Author Archives: SHG

The 800 Lb. Doggie In The Harris County Jury Room

Potential jurors are subject to a great many influences, ranging from their personal experiences to the crap they watch on TV.  Try as we might to ferret out these influences, it’s not always possible. While some will proudly announce their prejudice, most believe they are fair, reasonable people. Of course, that’s what most people believe of themselves, no matter how prejudiced they are, because their prejudice is fair and reasonable or they wouldn’t hold the beliefs.

But Harris County clerk, Chris Daniel, took it a step beyond the pale.

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Next Generation, Zealousness or Happiness; Pick Your Poison

When I first read the order, I couldn’t quite wrap my head around it.  It was one of those WTF moments.

Counsel will please keep in mind the need to provide arguments and courtroom experience to the next generation of practitioners. It is the way one generation will teach the next to try cases and to maintain our district’s reputation for excellence in trial practice. This order requests by NOON ON APRIL 14, 2016, that each law firm representing a party herein submit a five page plan explaining how it intends, in this case, to provide opportunities for junior attorneys (who have graduated from law school within the past six years) to argue motions, take depositions, and examine witnesses at trial. The five page plans should please name specific associates and name the specific opportunities the law firms have in mind for them.

No preface of an application by a party seeking relief.  No explanation at all. There it was, a federal judge, in this case William Alsup from the Northern District of California, issuing a case management order in an actual case that had nothing to do with the case, but with the “courtroom experience of the next generation of practitioners.” WTF?

It’s no secret that trials are dying. If you’ve never tried a case, it’s where litigators become trial lawyers, where baby lawyers become real lawyers. Where great lawyers earn their wings. Not every lawyer is cut out for trying cases, but this is where the gladiator proves his worth. For me, it’s cross examination. I love cross. Other lawyers love other parts of trial most, voir dire, summation, whatever, but trials are where the blood rushes to your head and where cheap talk of lawyering gets real. Very real. Very quickly. With no time to rest.  Continue reading

Turley’s War on the Skies (and everywhere else)

What sort of whiny terrorist sympathizer would complain about waiting three hours on a TSA security line, just because they’ve yet to stop any terrorist ever?  What about the children?

You have likely been reading about the scandalous situation at our airports where TSA security points have created chokepoints due to a lack of planning and staffing in the latest failure of this agency. Thousands of passengers are missing their flights due to massive lines and the airports are now suggesting that people come THREE HOURS in advance.

The reason is obvious incompetence in failing to plan for rising numbers of passengers and to properly staff security checkpoints. Yet, no one is being held accountable. The public is just again left paying billions to the government, which cannot meet the most basic obligations to the public. We no longer expect competence from our government.

No longer? As if it’s easy for the government to protect us in this ever changing, ever threatening world?  So what if the TSA has yet to catch a single terrorist. What about the next one, the one who will blow up your children?  Don’t you care at all? Continue reading

Rule 41, When Any Judge Will Do

The concept of geographical jurisdiction of Magistrate Judges will be a faint memory if Chief Justice John Roberts gets his way. He’s forwarded proposed changes to Congress to amend Rule 41 of the Federal Rules of Criminal Procedure that will fundamentally alter the requirement that a warrant be issued by a judge within the jurisdiction of the place or thing to be searched.

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The UnConviction: Why DPAs Don’t Fit The Rhetoric

At Cato At Liberty, Walter Olson raises a vexing problem that often flies under everyone’s radar. There’s a “legal system” for corporations that’s largely distinct from the one regular folks get to see, or even hear about.  And it usually ends with something called a “DPA,” a deferred prosecution agreement, which is a settlement reached between the government and a corporation.

Deferred prosecution agreements and their close relatives non-prosecution agreements (DPAs/NPAs) have become a major tool of white-collar prosecution in recent years. Typically, a business defendant in exchange for escape from the costs and perils of trial agrees to some combination of cash payment, non-monetary steps such as a shakeup of its board or manager training, and submission to future oversight by DoJ or other monitors. Not unlike plea bargains in more conventional criminal prosecution, these deals dispense with the high cost of a trial; they also dispense with the need for the government to prove its allegations in the first place.

DPAs may also pledge a defendant to future behavior that a court would never have ordered, or conversely fail to include remedies that a court would probably have ordered. And they may be drawn up with the aim of shielding from harm — or, in some other cases, undermining — the interests of third parties, such as customers, employees, or business associates of the targeted defendant, or foreign governments.

The comparison to plea agreements may be unfortunate, as they are really nothing like plea agreements.  Nobody gets indicted. Nobody gets arrested. Nobody spends a night or ten in jail.  And there’s no perp walk.  It starts with a target letter, and ends with nice cup of Earl Grey tea, during which a very well paid lawyer signs the DPA, hands over a check (not really, as it’s all done electronically) and they chuckle over golf course stories while the youngest member of the prosecution team trots over to a courtroom to have a judge sign off on the DPA to make it all official. Continue reading

The Pong of Law

There is a near-religious belief that the vast number of people who fall into the category of legally underserved are not only worthy of legal attention, but offer a huge opportunity for those who want to chase after their pennies.  It’s called A2J, for Access to Justice, because Legally Cheap would make for a lousy brand.

These are not the indigent, of which there are many. and for which a very different sent of concerns apply. If there’s no money for food or clothing, there’s no money for legal doodads and gadgets. The A2J industry wants nothing to do with them. They don’t even have pennies to chase.

