmed and hurt. I don’t.

He raises the unraisable, the unthinkable, the thoughtful. Continue reading

The “Safe Space” In The Jury Room

Without more, it’s impossible to know what motivated the juror to write the note.  Maybe she was the sort of person who was just your typical, New York, neurotic nutjob who somehow eluded detection in voir dire.  Or was acceptable to both sides despite being a nutjob.  Or maybe she was a fragile teacup, as are being trained in special education on university campuses nationwide.

In any event, she sent out a note to Southern District of New York Judge Valerie Caproni, presiding over the corruption trial of Shelly Silver, former Speaker of the New York State Assembly.*


I am wondering if there is anyway I can be excused from this case, because I have a different opinion/view so far in this case and it is making me feel very, very uncomfortable…I’m feeling pressured, stressed out … told that I’m not using my common sense, my heart is pounding and my head feels weird. I am so stressed out right now that I can’t even write normally. I don’t feel like I can be myself right now! I need to leave!

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Happy Thanksgiving

It may not seem this way all the time, but I really do appreciate the fact that anyone takes the time out of their busy day to read what I write. I am deeply thankful. And I am especially thankful for David M’s invaluable help in making SJ happen by making my typos go away and making me appear less of a dolt.

Hope dinner at your house is a lot like mine.  

And I am very thankful to be on my way in the early morning (instead of writing SJ, as is my norm) to pick up my son at the airport. I miss him very much.

Mens Rea And The Koch Conspiracy

Everybody loves bipartisan crim law initiatives, and one put forth by Republican Congressman Jim Sensenbrenner seemed destined for broad approval.  The bill sought to impose a mens rea requirement on criminal conduct when Congress was too lazy to include it in its initial enactment.

Default state of mind proof requirement in Federal criminal cases

If no state of mind is required by law for a Federal criminal offense—

(1) the state of mind the Government must prove is knowing; and

(2) if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful.

The inclusion of a specific mens rea requirement is common in criminal laws. For example, first degree murder usually requires the “intent to kill,” whereas lesser degree murders or manslaughters may only require “recklessness.” Continue reading

The Demands, The Resistance

When black students, armed with rifles, took over Willard Straight Hall in 1969 in reaction to a burning cross outside Wari House, they made their demands known.  There was a stump outside the Straight, and students thereafter stood atop it to announce their purposes. The stump is gone, and black Cornell students now make their demands in secret.

These are the demands issued by Cornell University Black Students United in the secret meeting with President Garrett. They include mandatory for-credit courses for all undergrads, grads, and professors about “privilege” and “white hegemony;” curtailing academic freedom for all professors on social justice issues; hiring Gannett doctors, psychiatrists, and other counselors based on race; renaming the Cornell Plantations; shaking up the “white” Greek system; redirecting funds from other strapped humanities departments to create tenure lines and stipends for majors/PhD programs in minority studies; make Black Students United the official spokespeople for all People of Color on campus with direct access to the president. President Garrett is to reply by Monday. The Cornell community has a right to know and debate, before decisions are made.

The problem with these demands is that they affect every student’s life and education. The demands seek to recreate higher education around the feelings of one identity group, and come at the expense of others. Continue reading

Fault Lines Makes The ABA Beauty Pageant, And Yet…

Every parent knows the sense of pride and joy that comes of a child accomplishing something worthy of praise and recognition, and that’s how I feel about Fault Lines, barely a six-month-old infant, being named to the ABA Journal Blawg 100.  Thank you, ABA Journal guys, for embracing the efforts of the Fault Lines writers and putting this baby on your list.

I haven’t always been kind to the beauty pageant.  It’s not that a little recognition for being in the pie eating contest of blawging isn’t appreciated. Blawgers certainly suffer the indignation of pseudonymous insults for not meeting the tastes, whether by content or tone, of the potential 100 million readers on the internets, and so they could stand a bit of appreciation once in a while.

That said, pitting blawg against blawg has always been unseemly. To their credit, the ABA Journal has finally done away with this nonsensical competition, that served more to reveal the neediness for recognition as to who begged for votes than the worthiness of their efforts. Thankfully, that’s done. It was an embarrassment.

The writers at Fault Lines work pretty damn hard to produce posts that enlighten and illuminate criminal law. For their efforts, they get to enjoy vast wealth and fame the opportunity to write some more, so someone out there can nitpick their work. But that’s the nature of blawging, so it comes with the territory.  Much as I may not have cared much about this for my own sake, I’m thrilled (and I mean that, sincerely) that these exceptional writers received the nod. They deserve it. They earned the tummy rub. Continue reading

Better To Be Lucky Than An Imposter

Mark Bennett wrote about it. Keith Lee did too. Even Mirriam Seddiq had her say. The Imposter Syndrome.

The impostor syndrome, sometimes called impostor phenomenon or fraud syndrome, is a psychological phenomenon in which people are unable to internalize their accomplishments. Despite external evidence of their competence, those with the syndrome remain convinced that they are frauds and do not deserve the success they have achieved. Proof of success is dismissed as luck, timing, or as a result of deceiving others into thinking they are more intelligent and competent than they believe themselves to be.

Ah, how people love to come up with explanations for why they are better than what they feel they are. This is what comes of having too much time on their hands and indulging their inner Sunshine Superman.  As Bennett explained it:

So much of what we criminal-defense lawyers achieve is objectively the result of luck—getting the right case with the right facts at the right time, drawing the right jury panel, finding the right piece of evidence—that much of what is described as “impostor syndrome” is accurate self-assessment. Even beyond that, though, successful men in criminal defense are, I believe, more likely to think of ourselves as lucky undiscovered frauds than as brilliant lawyers receiving our due.

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