Author Archives: SHG

The One Who Got Away

People often ask if there’s a sure-fire, fool-proof way to beat a criminal case.  There is, but it’s not recommended.

While Mr. Libous was convicted last year of lying to F.B.I. agents and expelled from the State Senate, prosecutors have said that the statute of limitations barred them from charging him with the more serious crimes that were the subject of his lies: crimes like bribery and fraud.

Now, more than a year after his conviction, and some three months after his death from prostate cancer at 63, it might be said that time is again on his side. And it appears likely to help him, in the eyes of the federal authorities, get away with more, including the crime for which he was already convicted, despite his death.

You read that right. The trick is to die before the conviction is final. Ha! That’ll show ’em.

That is because Mr. Libous died after he filed his notice of appeal, but before it had been adjudicated. A seldom-used legal doctrine known as abatement ab initio, or abatement by death, allows the family or estate of a felon, under such circumstances, to move to have the conviction vacated and the indictment dismissed. Continue reading

Why Does Columbia Teachers College Hate “Black Boys”?

Prologue: It was more snark than serious that the New York Times had started publishing mad libs op-eds just to troll its readers. After all, one totally incoherent op-ed doesn’t make a trend. But there’s a second, this time by an associate professor at Teachers College, Columbia University, Christopher Emdin.  Poe’s Law? Trend? Or can the Times’ editors no longer distinguish rational positions from gibberish?

When dealing with a subject of some serious importance, and the failure of young black men to be adequately educated in public to achieve success in life, whether to go on to a college or find sufficiently fulfilling and lucrative employment, it’s a problem for everyone. When a person is vested in society, has a decent education or job, he will strive to maintain and improve the norms of society. If you’re doing well, you want to continue doing well, to do even better.

One of the things a criminal defense lawyer learns from years of representing young black men charged with crimes is that their lifestyle choices are framed by two primary influences: the first is that they can’t overcome the challenges of their youth. The second is that they have few alternatives. We can attack them for not being strong enough, smart enough, tough enough, for not rising above their circumstances, but that doesn’t help. Not everybody is Hercules.

Some aren’t that smart, and struggle with a lousy education born of myriad reasons, strong street influences that are far cooler and more alluring than the boring, unhip prospect of working hard in a crappy job for a pittance. Some are very smart, but the distance from 125th Street to the C Suite is too far to bridge. Continue reading

The 6th Circuit Finally Said The Magic Word: Punitive

Of the many legal fictions enjoyed by judges, few have done as much damage to as many people as calling sex offender registries “regulatory.”  The trick is that if it’s characterized as regulatory, then it’s not punitive. And if it’s punitive, then it opens a whole slew of constitutional rights that would render the concept unlawful. But if legislators squint and write the “r” word instead of the “p” word, and judges squint and agree, problem solved!

To see this game in action, we need only take a quick stroll down memory lane to Rainer v. Georgia.

Writing for a 5-2 majority, Justice Harold Melton rejected arguments that the provision, as applied to Rainer, was cruel and unusual punishment. Sex offender registry laws, Melton wrote, “are regulatory, not punitive, in nature.” “Because the registration requirements themselves do not constitute punishment, it is of no consequence whether or not one has committed an offense that is ‘sexual’ in nature before being required to register,” Melton wrote….

See what Judge Melton did there? Continue reading

Texas Hold ‘Em

When Northern District of Texas Judge Reed O’Connor granted Texas’ motion to enjoin the bureaucrats’ implementation of Title IX “guidance” requiring schools to accommodate transgender students in bathrooms, locker rooms and housing, advocates were furious. They hoped to sneak in their administrative rewrite of the law before the bell when a new administration might not be as willing to circumvent the law to achieve their goal.

Beyond appeals to emotion, they accuse Texas Attorney General Ken Paxton of “cheating” by forum shopping the case to O’Connor because he’s a sympathetic judge. Or, as they put it, antagonistic to transgender issues.

One thing Paxton didn’t mention is that the state did have a choice in where the the new case was filed. Texas chose the courtroom of U.S. District Judge Reed O’Connor, the same judge who had just ruled in the state’s favor in the other transgender case.

