Two cases whose names may well be connected to one of the most important rulings the Supreme Court will make in our lifetime are United States v. Wurie and Riley v. California. On the surface, the issue is whether the police have the authority to conduct a nonconsensual, non-exigent, warrantless search of a cell phone upon arrest.
While the issue could be disposed of easily with a basic search incident to arrest analysis, where a cell phone (read smart phone, for those who want to think a step ahead) was deemed just another container that happened to hold digital stuff rather than physical stuff, the ramifications are devastating.
The real issue of these two cases is set forth in Jeff Fisher’s merits brief in Riley (courtesy of Orin Kerr at WaPo Conspiracy), Continue reading
On the bright side, when Eugene Volokh made the decision to take his big win in the 9th Circuit in Obsidian Finance v, Cox and move the court to tweak the opinion around the edges because a sentence hurt his pro bono client’s feelings, it gave rise to a number of interesting discussions about the duties and obligations of counsel.
Cox had good reason to be unhappy with a sentence in the opinion that was unflattering toward her, to say the least:
Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction. See David Carr, When Truth Survives Free Speech, N.Y. Times, Dec. 11, 2011, at B1.
Still, Eugene beat back a $2.5 million judgment for his client (at least for now) Continue reading
Thomson Reuters, the venerable
marketeer legal publisher, has joined hands with the International Centre for Missing and Exploited Children, and not too small a smattering of federal alphabet law enforcement agencies, to produce a report on the future safety of the digital world. It’s called The Digital Economy: Potential, Perils and Promises, a report of the Digital Economy Task Force.
Curiously, news of the report was broken by David Lat at Above The Law, under the heading “The Dark Side of the Web.” After all, it’s not like ATL isn’t all about serious legal issues confronting the safety of children, right? Lat begins by offering his position:
I am on record as an optimist when it comes to the internet. The free flow of information on the web, including but not limited to websites like Above the Law, helps people make better decisions about their lives and careers (and also entertains, a value that shouldn’t be ignored). Continue reading
While courts have taken little issue with law enforcement lying (or, in the parlance of the judiciacy, “pretext”) to the public, they assume they’re being told the truth. After all, they’re the judges, and judges are, of course, special. It’s not like law enforcement can’t trust them, or worse still, think so poorly of their benefactors that they would treat them the way they treat the public.
But then, there was Stingray. For those who don’t keep up with the law enforcement technology, it’s a device that mimics a cell tower and captures phone data. A few years back, the WSJ stumbled upon it, and it turns out that the cops were having a field day with it, but for one detail. They had neither sought nor obtained judicial approval to use it. Heck, they didn’t even tell the courts it existed. But, oh boy, did it exist.
During an appellate argument in a sexual battery case in Tallahassee, some previously unknown details came out. From Wired via
Mike Masnick Tim Cushing at Techdirt: Continue reading
It was the couple quick glances at a wristwatch that derailed the re-election campaign of George Herbert Walker Bush during a presidential debate with Bill Clinton. But for a watch, we wouldn’t have had Monica Lewinsky to talk about. How could you live with yourself?
I’m a watch nerd. That means I love watches. Wrist watches. Dash timers. Pocket watches. Not clocks, so much, but watches. It’s not that they’re fancy, but that they’re tools reflecting the artistry of the watchmaker’s craft. Telling time is easy. Watches can be a thing of beauty. If you can’t appreciate beauty, ingenuity and craftsmanship, then your life is empty. I’m sad for you.
In a post the other day, a tangential piece dealt with a lawyer whose watch of choice was a Patek Phillipe Calatrava. This gave rise to no small issue, Continue reading
When the Supreme Court considered whether to grant cert in Susan B. Anthony List v. Driehaus, the Cato Institute brief nailed the free speech issue, from the critical question of how one determines “fact” in a political context, as well as the inherent chilling effect of criminalizing speech if one guessed wrong. It was never a question of adoring political lies, but the price to be paid for robust political speech.
Now that cert has been granted, Cato’s Ilya Shapiro has filed its amicus curiae brief on the merits, and it may be the best amicus brief ever filed. To wet your whistle, here’s the opening:
“I am not a crook.” Continue reading
One of my complaints about journalists is that no matter how well they write, they aren’t inherently endowed with expertise on the subject of their reporting. The same goes for lawyers, and particularly judges, who sometimes confuse the majesty of their robes for subject matter expertise.
It’s not that we can’t become reasonably well-versed in a very narrow subject with some effort, but that we should never confuse ourselves with real experts. The Supreme Court heard argument in Hall v. Florida, the follow-up case to Atkins v. Virginia which held it unconstitutional to execute a mentally retarded person.
Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Continue reading
While most altlaw businesses try to dodge and weave around the fact that they’re committing the crime of Unauthorized Practice of Law, one not only admits the obvious, but is proud of it. Via Carolyn Elefant at My Shingle:
Tandem is structured differently from traditional law firms as well. D.C. Ethics Rule 5.4(b) allows for non-lawyer partners, provided that they are also firm employees (as opposed to passive investors) and provide services that “assist the organization in providing legal services.” Capitalizing on this rule, one of Tandem’s co-founders, Michael McDevitt is non-lawyer and former CEO of a successful weight-loss company while the other co-founder, Randy Price brings six years experience as a big law associate. The remaining firm members are comprised of a mix of big firm expatriates and management types, including two with deep roots in e-discovery.
As much as my view toward the ownership of law firms by non-lawyers is negative, one of the key ingredients is that it is also unlawful. Tandem Legal Group is a law firm. It’s half-owned by a non-lawyer, who brings his experience in running a weight-loss company to the firm, and it comports with the District of Columbia’s ethical requirements. Continue reading
The side of a NYPD police cruiser bears the letters CPR, for Courtesy, Professionalism, Respect. It’s aspirational at best, and a cynical marketing ploy at worst. In any event, it is not something to point out when an interaction with police doesn’t go as well as one would hope.
But Mayor Bill de Blasio has decided that his new (and Giuliani’s old) police commissioner should commence a new initiative to make New York’s Finest more user-friendly. Via Newsday:
The NYPD’s encounters with the public will soon begin with a polite introduction and end “on a positive note” under a new “Seven Steps to Positive Community Interactions” curriculum announced Thursday by Mayor Bill de Blasio and Commissioner William J. Bratton. Continue reading
Willie King took the full ride after recording the Indianapolis police arresting a guy. From the Indiana Lawyer (via a twit by Radley Balko):
Indianapolis resident Willie King who was arrested in February, 2011 after he used his cellphone to videotape police officers arresting another man. King was charged with resisting arrest, disorderly conduct and public intoxication.
He was acquitted after a bench trial, but didn’t stop there.
Following a bench trial that found him not guilty, King filed a federal civil rights case against the city of Indianapolis and the police officers involved in the incident. The lawsuit, Willie E. King v. The City of Indianapolis, Jonathan M. Lawlis, Robert K. McCauley, Brad Alford, Michael B. Wright and David Miller, 1:11-cv-01727, was filed in U.S. District Court for the Southern District of Indiana, Indianapolis Division. Continue reading
I twit. When Twitter first came on the scene, I was certain I wouldn’t. I was wrong. Before going any further, I call what I do on Twitter a “twit.” I’ve called it that since the beginning, because the place is called twitter. This makes some people furious, because, they tell me, it’s a “tweet.” Is it called “Tweeter”? You can call it whatever you like. I will call it what I like. Get over it.
Over the years since I first wrongly decided Twitter was worthless, I’ve written about it numerous times, as it plays a role in digital life whether I like it or not. It is a poor medium for many purposes: arguments on Twitter are terrible and a waste of time, as it’s impossible to engage in any depth of thought within the constraint of 140 characters.
Serial twitterers are annoying. Any jerk can @me and expect me to twit with them, as if I’m obliged to engage with anyone with a computer keyboard. Continue reading
The pressures to select a jury, to move a case to trial, have become somewhat overwhelming in New York, following the exposes of long, inexplicable delays. The Office of Court Administration has “standards and practices,” which are used to smack judges whose numbers aren’t where the newspapers think they should be. For some judges, the smack is well deserved.
For others, particularly those who have stood up to power by ruling against the local political structure and pissing off a lot of people, standards and practices is a sword hanging over their head, an excuse to sacrifice them on the altar of regularity.
Queens Supreme Court Judge Joel Blumenfeld stood firm when he ruled against the Queens District Attorney’s practice of eliciting confessions from defendants after arrest but before they got to see their lawyer. This put a target on his back. Continue reading
While I’m a big fan of a few of the folks writing over at Above the Law, like Elie Mystal, Mark Herrmann, Keith Lee, Tamara Tabo, and even Staci Zaretsky, when she isn’t obsessed with lady parts, the relatively new third-string assistant editor in charge, Joe Patrice, isn’t a favorite of mine.
It’s not that Patrice, of whom I knew nothing, did anything to me. It started when he was given charge of Non-Sequitors, my favorite daily feature at ATL under Elie as it highlighted funny or interesting posts in the blawgosphere that I never would have seen otherwise. But Elie used to search out those posts, find the good stuff, and then offer it with a heaping helping of Elie snark.
Patrice handled it differently. You see, blawgers get emails daily from people who want us to see and, in their dreams, promote their posts. Continue reading
A conversation that happens fairly regularly with defendants early in the representation describes the options available. While the relative merit of one over another depends on the case and the risk tolerance of the individual, the options generally remain the same: Plead guilty, cooperate or go to trial. As part of the discussion, I tell my clients that there is no option where he can say, “sorry, it was all a big mistake, so how about we just call it even and everybody go home?”
