Author Archives: SHG

“Amy” Decided, and Arbitrary Wins (Update)

The name of the case is Paroline v. United States, but the case is all about Amy. Amy, Amy, Amy.  As I read the syllabus to the opinion, itself ponderous, my thoughts went to whether a young woman would have made herself the key figure in a war for victims’ rights had she known where this would go.

Her champions promoted this as an emotional plea, using Amy as the sacrificial lamb.  Did anyone step back, detach themselves from their emotional bondage and give Amy a cold, hard, reasoned view?

This concern was bolstered when I saw that Paul Cassell, who argued on Amy’s behalf before the Supreme Court, posted her reaction at WaPo Conspiracy:

[M]y co-counsel (James Marsh) and I have just had a chance to communicate with our client, Amy.  Here is her reaction:

I am surprised and confused by the Court’s decision today.  I really don’t understand where this leaves me and other victims who now have to live with trying to get restitution probably for the rest of our lives. The Supreme Court said we should keep going back to the district courts over and over again but that’s what I have been doing for almost six years now. It’s crazy that people keep committing this crime year after year and now victims like me have to keep reliving it year after year. I’m not sure how this decision helps anyone to really know if, when, and how restitution will ever be paid to kids and other victims of this endless crime. I see that the Court said I should get full restitution ‘someday,’ I just wonder when that day will be and how long I and Vicky and other victims will have to wait for justice.”

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A Simple Rule, Slip-Slided Away

Until yesterday, we had a relatively clear rule for police to follow: an anonymous tip must be corroborated before it rises to the level necessary to seize a person.  Then the Supreme Court decided Navarette v. California.  Interestingly, the 5-4 majority opinion was written by Clarence Thomas, with the dissent penned by Nino Scalia. Now I realize that people think I’m loopy for not hating Nino as much as I should, but it’s cases like this that should remind us of why he’s so much fun on the Court.

The majority held that an anon tip, of the sort that once needed corroboration, doesn’t really.

By reporting that she had been run off the road by a specific vehicle—a silver Ford F-150 pickup, license plate 8D94925—the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving. That basis of knowledge lends significant support to the tip’s reliability.

There is also reason to think that the 911 caller in this case was telling the truth. Police confirmed the truck’s location near mile marker 69 (roughly 19 highway miles south of the location reported in the 911 call) at 4:00 p.m.(roughly 18 minutes after the 911 call). That timeline of events suggests that the caller reported the incident soon after she was run off the road. That sort of contemporaneous report has long been treated as especially reliable.

Another indicator of veracity is the caller’s use of the 911 emergency system. A 911 call has some features that allow for identifying and tracing callers, and thus provide some safeguards against making false reports with immunity.

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Soft Money Loves An Easy Target

A recurring question is why criminal defense lawyers are underrepresented in government positions, whether judicial, legislative or executive. The easy answer is that we’re easy targets, having spent our careers as gladiators, defenders of the Constitution and, as the NACDL slogan goes, Liberty’s Last Champions.

Actually, we don’t sound half bad when you put it that way. But then, nobody puts it that way.  This is more the way we’re described:

Not only does it pander to ignorance and prejudice, but it’s awfully effective in smearing a candidate for office.  After all, even if you’re not entirely inclined to hate criminal defense lawyers for their role in the criminal justice system, Continue reading

Ladies and Gentlemen of the Jury, Why Would They Do This?

Cops conducted an illegal search of a house. So far, nothing new here. Cops found nothing. Still, nothing new. Cops decide to plant meth in the house. Interesting, but nearly impossible to prove. Cops get caught on their own dashcam talking about it. Bingo!

From Courthouse News:

A police car dash cam captured Santa Clara deputies plotting to plant drugs in a woman’s home after their first illegal search turned up nothing, the woman claims in court.

Allison Ross, who was arrested after the second search of her home, sued the Santa Clara County Sheriff’s Department, its crime lab, Sheriff Laurie Smith, and 12 of her officers, in Federal Court.

Someone always asks, can the cops be so stupid that they would forget there is video and audio running, and talk about it openly?  Well, apparently so, Continue reading

PSA: Pitching Innocence

Aside from the thousands of spam emails, scam emails and garbage story pitches that arrive at a blawger’s inbox, there comes an occasional “pitch” from a family for some attention to their wrongly convicted, innocent family member.  They want help. If not legal, then publicity.  They hope to grab attention for their cause.