Rather, these are the people who have jobs, money and assets, but prefer to allocate their scarce resources elsewhere. Like the newest iPhone, or hip fashions. Lawyers? Not so much. It’s not that they can’t afford a lawyer, but that they just don’t want to squander their hard-earned money on competent counsel. The priests of A2J cry sad tears over their plight, because they lack “access” to the legal services they desperately need but cannot find at the price they want to pay. Which is pretty much nothing. Continue reading

Feelings, Deconstructed

As long-time (or casual) readers of SJ may already be aware, I’m not a big fan of feelings. It’s not that they don’t have their place, but they tend to be used inappropriately, as in lieu of thinking. History prof at UNC, Molly Worthen, sees the problem as well.

IN American politics, few forces are more powerful than a voter’s vague intuition. “I support Donald Trump because I feel like he is a doer,” a senior at the University of South Carolina told Cosmopolitan. “Personally, I feel like Bernie Sanders is too idealistic,” a Yale studentexplained to a reporter in Florida. At a Ted Cruz rally in Wisconsin in April, a Cruz fan declared, “I feel like I can trust that he will keep his promises.”

These people don’t think, believe or reckon. They “feel like.” Listen for this phrase and you’ll hear it everywhere, inside and outside politics. This reflex to hedge every statement as a feeling or a hunch is most common among millennials. But I hear it almost as often among Generation Xers and my own colleagues in academia. As in so many things, the young are early carriers of a broad cultural contagion.

A contagion, indeed, although it might have been worthwhile to leave “believe” out of the mix, since that’s the nature of religion. Priests believe.  Continue reading

Critically Acclaimed Investigative Journalist Steven I. Weiss Clearly Proves Jeff Jarvis

Whom are you going to believe?  Some fat, bald, funny looking lawyer or an award-winning investigative journalist? News anchor/managing editor @tjctv?  Steven I. Weiss, clearly.

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When Empiricism Fails To Produce The Outcome “Everybody Knows”

Stanford University was under the gun.  Its alumni were outraged threatening to withhold donations. What could cause the graduates of an elite school on the wrong coast to feel such anger?  Results that didn’t confirm their bias.

Moreover, Stanford’s chosen methodology and presentation of data produces misleading results. For example, Stanford has made much of the finding that just 1.9% of its students experienced sexual assault, but the 1.9% figure averaged together the experiences of men, women, and gender-diverse students. Similarly, the 1.9% figure — as well as other statistics — is derived from a considerably narrower definition of sexual assault than the definition used by the AAU survey and most of our peer institutions. Under Stanford’s definition, some behavior that would constitute a felony would be classified as “sexual misconduct,” rather than as assault.

These and other problems seriously undermine the value of the survey in addressing sexual assault at Stanford.

Everyone knows there’s an epidemic of rape and sexual assault on campus,  Rape is more prevalent on campus than in prison. Everyone says so. Everyone. Except the damn empirical survey. This cannot stand, say the alums. There must be rape, so there can be rules and procedures to prevent rape. If there’s no rape, than whatever will they do?

It’s not that Stanford’s administration and faculty didn’t understand the problem, and the depth of feelings. And they did the best they could to calm things down. Continue reading

Ray Kelly: Disinvited (But Still Full Of Shit)

It’s absurd that the boneheads at Brown made former New York Police Commissioner Ray Kelly a sympathetic victim. Yet, they did, or more specifically, they drowned out Kelly to prevent him from giving a speech he was invited to give.  As FIRE president Greg Lukianoff calls it, disinvitation.

At the College Fix, they note that Kelly finally got his chance to speak at the William F. Buckley Program’s second annual “Disinvitation Dinner.”

Kelly was honored by Yale’s William F. Buckley, Jr. Program at its second annual “Disinvitation Dinner” at the Plaza Hotel on Thursday night. Last year’s inaugural dinnerhonored columnist George Will, who was disinvited from speaking at Scripps College.

The response to Kelly’s 2013 lecture at [Brown], which was canceled after repeated disruptions by protesters, ended up altering Brown’s entire policy for guest speakers and allowing student activists to create a do-not-invite list going forward.

And like that, Ray Kelly became a hero of free speech.   Continue reading

Mocking The Victim, The Indigent Defendant

In a New York Times op-ed, Fordham prawf John Pfaff shows yet again that he’s good with numbers.

Yet despite this constitutional guarantee, state and county spending on lawyers for the poor amounts to only $2.3 billion — barely 1 percent of the more than $200 billion governments spend annually on criminal justice.

Worse, since 1995, real spending on indigent defense has fallen, by 2 percent, even as the number of felony cases has risen by approximately 40 percent.

When you step back from local indigent defense spending, this is what it looks like. Sure, some want to tell you about the faces of the innocent individuals sitting in cells for months awaiting a lawyer, but those stories only sway the deeply empathetic.* The system has no feelings. The system has balance sheets and ledgers, which ultimately spew out the amount left over that can be used to buy constituent happiness, campaign donations and re-election. Continue reading

The Constitution, Huffington Post Version

It’s not that Justin Curmi doesn’t deserve some sympathy for his struggles. It couldn’t have been easy for him.

Justin Curmi is a graduate from Baruch College in Manhattan, New York. He received his Bachelor’s degree in Philosophy and Political Science. His college career was a battle due to personal battles with dyslexia. These battles have forced him to learn how to teach himself difficult subject matters without help. Through anguish and painful moments, he has overcome major hurdles that dyslexical presented to him. Now, he is looking towards unorthodox thoughts and methods to analyze political matters.

Aside from an excessive use of the word “battle,” there is no apparent reason why he was “forced” to “learn how to teach himself difficult subject matters without help.” One of these battles appears to be writing ability. Another, reasoning ability. The bio would be understandable but for one thing: this is Curmi’s bio at the Huffington Post, where Curmi has been given the opportunity to use this soapbox to explain his understanding of the Constitution.

Thus far, Curmi has written three posts on the subject.  His first deals with the Preamble: Continue reading