Maybe I’m wrong. From Gideon at A Public Defender:
Today, the United States Supreme Court will meet to decide whether to hear the case of Esteban Martinez. Martinez is in an unusual position, however. He isn’t convicted of anything. In fact, he was acquitted of an assault. But the State of Illinois wants to get a second crack at him. They want to try him again. Because the first time around, they did absolutely nothing. Continue reading
There has been a good deal of moaning over the demise of the 4th Amendment after the Supreme Court’s opinion in Fernandez v. California, where Walter Fernandez’s refusal to allow police to enter his apartment was forgotten after the cops took him away and later returned to obtain the consent of his girlfriend.
Was the rule of Georgia v. Randolph dead? Did “no” no longer mean no if the police shuffled the naysayer from the premises, leaving behind a more consenting occupant? Not even if there was ample opportunity to get a warrant, the tedium of the effort notwithstanding?
Fernandez isn’t the death of the 4th Amendment, largely because it’s hard to kill something that’s already moribund. Continue reading
As a follow-up to my earlier post about Eugene Volokh’s post-win motion to sanitize the 9th Circuit’s opinion about his pro bono client, Crystal Cox, having “apparently” engaged in some dubious behavior, a brief post to add the latest amicus curiae submission, this one on behalf of a fellow named Martin Cain.
In attempting to excise the Court’s reference to her underlying extortionate conduct from the opinion (Petition for Rehearing), Cox apparently provoked Mr. Randazza to provide the Court with more definitive evidence as to her conduct, directed at himself and at others. In her opposition, Cox asserts that the MBRR findings presented by Mr. Randazza – as they were at the time – were merely “proposed” and thus should be disregarded. (Cox Opp. to Mot. for Leave to File Amicus Brief) Amicus hereby seeks to present this Court with the MBRR’s final Findings of Fact, Conclusions of Law, and Final Order (“Order”).
Amicus here is the actual victim referred to in the MBRR’s proposed finding of facts and conclusions of law (Randazza amicus Brief, Exhibit. B). While it is true that those were merely “proposed” findings of facts and conclusions of law, Amicus is in possession of the final Order. Continue reading
For those who care to debate the heady question of whether law is a business or profession, of the merit of non-lawyer, who have neither an ethical duty nor fiduciary relationship, ownership, meet Emanuel Roy and Peter Mayas. They’re lawyers, but of the sort that follows the business path rather than the profession path for which I often advocate.
From the Sun-Sentinel, via Walter Olson at Overlawyered:
Patrick Coulton’s lawyers ripped him off to the tune of $275,000 and left him to rot in prison.
The bizarre legal soap opera began in March 2008 when Coulton was arrested on federal drug and money-laundering charges for smuggling cocaine and marijuana.
His family hired Roy, who was a lawyer in New York and Florida at the time, and Roy brought his friend, Mayas, a Plantation attorney, on board too. Continue reading
A recent column in the Harvard Crimson by student Sandra Y.L. Korn raised a firestorm by challenging the foundation of academic freedom:
When an academic community observes research promoting or justifying oppression, it should ensure that this research does not continue.
The concept isn’t novel, the elevation of political correctness over the search for unpleasant truth. I had this weird inkling that it was related to something here long ago, but I couldn’t put my finger on it. I shrugged it off. At my age, forgetting things is like breathing.
Then an email arrived. Brief and unsigned, the only indication of its sender being its gmail address of “lattice.theory.” Continue reading
Having followed Kerri Kaley’s struggle to enable herself and her husband to fight charges of dubious merit since the circuit, an old question arose: Would the law that grew like a fungus in the bad, old drug days of forfeiture law that gave rise to such discreditable decisions as Monsanto, be perpetuated now that they were being applied to people who society didn’t inherently despise?
The Supreme Court answered the question in Kaley v. United States, a split decision by Justice Elena Kagan: Hell, yes!
In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the seizure’s legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury’s prior determination of probable cause to believe they committed the crimes charged. We hold that they have no right to relitigate that finding. Continue reading
It’s not as if New York Law School Professor Robert Blecker hadn’t staked his claim as the intellectual leader of the Kill ‘Em Now crowd already. He’d been out there, pounding the pavement to drum up business in advance. So when the review copy of The Death of Punishment, published by Palgrave Macmillan, arrived, I was all ready to rip it to shreds.
It opened as I would have expected of anyone who sought to take ownership of the joys of capital punishment, immediately forcing me to wonder what trauma happened to Blecker in his formative years to stunt his intellectual growth and leave him an emotional cripple. Maybe it was the simplistic notions instilled in him as a child, eye for an eye, revenge, retribution?
But a lousy thing happened on the way to hating Blecker’s book. Aside from the inexplicably warped view of capital punishment, there was a grudging respect for him. He was no mental midget, not by a long shot. This was a very smart man. Continue reading