These concern me, not only because of my natural inclination to be concerned about the wrongfully convicted, but because it’s hard to grab interest in the digital world where we’re constantly deluged with horror stories. We become inured to them, and grow somewhat cold to the “grave injustice” done any individual.  We shouldn’t, but we do.  It’s information overload.

So when a plea for attention arrives, I try to look, to see whether there is something I can and should do.  That’s easier said than done. Continue reading

Where To Find Brain Damaged Babies

Come on, you know where this is going.  Via Newsday:

About half of all 16- to 18-year-olds coming into New York City’s jails say they had a traumatic brain injury before being incarcerated, most caused by assaults, according to a new study that’s the latest in a growing body of research documenting head trauma among young offenders.

Experts say the findings, published this week in The Journal of Adolescent Health, could lead to better training for correction officers on how to deal with the possible symptoms of such trauma, which include problems with impulse control and decision-making.

To those of us whose job it is to defend these youths, this comes as little surprise.  We talk to them, listen to them, watch them and shake our heads as they walk away.  We see the lack of impulse control.  We hear how an astoundingly poor choice is made at a critical juncture.  And there they are, in a meeting with a criminal defense lawyer. Continue reading

Anatomy of Conventional Wisdom

The New York Times Opinionator column offered a hard slap in the face to every helicopter mom: Parental involvement does not necessarily enhance a child’s educational future.  Based on a three-decade longitudinal study, University of Texas sociology prof Keith Robinson and Duke sociology prof Angela Harris reported their findings:

Most people, asked whether parental involvement benefits children academically, would say, “of course it does.” But evidence from our research suggests otherwise. In fact, most forms of parental involvement, like observing a child’s class, contacting a school about a child’s behavior, helping to decide a child’s high school courses, or helping a child with homework, do not improve student achievement. In some cases, they actually hinder it.

This, of course, cannot possibly be.  After all, everyone knows that the more involved parents are in their children’s education, the better off children will be. Schools say so. The government says so, and has passed laws, rules and regs based on it, and, well, everybody knows. Everybody. Continue reading

@Avvo, Not Just Alive

Amongst lawyers, there isn’t much talk of Avvo anymore. Way back when, Avvo was not merely an upstart challenging the hegemony of Martindale-Hubbell’s lawyer ratings, which were utterly meaningless to anyone outside of the profession (what the heck does “AV Preeminent” mean to a normal person?), but an opportunity for lawyers to lay claim to a numerical rating they could promote to consumers that would be understandable and, assuming the consumer naïve enough, persuasive.

Yeah, it was nonsensical, but that’s not a bug in the internet age.  The problem for Avvo, of course, is that there is no money to be made in handing out free ratings.  So in the dark of night, Avvo morphed from a lawyer rating service to a lawyer marketing.  And much to my surprise and chagrin, Avvo has made a go of it.

Avvo has attracted $37.5 million in fresh capital, a huge capital infusion that the Seattle company will use to grow its marketplace for matching attorneys and clients. Total funding in Avvo — founded seven years ago by former Expedia general counsel Mark Britton — now stands at $60.5 million. Continue reading

Is Three A Start, A Finish, or Just Three?

A continuing issue with the police is that they take care of their own, meaning that the rules they apply to the rest of us, often with far more force than can possibly be justified, don’t apply to them.  Yet, the Gothamist offers a story that defies this:

Authorities say that at 2:33 a.m. on Thursday, 30-year-old Jeffrey Balzotti, an NYPD sergeant, was arrested while allegedly driving drunk within the confines of the 10th precinct. He was charged with a DWI and driving recklessly.

On Friday morning, at around 4:30 a.m., the NYPD says Jose Vanderpool, a 30-year-old police officer, was pulled over in Queens and charged with a DWI. The Post reports he was involved in a collision on 32nd Avenue in Jackson Heights, and refused a breathalyzer.

And less than an hour later at 5:05 a.m., authorities say NYPD sergeant Donald Stewart, 34, was arrested near Fulton and Boyland Streets in Bedford-Stuyvesant, Brooklyn. He was also charged with a DWI.

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Incentives Revisited: Which Lying Liars Do You Favor?

In response to the question of why, Nebraska Senior District Court Judge Richard Kopf provided a candid and detailed answer.  His answer consists of nine points, delivered with his usual aplomb and sense of humor, and with remarkable honesty.

This is noted because it’s easy to offer pat answers, the ones we fall back on regularly to win the point and avoid reproach, but which aren’t true.  Judge Kopf has answered with unvarnished truth, which is why he gets himself into a jam on the interwebz so often.

