Author Archives: SHG

Because They All Look Alike, Right?

Reading the Second Circuit’s affirmance of District Court Judge Shira Scheindlin’s suppression ruling in United States v. Watson, my initial thought was that it was a shame that Judge Barrington Parker wasn’t on the panel.  The affirmance was written by District Court Judge Jed Rakoff, sitting by designation, suggesting an alignment of stars that rarely happens.

But Judge Parker has that patrician look to him, plus of course he’s a federal judge. having survived the mean streets of New Haven while a student at Yale. Would he be able to appreciate the fallibility of cross-racial identification?  Well, Judges Scheindlin and Rakoff did.

Tim Cushing at Techdirt provides the tl;dr version of the facts:

A couple of years ago, the NYPD was searching for a robbery suspect with the following description: Continue reading

Because You Need A Lawyer To Request A Lawyer

The routine seems so simple, as does the proper way of dealing with it, provided you don’t want to find out later you slit your own throat by being too smart by half.  Ask a half-interested person what to do when confronted by the police, and chances are pretty good that their answer will be, “say nothing.”  Or, the less sanitized version of the advice, shut the fuck up.

That, of course, is right, but wrong. Refuse to give pedigree and you’ll sit in a cell forever. Failure to respond to a question can sometimes be used against you, and end up being the very proof that nails you to the wall. Miranda warning are only required for custodial interrogations, but what’s custody is a moving target these days. The rule ought to be clear, easy enough for a non-lawyer to follow and apply without needing a lawyer to explain how not to incriminate oneself. No such luck.

But at least there’s the second prong of invocation, which is even better than the simplistic advice so many offer. Ask for a lawyer. Not whether you ought to have a lawyer, or that you think a lawyer might help, but just that you want your lawyer. Even if you don’t have a lawyer, it doesn’t matter. Just utter the words.  Not only does that require the police to cease interrogating you, but it has the secondary benefit of being unwaivable except in the presence of a lawyer.

If you invoke your right to remain silent, assuming you do it properly and at the right time, and in light of inculpatory questions, you can still blow it by waiving that right by speaking.  That’s right, you wise asses who feel compelled to mutter some snarky comment after invoking, you blew it.  But if the right you invoke is counsel, you can’t undo it without a lawyer. Continue reading

Mindful, But For The Right Reason

One of the more vapid trends within the legal profession is mindfulness, a word that conjures up images of, well, nothing much.  Oh, the horrible stress of being a lawyer, and so a cottage industry of happy-talking folks has arisen to take you away from your personal misery.  How wonderful that must be.

People are wasting valuable thinking time on meditation and mindfulness and should stop trying to clear their heads, an Oxford University academic has claimed.

Theodore Zeldin said too many people were avoiding using their brains and instead escaping into a state of blank mental oblivion.

Zeldin makes an assumption that may not be valid, that people were using their brains before “escaping into a state of blank mental oblivion.”

“It’s important not to think just about yourself,” Dr Zeldin told the Hay Festival. “You think that trying to avoid things by doing exercises which free the mind from thought and will empty out minds.

“I think mindfulness and meditation are bad for people, I absolutely think that. People should be thinking.”

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The Cleveland Caveat

The New York Times characterizes the settlement agreement reached between the Department of Justice, Office of Civil Rights, and the Cleveland police as “tough standards on force.”  By most accounts, it’s something Cleveland needed.

The agreement is part of a settlement with the Justice Department over what federal officials have called a pattern of unconstitutional policing and abuse in Cleveland. The department found in a review released late last year that police officers here used stun guns inappropriately, punched and kicked unarmed people, and shot at people who posed no threat. The episodes often went unreported and uninvestigated, investigators found.

And in the rare instance that the cop was prosecuted for his conduct, he walked. But I digress.

As Vanita Gupta, head of OCR said, “today’s agreement really should serve as a model for those seeking to address similar issues in their communities,” which makes no sense at all. It should be a model for all police departments, not just those where cops are out of control. If the rules are right, they’re right for all cops. Continue reading

When The Hammer Hits The Right Nail

Nebraska Senior District Court Judge Richard Kopf is a crafty old man.  He knows how to play an audience, and does so with finesse when he writes of a death* he can “cheerfully” support.

Last Sunday, Michael Ryan died on death row in a Nebraska prison. He was 66. He had been there 30 years. According to the Omaha paper, he was suffering from terminal brain cancer.

For me, Ryan’s death is a pleasant surprise. I know that sounds bad, but it is manifestly the truth.

It’s not an arbitrary bomb tossed into the blawgosphere to goad those of us who are steadfastly against the death penalty.  Judge Kopf backs it up. Continue reading

But For Video: Docile Edition

David Washington’s Hyundai first hit a Jeep, then a street sign.  It came to a stop in an intersection, when Police Officer Shaun Jurgens arrived.  He found Washington sitting in his car, strapped in by his seat belt, staring blankly straight ahead.

