Author Archives: SHG

The Circular Failure Of Objectivity

Reversing the Appellate Division, First Department, the New York Court of Appeals held in People v. Graham Reid that a search incident to arrest can’t be based on the very evidence found during the search.  Kinda seems obvious, notwithstanding the fact that the defendant lost before the trial court and the intermediate appellate court, which affirmed his conviction for which he’s serving an indeterminate sentence of two to four years for possession of a switchblade.

The defendant was stopped for drunk driving:

[P.O. Jacob] Merino stopped the car and approached it. He saw that defendant’s eyes were “very watery” and his clothing was disheveled. There were plastic cups in the car’s center console, and the officer detected an odor of alcohol.

No big deal, even though, as it later turned out, the defendant’s blood alcohol content was zero.  As in not drunk in the slightest. But, there is always that smell, which unfortunately can’t be captured as evidence, and so we must rely on the officer’s senses and honesty. Continue reading

The Glossy Untruth

In a post about some of the inexplicably ridiculous things coming out of 7th Circuit Court of Appeals Judge Richard Posner’s mouth about privacy lately, Judge Richard Kopf included this in a comment:

In my experience, particularly with Title III interception applications, government’s agents and lawyers are careful not to lie or mislead. By the way, in this District no agent appears seeking a Title III order (or even a search warrant) without an Assistant United States Attorney who has carefully reviewed the submission appearing with the agent. With Title III interception requests, the applications cannot even get to a judge without approval from a senior DOJ official at Main Justice after careful review.

To anyone who has never had to make a Franks motion, this may offer some measure of comfort.  A Title III warrant is for wiretapping, one of the most intrusive measures available to the government. The idea that the feds are listening in should strike fear in the hearts of all, and only happen (if at all) under the most limited of circumstances, and then with the strictest of limitations.  After all, when a person is whispering words of love to a spouse, there really isn’t a good reason for some G-men recording it for playback at the Christmas Party. Continue reading

But For Video: A Mistake of Law

Following the Supreme Court’s watering down of police expectations in Heien, a few people asked for examples of what they were talking about when they approved “objectively reasonable” mistakes of law.  Fortunately, there is a video out of Victoria, Texas.

Dashcam video from the incident posted by Raw Story, above, shows officer Nathanial Robinson, 23, pull over Pete Vasquez, 76, at Adam’s Auto Mart in Victoria, Texas, as “Under Ground Kings” by Drake blares from the cruiser’s radio. Continue reading

The Environmental Cleanup of Toxic Academia (Update)

The emotional pleas for understanding the profound trauma that students are enduring in the aftermath of the Garner and Brown grand juries are coming fast and furious.  Harvard 3L and law review editor, William Desmond, gave it his best shot, only to be ridiculed for his melodramatic prose and vapid reasoning.

Oberlin student, Della Kurzer-Zlotnick sent an impassioned plea to her professor as a privileged white student on behalf of students of color, for accommodations, only to be met with a terse “no.”  This outraged her enough to issue a trigger warning based on his dismissiveness.  In the New Yorker, Harvard crimlaw prof Jeannie Suk, in a curiously conflicted post, explains why law professors are giving up teaching about rape:

But asking students to challenge each other in discussions of rape law has become so difficult that teachers are starting to give up on the subject. About a dozen new teachers of criminal law at multiple institutions have told me that they are not including rape law in their courses, arguing that it’s not worth the risk of complaints of discomfort by students. Even seasoned teachers of criminal law, at law schools across the country, have confided that they are seriously considering dropping rape law and other topics related to sex and gender violence. Both men and women teachers seem frightened of discussion, because they are afraid of injuring others or being injured themselves.

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Lefty Hate

When I read Omar Mahmood’s parody, Do The Left Thing, I was rolling on the floor. The kid is good. I mean, he has it.  Oh sure, no doubt he was going to rile up all the folks who bleed with every papercut, but that’s the point of satire.  Piss them off. Make them think. It’s a great change of pace from wallowing in feelings of misery.