By my reading, Judge Kopf has largely validated Harold’s revelations, that it’s just a matter of going with the odds, and the odds favor the police.  A commenter notes that the explanations bear the scent of rationalizations, to which Judge Kopf asks, what, then, would be his motive to rationalize? I’ll take a stab. Continue reading

The No-Fly Secrets Revealed

For a case that could have, should have, disappeared with a swift oops and click of the delete button, it has reached a conclusion with the unfortunately unsatisfying result of no one being saved and a government so utterly impotent, incompetent, and unworthy as to warrant a brief chuckle.  If only it wasn’t our government.

The pathetic tale of how Stanford Ph.D. student Rahinah Ibrahim wound up on the no-fly list, not for any distant, evil conspiracy, or hyper-technical connection to anyone whose underpants might potentially burst into flames, but because someone getting a government paycheck ticked the wrong box, was bad enough. So someone screwed up. You’re a big country, United States. Own up to the error, fix it, apologize and move on.  But no, that wasn’t the way it would happen. And no, we may be large in size, but puny in spirit.

The trial was a fiasco, with the government screwing the opposition in deceitful, absurd ways.  Judge William Haskell Alsup, of the Northern District of California, was making all the right noises to suggest that he was about to explode, to teach the disingenuous lying scumbags who claim to represent us a damn good lesson.  But when the last huff and puff was over, it turned out to be no more than noise, the empty threats that never seem to happen when the targets of vitriol suck the government’s teet. Continue reading

If You Can’t Trust Prosecutors…

There won’t be much “value added” in this post, as its purpose is to direct readers to Doug Berman’s post at Sentencing Law & Policy on the fiasco of Cesar Huerta Cantu.  In that case, a typo, conceded by all, in the Guidelines calculations went unnoticed by all, including Cantu’s defense lawyer.

While this is not merely inexcusable, but frankly incomprehensible, it happened. When Cantu discovered the error, he sought to correct it via a §2255 petition, which the government opposed as untimely.   The depth of disingenuousness of the government in this case is so low as to shake any confidence in prosecutorial discretion.

The more I reflect on the typo-correction sentence commutation of federal prisoner Cesar Huerta Cantu (basics here), and especially after re-reading this 2255 dismissal order that followed Cantu’s own effort to have a court fix its own significant sentencing error, the more disgusted I feel about the modern federal sentencing system and especially about the U.S. Department of Justice and those federal prosecutors most responsible for Cesar Cantu’s treatment by our Kafkaesque system.

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Honoring The Defendant’s Rights, Duct Tape Edition

Protip: If you get the opportunity to nail down the duct tape contract for the Alachua County, Florida, jail, seize it. It’s going to be huge!

On the one hand, Circuit Judge Robert Groeb’s steadfast belief in the right of a criminal defendant to be present for all critical stages of his or her case is admirable.  After all, it’s their life, and they should certainly be there to watch it go down the drain.  But his methods leave something to be desired.

On the 16th day of April, Judge Groeb issued an order of some concern.  It starts out innocuously enough:

In order to ensure that a defendant’s right to be present during the critical stages of his or her case, as required by Florida Rules of Criminal Procedure 3.130 and 3.180, is protected, the undersigned is implementing the following policy and procedure which shall apply to: (1) all courtroom proceedings arising out of Division ill ofthe Criminal Division ofthe Alachua County Circuit Court; and, (2) all first appearances by video from the Alachua County Jail presided over by the undersigned.

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SWAT For Jesus

Charlie Eipper is a member of the SWAT team in Wichita Falls, Texas, but his team is more special than most.  He suffers from the usual rationalizations of the “Warrior Cop“:

Eipper has considered himself a professional warrior in the service of his country for the past 23 years. He served three years as a helicopter pilot in the Army, then 16 years on the Wichita Falls Police Department SWAT team as a sniper and team leader of the gang unit.

But he’s written a self-published book to explain his perspective:

When he killed a man in the line of duty on Jan. 10, 1999, he was confident that Jesus Christ condoned — even supported — his use of deadly force.

He spelled out his convictions — and the Bible’s support for them — in his book “Jesus Christ on Killing,” self-published March 5.

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Judicial Incentives: Why Judges Won’t Condemn Cops (Update)

At WaPo Conspiracy, Chicago lawprof Will Baude picked up on five lying Chicago cops (which five?  this five. Not to be confused with any other five, or four, or six).  He calls the story remarkable, not because cops lie, but because they got caught lying.

One by one, five police officers took the witness stand at the Skokie courthouse late last month for what would typically be a routine hearing on whether evidence in a drug case was properly obtained.