The call, that a car hit another car, isn’t of the sort that should strike fear into the hearts of cops. Accidents happen. Cars hit cars. Sure, the driver of a car could be a mass murderer, or a pastor. It’s not the sort of problem raising an immediate fear of violence and potential harm.

So the first thing Jurgens did was tase the driver, and then an extra healthy dose of pepper spray, followed by those carefully taught, deeply professional words, “get out of the car or I’m gonna fucking smoke you.”  Cops often forget they say such rehearsed lines when they later testify about what happened. Judges prefer not to hear such harsh language, as it disrupts the dignity of the courtroom.

But Jurgens wasn’t done with the 34-year-old Washington. Continue reading

Memorial Day 2015

For reasons that won’t be explained, this was the song I sang to my first child, my daughter, right after she was born and the nurse put her in my arms.

I’m not big on civic holidays, but honoring those who gave their lives for their country is the least I can do to show my respect for their sacrifice. It’s not about the worthiness of the cause, but about the human beings lost to war. Continue reading

Brelo: Cause and Effect (Update)

Cleveland Police Officer Michael Brelo was acquitted of voluntary manslaughter of Timothy Russell and Melissa Williams. A total of 137 rounds were fired into their car, including 49 by Brelo, as he stood atop the hood of their car and fired through the windshield. They were unarmed, although reported to have fired shots because their car had earlier backfired.

The bench trial was marked by the disgraceful refusal of the other police officers present to testify, under the guise of Fifth Amendment privilege (to which they’re entitled) but for the purpose of protecting their fellow officer.  The verdict still shocked.  Judge John P. O’Donnell began his decision with an acknowledgement of Cleveland’s disastrously poor relationship between police and the public.

In many American places people are angry with, mistrusting and fearful of the police. Citizens think the men and women sworn to protect and serve have violated that oath or never meant it in the first place. Some of these places are long familiar: New York City and Baltimore. Some were unfamiliar until incidents there laid bare the divide between the people and the police: Ferguson, Missouri and North Charleston, South Carolina. Probably not coincidentally these places are mostly African-American communities. Continue reading

The Shame of Manhood

While I’ve heard rumblings about some of the stuff Jordan Rushie explains, it was never really worth my time to look into it. I’m well past my dating years, and have no plans to go back. The whole notion of “the game” and the “red pill” are, from my distance, kinda funny, the sort of things that clog young men’s minds while the hormones that kept humanity going continued to flow dangerously.

Sure, I was aware of the introduction of gender studies in liberal arts education, which struck me as a worthwhile course of study as soon as someone opens up a chain of gender stores.  But then, philosophy majors weren’t in high demand either.

Needless to say, we’ve moved far from the days of Aristotle and Camus, and philosophizing about important yet practical topics like a natural order, morality, primary cause, virtue, ethics, and the meaning of our existence. It seems to me that academia is currently focused on pushing a third wave feminism ideal.

As a single guy in my 30s, all of this feminist gender studies stuff has absolutely no practical application to me. It won’t help me be a better lawyer, make more money, or live a more fulfilling life. In contrast, I will often refer back to classical philosophy for inspiration or perspective. A manuscript on cisgender heteronormative white male privilege, not so much.

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Meta: Krugman’s Humble Weblog

New York Times columnist Paul Krugman wrote of his humble beginnings as a blogger the other day.  Just like me? Hardly.

In my own case, I began writing online in 1996, when Michael Kinsley signed me up to write a monthly column for Slate. This was still traditional column-writing — length constraints were less rigid, editing less intrusive, and gratification less delayed than in print, but still relatively old-fashioned. But it did get me accustomed to the online format.

Krugman, then an MIT professor, created a page for himself on the MIT servers, where he lists his many Slate and other articles on economics, before moving to Princeton, then to the Times.

A proper blog came much later, when I realized that I wanted a place to put the backstory behind my Times columns; the Times added a Twitter feed (which I didn’t even know existed until Andy Rosenthal casually mentioned that I had 600,000 followers). And so here we are today.

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Fallibility Cannot Be Escaped

If Earl Warren and Albert Camus fought George Washington and Abraham Lincoln, who would win?  That’s the question posed by Bill Otis in his rejoinder to George Will’s conservative case against the death penalty.  It’s rather surprising to learn that Otis is so on top of internet memes.

But first, the lead-in comes from no less an interested party as Paul Cassell at Volokh Conspiracy, who writes:

George Will recently wrote an op-ed in the Post, advancing the “conservative case” against the death penalty.  My friend Bill Otis has written this strong response.

This is noteworthy only for its indication of Cassell’s tacit endorsement of Otis’ obsession with making the trains run on time.  Will begins with the assertion that capital punishment is withering away in America, and offers a “threefold” justification for the conservative case against the death penalty, as reflected in dark red Nebraska’s effort to abolish it. Continue reading