That Mahmood was met with the whine of the tenderhearted, his satire created a hostile environment at his other paper, was par for the silliness course.

And until recently, he enjoyed writing for both of the campus’s newspapers: the institutional, liberal paper, The Michigan Daily, and the conservative alternative paper, The Michigan Review.

After penning a satirical op-ed for The Review that mocked political correctness and trigger warnings, The Daily ordered him to apologize to an anonymous staffer who was offended and felt “threatened” by him. He refused and was fired.

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Heien v. North Carolina: Close Enough

It’s no surprise that the only Supreme Court justice who has any meaningful trial experience in a criminal courtroom is the lone dissenter.  Bad as Fourth Amendment law has developed, at least there was one leg of the stool that still held weight: the law.  The law is the law, for better or worse. Ignorance of the law is no excuse, goes the platitude.

No more. In Heien v. North Carolina, by a 6-2-1 decision, the Supremes have completed the fuzzying up of search and seizure law that began with Whren, where phony “objective” justifications for a stop were approved even though they bore no connection with reality or truth. The Court then followed through to mistakes of fact, built on Brinegar, but raised to an art form in Herring, where police incompetence that created the “mistake of fact” was sufficiently reasonable to cover their screw-up.  But the third leg of the stool was the law; all else aside, there still had to be a violation of law. Not close to a violation. Not a kinda, sorta , law is too hard for dopey cops to know, violation of law. An actual, real, hard, passes muster with a court, violation of law.

No more.  Chief Justice John Roberts opens his salvo thusly:

As the text indicates and we have repeatedly affirmed, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Riley v. California, 573 U. S. ___, ___ (2014)…To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them “fair leeway for enforcing the law in the community’s protection.”

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Twit or Tweet (Update: The Twit Lives!)

When Twitter first “happened,” I was unimpressed. So much so that, in my curmudgeonly way, I announced that I would not use twitter.

And now there’s Twitter.  It’s a horrible name, but it probably plays better with younger folks (the type of people who rarely use the word “folks”).  I heard of Twitter, but didn’t have the slightest clue what it was.  Kevin O’Keefe has cleared this up for me.  I feel so on top of technology today.

I was so above it all. And I was wrong, as soon became obvious.

When first I was told of twitter, I scoffed.  Obviously, it was for people whose thoughts fit within 140 characters.  I meant that in a pejorative way.  You wouldn’t find me on twitter.  That was a few thousand twits ago.

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Only Facebook Knows

Three hundred and eighty-one people had their Facebook accounts subjected to search, and as of now, nobody knows why.  The targets of the search remain unaware, as they were never notified that a warrant was issued long ago.  And there are a whole lot of targets, whose online life now sits in a box in the New York County District Attorneys’ office, including whatever pictures they once thought were private and only for the viewing of the select few.

The prosecution claims it doesn’t have to, because the judge who signed the warrant, Melissa Jackson (the granddaughter of Supreme Court Associate Justice Robert Jackson), also sealed it so that no disclosure would be required.  Without anyone knowing about it, no target can challenge it, whether to suppress the contents or, if there is no justification for the prosecutors to pass around their jpegs during office parties, destroy their booty.

But Facebook, to its enormous credit, didn’t do the great belly flop and let it slide. From Jim McKinley at the New York Times:

The search warrants were signed last year by Justice Melissa Jackson on the strength of a 96-page affidavit that has never been made public. Continue reading

“If Your Mother Cooked Meth”

In simpler times, schools taught “reading and writing and ‘rithmetic.” They still do, to some extent, but that’s only a part of it.  Via the Yankton Daily Press & Dakotan:

During a school assembly Wednesday, U.S. Attorney Brendan Johnson asked a group of Wagner students to imagine facing 20 years in federal prison on drug charges.