But in a “Perry Mason” moment rarely seen inside an actual courtroom, the inquiry took a surprising turn when the suspect’s lawyer played a police video that contradicted the sworn testimony of the five officers — three from Chicago and two from Glenview, a furious judge found.

Okay, okay, settle down. Lest you feel all validated, bear in mind that the lie was proven by video. Yet again, we’re stuck in “but for video” mode. Continue reading

SCOTUSBlog’s Proper Place

Within the realm of blawgs, one stands out above all others.  While there is blog in its blood, SCOTUSBlog has long since left behind the days when Tom Goldstein ran it from his kitchen table in a bathrobe. If there is a question on anything Supreme Court, it’s the first place everyone turns, from the Times to me.

If there is a “legitimate” award handed out to a blog, SCOTUSBlog wins it. Like a Peabody. Heck, they won’t even let me see a Peabody unless I buy a movie ticket.  But there’s SCOTUSBlog, proudly accepting another win.  And did I mention it became a business?

But the real test of legitimacy is whether those outside the realm accept you as the real thing, as an entity of sufficient value that you are treated with the level of respect with which others are treated.  SCOTUSBlog took that test, and got spanked. Continue reading

Seven Days In The Erie Can

It’s not that the crime with which William Payne is charged will make him particularly sympathetic, even with the usual caveat that the guy is innocent because he has yet to be proven guilty.  Yes, we all adore the innocent, but the $25,000 bail was good enough to keep him coming back for more.

That is, until the assistant district attorney claimed he tried to run her down.  From the Buffalo News:

The Erie County assistant district attorney prosecuting Payne had claimed that he drove within a couple feet of her following the first day of his rape trial.

[Judge Kenneth] Case revoked Payne’s bail and declared a mistrial last Tuesday after prospective jurors waiting to be screened for possible selection in Payne’s rape trial overheard discussions at the Erie County Courthouse that the assistant district attorney was involved in some sort of traffic incident on Monday evening.

The assistant prosecutor said she had gotten a clear look at the driver’s face and identified him as Payne. Continue reading

Turkewitz Sued By “Liar” Doctor, Michael Katz

In a complaint eerily reminiscent of Rakofsky v. The Internet, Eric Turkewitz is being sued by former orthopedist turned defense expert witness Michael Katz because Queens Supreme Court Justice Duane Hart found Katz to be a liar.  And how, one might wonder, can we be certain, absolutely certain, that Justice Hart found Dr. Katz lying?  The complaint says so:

The surreptitious (and misleading) videotape should have resulted in an immediate mistrial, but Justice Hart inexplicably concluded that Dr. Katz lied concerning the length of the examination despite the fact that he clearly testified he could not remember how long the examination took. Justice Hart proceeded to berate Dr. Katz both on and off the record during numerous subsequent proceedings and inexplicably demanded that Dr. Katz contribute money towards a settlement with plaintiff. Justice Hart called Dr. Katz, among other things, a “no good liar” and a “thief” and implied that he was a “spy” with “little beady eyes.”

The problem is laid bare that Katz, having gotten slammed by the judge as a liar, Continue reading

Death Plus Hate

When word broke of the Kansas murders by 73-year-old White Supremacist Frazier Glenn Cross, the cries for hate crime prosecution immediately rang out.  After all, if anyone deserved to be prosecuted for a hate crime, it was this killer.

As Judge Kopf notes, the murders of three people were the height of irony.

[A] former “Grand Dragon” was going on a shooting spree at the Jewish Community Center and nearby retirement village in Kansas City. The shooter killed three people. Two were Methodists and one was Catholic.

The oldest victim was a physician and a grandfather who was taking his grandson, the second victim and a 14-year-old singing sensation, to an audition at the Center. The third victim was a Catholic woman who worked as an occupational therapist assisting the visually impaired. She was visiting her mother at Village Shalom. Thankfully, no Jews were killed or injured. Continue reading

Deception, Once Removed

Once a week, an email comes in announcing the greatest way to get new “leads” ever. All I have to do is hitch my reputation to some internet scheme that blatantly lies to the public, and clients will flock to me.  One of my favorites is this:

So what if the scheme is deceptive, since it’s not me saying these things, right?  After all, some non-lawyer (or new lawyer) decided to dwell in the gutter of entrepreneurship, and they’re the ones running the scheme. The lawyer just signs up to get cases. He has no say about what the scammers are doing.

Well, thankfully, the Indiana Supreme Court held that the lawyer is responsible for the deceptive and unethical practices of the lead-gen website scheme to which he lends his name, his reputation and support. Continue reading