Author Archives: SHG

Move On

From what I would assume to be a transcript posted by Jamison Koehler:

HEARING EXAMINER:  I will tell you right now, I do not, unless you have an expert here to testify as it relates to the field sobriety tests, unless you can provide that testimony through an expert –

DEFENSE COUNSEL:  — I have an expert right here –

HEARING EXAMINER:  — I cannot allow that line of questioning.

DEFENSE COUNSEL:  Let me try –

HEARING EXAMINER:  Because you are trying to get the officer to say that the tests are not peer-reviewed.  What does that mean? What does that mean to the officer?

DEFENSE COUNSEL:  I don’t care what it means to the officer.  What matters is what it means to you.

HEARING EXAMINER:  Right.  And so the officer says it wasn’t peer-reviewed, how do you refute that if you don’t have an expert?

DEFENSE COUNSEL:  I have an expert.  Right here.  The officer is an expert.  He has been certified multiple times in the administration of the test.  Otherwise he wouldn’t be qualified to testify. Continue reading

Things Only Bad Cops Do

Omar Rendon was a sergeant in the Marines, which is detailed so you realize that he was one of the good guys. You know, the brave heroes everybody talks about, who deserve our thanks.  And indeed, they do, and he does. And he is a good guy, which didn’t really help him much.

From the Daily News:

Omar Rendon, 25, a former Marine sergeant, said he was sitting in his Acura sedan in an Ulmer St. parking lot in College Point, Queens while on his lunch break last week, eating a Subway sandwich and watching “Wentworth” on his cell phone, when an unmarked blue van pulled alongside him.

Two men in plainclothes said, “Police! Get out of the car,” and reached in to unlock the door, he said. When Rendon — a handyman at the commercial complex, which features a movie theater and a Toys “R” Us — asked who they were, he said he was violently yanked out of the car. When he asked to see their I.D.s, one cop punched him in the face, he told The News.

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A Nice Young Man At Yale

Could the Yale police have made a worse choice of students to pull a gun on?  Not likely.  The student turned out to be the son of New York Times columnist Charles Blow.

Saturday evening, I got a call that no parent wants to get. It was my son calling from college — he’s a third-year student at Yale. He had been accosted by a campus police officer, at gunpoint!

Blow’s commentary often addresses the state of race relations in America.  I suppose it comes with the territory, though that would be a racist conclusion based on Blow’s skin color. He could just as easily be a fencing writer, though it doesn’t pay as well.  In any event, that’s what he does.  And he does it well, whether or not you see the world as he does.

According to the column, his son was doing what normal people who have no reason to think any cop would be interested in them do. Continue reading

Sunday Morning, When Facts Don’t Matter

I admit it: I’m a sucker for a well-played French horn.  And I’ve been a fan of CBS’ Sunday Morning since Charles Kuralt held the reins. That his fellow Charles, the Osgood one, wears a bow tie is a bit dated, but still, the French horn intro is magnificent.  It’s very hard to blow a good French horn. [Ed. Note: As I’ve since been informed, it’s a trumpet, not a French horn, which means I’ve been watching for years for the wrong reason. My bad.]

But a segment yesterday morning was shockingly bad. Not because it took an ideological position with which I disagree, but because it was factually vapid.  The website write-up began with the discredited “According to the U.S. Justice Department, one in five college women will experience some kind of sexual assault while in school.”  Would it be too much to expect that a news organization like CBS be aware that these numbers, which don’t come from the DoJ, have been so thoroughly and utterly debunked that not even the most radical feminist organization will use them anymore?

Apparently not.

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Team Prosecutor

By way of explanation for his view that the prosecutors who appear in federal court in general, and in his courtroom in particular, are pristine and above reproach, Judge Richard Kopf offered his experiences.

* After 28 years as a federal magistrate judge and district judge, I have witnessed countless examples of Nebraska federal prosecutors playing it entirely straight up and doing so when they could have stood silent and no one would have been the wiser.

* While I do not want to slander most Nebraska state prosecutors who are entirely ethical, I have too often seen in habeas cases or heard (in the case of a wiretap) state prosecutors behaving badly.

* To the degree that Judge Kozinski, a judge who I respect greatly, believes there is an “epidemic” of Brady violations in the federal system, that has not been my experience here in fly over country.  As a result, I did not want my earlier post to be an implicit endorsement of the judge’s criticism of federal prosecutors for violating Brady.

To this, Judge Kopf reminded of his earlier explanation about why he believed cops most of the time, which was addressed here. Continue reading

Screw The Children; What About The Cops?

“You have to draw the line between your right as a citizen to privacy and a community’s right to live in a crime-free environment.”

“You can’t have them both.”

— Carrie Mills, International Brotherhood of Police Officers

When the flashbang grenade landed in Baby Bou Bou’s playpen, the Georgia SWAT team was ready with its excuses for why they had no choice:

Sheriff Terrell says the suspects are dangerous drug dealers who are known to be armed. Hence, the SWAT team, the no-knock raid and the flash grenade.