The phrase “forum shopping” is derogatory, suggesting that someone cheated to find a court where he could prevail rather than the proper court where an action should have been brought. Did Texas cheat?  That would certainly seem to be the clear implication. Continue reading

For Unworthy Defendants, Law Is Just A Technicality

They were two of the most powerful men in New York State. They doled out committee assignments and positions (which means money). No bill made it to the floor without their approval. And then there was the member money, the billions of discretionary dollars handed out to their loyal subjects to spread amongst the voters to show how much they were loved.

In the feudal system of politics, they were the liege lords. You bowed to them, and received their favors, or you didn’t exist. Shelly and Dean. They owned New York until Preet took them down.  They are now appealing their convictions, and their respective judges have allowed them to remain out on appeal. Outrageous?

Ever since they were found guilty last year in separate trials, Mr. Silver, 72, a Manhattan Democrat who was speaker of the State Assembly, and Mr. Skelos, 68, a Long Island Republican who served as the State Senate majority leader, have moved aggressively to stave off the day that they had to begin serving their prison sentences and pay the imposed fines.

In seeking bail pending appeal, they argued that a Supreme Court decision in June that overturned the corruption conviction of former Gov. Bob McDonnell of Virginia, a Republican, had changed the law in a way that increased their chances of winning reversals.

Continue reading

New York Times: Really Special Victims Unit

In a rambling, borderline incoherent and ultimately pointless op-ed, a Brooklyn writer named Leslie Jamison has found a way to make herself the most victimest victim of victims. Not an easy feat, these days, but then, her fertile imagination gave rise to an idea no one ever thought about before.

So what’s her trick? Micro-victimization.*

Jamison, you see, is a jogger. Big deal, you say? Every day, millions of people jog. They have for decades, since jogging became fashionable in the ’70s because people looked silly standing there in those cool suits. And any idiot could jog, making it the perfect physical activity for those who needed a fixx (not a typo).

But Jamison connected dots that have nothing to do with each other, at least not in the fashion of being materially different than any person being in the wrong place at the wrong time, She throws in social justice jargon, which is inherently usable with absolutely any scenario under the sun because of its joyous lack of meaning, and BAM, made herself the most victimy victim ever! Continue reading

Is San Diego Lawyer Mary Frances Prevost Unhinged?

JoAnne Musick is not only a contributing writer at Fault Lines, but the past-president of the Harris County Criminal Lawyers Association, maybe the best local criminal defense bar association in the nation.  So when a Houston lawyer, Brian Roberts, found that a post he wrote had been reposted without permission, JoAnne stood up for him, because that’s what honest lawyers do for other honest lawyers.

A lawyer stealing a post? Not exactly a new phenomenon. But there is a secondary phenomenon which takes a disgraceful situation and makes it worse.  There are two choices when a lawyer is caught red-handed stealing someone else’s posts. You can apologize for being a worthless scoundrel who lacks the capacity to write for herself, or you can be Mary Frances Prevost.

prevost2

Well sure, lots of people who lack the minimal competence to produce writing of their own steal the efforts of others to slime the internet with other people’s thoughts. And even though it’s wrong with attribution to lift a post wholesale, the problem is compounded when the claim that there was attribution isn’t true either.  But then, Prevost’s history with plagiarism is nothing new. Continue reading

Dress Code At University of Chicago? Big Boy Pants (Update)

A relatively innocuous retwit of third-wave feminist cartoon character Barry Deutsch caused him such butthurt that he felt compelled to ask that I not “tweet or mention him on my blog again.” This was odd in that, aside from the one retwit that came on my radar because of a Ken White twit, I had forgotten he existed.

I responded to Barry, “Sorry. That’s not how the world works, Barry. Feel free to block me, but I will mention you whenever I please.” And Barry did what has become de rigueur for the deeply sensitive male ally of feminists:

barry

Ironically, chances were slim to none that I would have mentioned him here, or anywhere else, because he’s insignificant. It’s unsurprising, as children often need the attention of grownups, and will go to desperate lengths to gain it.* Continue reading

Victim Blaming? So The Dentist Claims

The twists and turns of internet intrigue provide a never-ending source of amusement and bewilderment.  When I received a DMCA takedown notice from Carl David Ceder, the Texas Dipshit, he denied knowing anything about it.