“The federal courts have mandatory minimum sentences,” he said. “There’s a certain amount of prison time, and no one judge can give you any less. The only way to cut your sentence in half is to give information on others.”

Johnson is the United States Attorney for the District of South Dakota.  Perhaps he lacked enough drug conspiracies to keep him busy, leaving him plenty of time to visit the students at Wagner to explain the merit of cooperation. Not the getting along kind of cooperation. The giving up your mother to the cops kind. Continue reading

The Day Physics Died (Update)

A female student accused him of engaging in “sexual harassment.” Over the internet. She was participating in a MOOC, massive open online course, and he said something that offended her.  What he said is unknown, as it hasn’t been revealed and likely never will. Maybe it was pretty horrible, or maybe it violated that politically correct sensibility that just hurts so very much. Without details, this part may not be known.

But Walter Lewin is 78, retired from active teaching and, for a physics prof, a rock star.

The Massachusetts Institute of Technology said it had determined that a retired faculty member, Walter Lewin, a physicist with a distinguished teaching career, “engaged in online sexual harassment.” As a result, the university said, it has revoked his status as professor emeritus and removed his lecture videos and other course material from OpenCourseWare and edEx, the online learning platform started by Harvard and M.I.T. In a statement Monday, the university said it received a complaint in October from an online learner who provided information about Dr. Lewin’s interactions with her and other women online. After an investigation, the statement said, M.I.T. “determined that Lewin’s behavior toward the complainant violated the institute’s policy on sexual harassment.” Dr. Lewin, 78, retired from M.I.T. in July 2009, last taught a course on campus in spring 2008 and last taught an online course in fall 2013.

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Book Review: The Articulate Witness (Update)

What first caught my eye when I was asked to review The Articulate Witness, An Illustrated Guide to Testifying Confidently Under Oath, was that it would take under a half hour to read. It struck me as appropriate not only for its intended purpose, to help ordinary people to testify competently, but that it didn’t demand a major commitment on my part to read it.  Seriously, most books sent me aspire to mediocrity, and slogging through them is more than I can take.

The need for a good book on witness prep is obvious to lawyers. People whose testimony is desperately needed believe they will do just fine. Most won’t. Most are awful. Cops are well trained in the art of testifying, in deflecting hard questions, wiggling out of lies and mistakes, covering their holes.  The rest of us are not

Does The Articulate Witness fill that gap? No.  But then, how could it?  It’s a quickie book, plenty of illustrations, that in real time takes about ten minutes to skim. Its authors are Marsha Hunter and Brian K. Johnson, legal communications specialists, whatever that means, who apparently teach lawyers how to be persuasive.  Their Amazon bio is unreadable fluff, and so I stopped after the second line. Continue reading

A Kinder, Gentler NFL

Plaxico Burress played for the Giants because he was a great wide receiver. He was not a paragon of virtue.  Not only could he catch an oddly-shaped ball, but he could take a hard hit. That’s what football players do.

The National Football League has suffered some terrible press this past year, not just in the fact that some of its marquee players did bad stuff, but that Commissioner Roger Goodell appeared tone-deaf in his dealing with it.  Pot was serious. Knocking out your girlfriend in an elevator, not so much.

In response to the public uproar, Goodell modified the league’s “Personal Conduct Policy.“ At Volokh Conspiracy, David Post did an epic facepalm:

As I had feared, the NFL’s alternate legal system is a bit of a frightful mess. It applies

(a) to pretty much everyone touching the hem of the NFL’s garment…

(b) to pretty much all conduct 24/7, whether job-related or not…

and (c) whether or not such activity is lawful or unlawful….

Oh, and everyone subject to the policy (a category that includes secretaries in team offices, drivers of team buses, trainers, team statisticians, employees in the NFL Human Resources Department, . . .) has to “to promptly report any matter that comes to their attention (through, for example, victim or witness reports, law enforcement, media reports) that may constitute a violation of this Policy . . . [and] [f]ailure to report an incident will be grounds for disciplinary action.”

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