The “drug dealers are inherently dangerous and armed” mantra has been spewed for a long time now, reaching the point where it’s judicially taken for granted.  Drugs = danger, so therefore any measures that protect police in the heroic performance of their duty are acceptable.  No, more than acceptable, necessary. You can’t have police harmed, when all they’re doing is protecting society’s right to a crime-free environment. Continue reading

25 Years Worth of Creative License

If there was a list of tough gang-style rapper names to pick from, what would the chances be that the winning name would be “Tiny Doo”?  I mean, it just isn’t particularly manly, and worse yet, provides ample opportunity for potty jokes. Yet, that was the name under which Brandon Duncan rapped, and will be the name under which he could serve 25 years for being a gang killer.

Except he never killed anyone, unless you take this song too literally.  Via Gawker:

According to the San Diego County District Attorney’s office, Tiny Doo—real name Brandon Duncan—is a documented member of the gang that allegedly perpetrated the attempted murders. No one is alleging that Duncan fired a gun himself, bought the weapons, or was at the scene of the crime—that he had anything to do with the shooting at all, really. Continue reading

Not In My Court, They Don’t (Update x2)

The video of oral argument before the 9th Circuit in Baca v. Adams is making the rounds, and it is certainly worth watching for anyone interested in lying prosecutors and what happens to them.  Sidney Powell provides the story at the New York Observer.

In this case, the prosecution infected the case with false testimony–including by a prosecutor himself–over benefits given to a “cooperator” or a jailhouse “snitch.”

The entire program of “cooperation” is rife with problems. Prosecutors often put extraordinary pressure on the worst criminals, threatening not only them but their families. After completely terrifying the person who knows he will go to prison no matter what (because he really is guilty), the prosecutor then offers life-saving benefits, often secretly, in exchange for testimony against many less culpable “targets” of the government’s investigation.

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The Core Mission of a Traffic Stop

At Volokh Conspiracy, Orin Kerr discusses oral argument in the Rodriguez case, which apparently departed from its stated issue (how long after the completion of a traffic stop may a person be detained for the purpose of conducting a dog sniff).  Both Orin and I agreed that the only doctrinal answer was that upon completion of the traffic stop, there was no constitutional basis to continue to detain a person, and no further detention, even de minimis, could be permitted.

The notable aspect of the argument is that the Justices were more interested in the broad issue of how long traffic stops can last than the narrow question raised in the cert petition. I read the cert petition as raising a pretty specific question: When a traffic stop is over, can the government extend the stop for a dog sniff, and if so, for how long? The narrow cert grant posed a bit of a problem because the Supreme Court has said little about how long traffic stops can extend generally. Without a theory of how long stops can last generally, it may be hard to answer what to do with specific question of delays at the end of a stop. As a result, several of the Justices wanted a general test for how long traffic stops should extend.

Rodriguez’s counsel got caught short, not anticipating that argument would head in this direction.  It’s actually an excellent question and one that must be answered if there is to be given any meaning to when the traffic stop is done and the extension begins.  After all, the entirety of the stop can be easily gamed if the cop simply holds the driver’s license and registration until the dog arrives, whether that takes ten minutes or two hours.  Continue reading


When Washington State took the leap by establishing the first non-lawyer legal post, the Limited License Legal Technician, it was a huge step forward in providing a lower-tier resource for basic legal advice and services.  Indeed, it looked an awful lot like my proposed Legal Practitioner, with many of the same virtues of proper training and qualification.

As Bob Ambrogi notes in an article for the dead-tree ABA Journal (that would be the same one that asked for, then decided not to print, the article on mentoring that Dan Hull and I wrote), the first graduates of the LLLT course of study are about to hit the street.

Michelle Cummings looks forward to this spring, when she expects to take on her first law client. By then, the Auburn, Washington, resident will have completed her studies and taken the state licensing examination. Provided she passes, she will begin practicing right away. Continue reading

Just Another “Term of Art”

There is no one in Boston who believes that Dzhokhar Tsarnaev stands a chance of acquittal for his role in the Boston Marathon bombing, but that hasn’t stopped Judy Clarke, head of his defense team, from doing her job.  But as Judge George O’Toole struggles to find anyone who would qualify as an impartial juror, the ordinary expectations of who would be qualified to sit are coming under attack.

It’s not like this wasn’t anticipated, but Judge O’Toole decided to plow ahead and the parties have to live with the consequences of his foolishness decision.

If Dzhokhar Tsarnaev’s defense team wanted to prove that seating an impartial jury in Massachusetts was an impossible task, it could rest its case now. Over four days, the federal judge George O’Toole has interviewed more than three dozen potential jurors who were not eliminated after filling out a written questionnaire, and only a few have emerged as both apparently impartial and open to the possibility of voting for the death penalty, which they must be in order to be chosen to serve.

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