He has not yet explained how this DMCA notice was sent (though he insists he doesn’t even know what it is).

Who stole Carl Ceder’s name, email, shoes and license to use his pic?  Heh. Who believes his bullshit is the real question.

But now, it appears to be an epidemic of people stealing other people’s identities to take legal action in their name. From Paul Alan Levy at Public Citizen, the latest victim is dentist Mitul Patel, who got nabbed going after Matthew Chan for leaving a Yelp review that said he pulled a bait and switch on him: Continue reading

When Meanings Morph: Can Statutory Ambiguity Be Manufactured? (Update)

In the discussion surrounding the meaning of the phrase “sex discrimination” in Titles VII and IX, Jonathan Adler at Volokh Conspiracy has taken a different and curious view.  Jonathan contends that the phrase is sufficiently textually vague as to give the regulatory agencies charged with implementation of these laws sufficient leeway to provide their interpretation.  It’s not that it’s vague from an originalist or legislative history perspective, both of which are indisputably clear, but from the text itself. Are the words “sex discrimination” unclear?

This matters because administrative agencies are authorized to interpret ambiguous language in the laws they are charged to administer, and their interpretations are entitled to deference. If, as Jonathan argues, this phrase is in need of clarification, then the interpretations contained in EEOC, Department of Justice and Department of Education “guidance” matter. If not, then they’re blowing hot air.

This doesn’t impact the failure to comply with the Administrative Procedures Act in creating regulations, even if they try to call them guidance to circumvent their legal duties, but the issue Jonathan raises is one of statutory interpretation, which applies to all laws enforced by administrative agencies, and not just the Civil Rights Act. It raises some fascinating questions. Continue reading

Fix-It-Feds

There are few jobs worse than being a member of Congress. One is being a New York City councilman.  At least a congressman gets to vote on laws that have an actual impact, even if they’re just one of 435 votes and have to spend every other waking second begging for donations. But a NYC councilman screams into the void, because the city council has essentially no power to do anything. Cool job if you can get it.

But one would suspect that someone elected to the NYC council, even from Queens, would have a small clue as to how government works. Apparently, that would give them too much credit. In an “exclusive,” the Daily News reports:

A Queens City Councilman is asking the Justice Department to investigate New York’s bail system, after the feds claimed it’s unconstitutional to keep poor defendants in jail because they can’t pay afford to pay bail.

The DOJ filed a friend of the court brief in a Georgia case last week arguing that it was unlawful discrimination against the poor to keep a man arrested for walking while intoxicated locked up because he couldn’t pay the fixed $160 bail for the offense.

Continue reading

Battle Of The Sexes (Update)

At a minute before midnight, Northern District of Texas Judge Reed O’Connor issued a decision in U.S. v. Texas shutting down implementation of the combined Department of Justice and Department of Education “Guidance” letter directing school districts to accommodate gender identity under Title IX upon pain of losing federal funds. With the school year about to begin, Judge O’Connor issued a nationwide injunction against the government enforcing its rules.

The rationale behind Judge O’Connor was nothing shocking or outrageous, despite advocates’ efforts to spin it so. These were the same arguments raised here, that these are regulations issued in circumvention of the Administrative Procedure Act, without notice and comment, and that the executive agencies grossly overstepped their authority by redefining Title IX (as well as Title VII) to convert the prohibition on “sex discrimination” into a prohibition against discrimination on gender identity.*

Almost all of the reaction to Judge O’Connor’s ruling focused on the propriety of opening bathrooms to transgender students, reminiscent of how the commentary about the Gawker demise focused on how awful Gawker was. These are policy issues, questions of what law people would prefer, rather than what the law is. Regardless of how one feels about transgender discrimination, the question of whether it’s prohibited by Titles VII and IX is entirely different.

As has been argued here, and held by Judge O’Connor, the executive agencies have pulled an agenda out of their butts, shoehorned it into existing law by dissembling, and sold it to a progressive public that wants the outcome without regard to the fact that there is no law behind it.  Continue reading