Author Archives: SHG

Cassell To Obama: Do What I Failed To Do

I haven’t always been kind to former federal judge turned victims’ rights advocate and law professor, Paul Cassell.  That’s not going to change now, even though it might appear to some that he’s done something praiseworthy.

A former federal judge in Utah asked President Obama Tuesday to “swiftly” give clemency to Weldon Angelos, a man he sentenced to 55 years in prison in connection with selling marijuana.

Calling the sentence “one of the most troubling that I ever faced in my five years on the federal bench,” Paul G. Cassell, now a professor at the University of Utah’s law school, said the mandatory minimum sentence he was required to impose on Angelos was one of the chief reasons he chose to step down as a judge.

It’s not that Angelos is undeserving of clemency. It’s not that his sentence, a by-product of the government’s charging decision and the stacking requirements of 18 U.S.C. § 924(c), plus the Supreme Court’s uncharitable decision in Deal v. United States, is not absurd. Indeed, Cassell said as much in his written opinion following sentence.  Continue reading

Alt-Constitution: The Fantasy Game

Outside of academia, few would know or care that it exists. There is a movement afoot by progressive scholars to create an alternate Constitution Day, one that celebrates not the piece of paper upon which our nation was founded, or the evil rich, white, slaveholding misogynists who wrote it and ratified it, but the dignity of its victims. A symposium was held at the Race and The Law Prof Blog.

Professor Starger in a blogpost for Constitution Day 2015 reiterated this critique and issued a call to celebrate the Constitution on a different date. He argued that

[t]he flawed document of [1787] no longer rules us. We can now proudly celebrate the reconstructed Constitution. In 1987 the great Justice Thurgood Marshall critiqued bicentennial celebrations of the 1787 date, saying: “While the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality.” When we interpret – or celebrate — today’s praiseworthy Constitution, we should look not only to the nobler commitments of the original Founders, but also to Reconstruction’s promise of a nation that is uncompromisingly respectful of human dignity. (Emphasis in original.)

Or shorter, the original constitution was a document that fixed slavery and oppression of women, and it required a civil war and 650,000 deaths to correct these flaws. Continue reading

Ted Nugent’s Mouth And Madeleine Albright’s Tongue

To anyone whose head isn’t so firmly planted up their most beloved sacred cow’s butt, it has long been obvious that every side in politics has its nutjobs. Few can rock as well as Ted Nugent, but that doesn’t make him less insane.

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And that’s just the start of it. When attacked for his rabid anti-Semitism, Nugent doubled quadrupled down. Continue reading

Candid Camera And Search Warrants

There are cameras out there. Lots of cameras. Some take a constant stream of video of a street corner, say 42nd and Broadway, where tens of thousands of people walk every day. Others go up for more particularized reasons, such as the camera affixed to a utility pole outside the trailer of the Houston brothers in Tennessee, where it remained for ten weeks.

What’s the difference? Not much, said the Sixth Circuit.

Such warrantless recording is permitted, the U.S. Court of Appeals for the 6th Circuit said, because people have “no reasonable expectation of privacy in video footage recorded by a camera that was located on top of a public utility pole and that captured the same views enjoyed by passersby on public roads.”

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To A Lawprof’s Credit, Where Due

Baltimore lawprof Garrett Epps is feeling pretty good about himself.  When he taught law in Oregon, Mike Arnold and Tiffany Harris were in his class.  And there they were, on the TV screen, representing Ammon Bundy.

In the early hours of the morning, law professors wonder whether anything we do makes the world a better place.

Today, I feel pretty sure that the answer is yes. That’s because, on January 28, I awoke to a televised image of Ammon Bundy’s lawyer, Mike Arnold of Eugene, Oregon, reading a statement urging the other Malheur protesters to stand down. Arnold is a former student of mine. So is Tiffany Harris of Portland, who represents Shawna Cox, the 59-year-old woman who was arrested in the car with LaVoy Finicum, the militant spokesman who was shot during a traffic stop near the occupied Malheur National Wildlife Refuge.

I couldn’t be prouder.

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ABA Hops Aboard The Speeding Train As It’s Crashing

For more than a decade, early advocates of the Reinvent The Future of the New Normal of Law have been telling lawyers that the end is near.  The preferred analogy was that technology and alternate models for the practice of law were a speeding train, and that if we didn’t hop aboard, we would miss it.

Some of us have been watching this train all along. We watched as those shouting their glorious predictions of future greatness fell off, never to be seen again. Lexblog’s Kevin O’Keefe notes that after a decade of attending LegalTech, the view of the midway is filled with fresh young faces.

The exhibitors are getting increasingly younger. Take that from someone approaching 60 way too fast. I often wonder though if the these people selling know as much about their product and what it offers as the lawyers, tech and information/knowledge management people they are selling to.

If you read between the lines, what Kevin is saying is that the fresh young faces of ten years ago are gone. Nobody talks about failure. It disappears in the ether, only to be replaced by the next fresh young face filled with the promise of future greatness. Continue reading

Tasers And The Worthless Confession

It seems intuitive when you think about it. Those 50,000 volts don’t merely impact one’s muscles and nervous system, but can addle one’s brains as well.  And let’s face facts, there are brains that are more than addled enough, and a tasing will put them over the line.

Scientists say the results — detailed in the journal Criminology and Public Policy — call into the question the legitimacy of police questioning in the immediate aftermath of an arrest involving the use of a Taser.

“The findings of this study have considerable implications for how the police administer Miranda warnings,” lead study author Robert J. Kane, a professor of criminology and justice studies at Drexel, said in a news release.

The efficacy of Miranda warning has never been entirely clear.  The Supreme Court assumed that following its decision in Miranda v. Arizona, no one would ever willingly subject themselves to interrogation, because it was obviously a really stupid thing to do.  Continue reading

FOIA And The Quick Buck

It’s not wrong to believe that if Congress or a state legislature passes a law, it somehow makes that law magically happen. It’s terribly naïve, but not wrong. It’s not just the “take care” clause, that the executive branch doesn’t like the law, so it refuses to put any effort into making it happen. It’s not even that mandates usually require money, a bureaucracy, behind them, and Congress hates putting money where its mouth is.

So great ideas (along with the horrible) find their way into laws that the public thinks will change everything, and ultimately become just another morass of broken promises, good ideas that don’t pan out.  When collateral issues arise, someone will point out, “wait, there’s a law for that,” and ponder why that’s not a good enough answer.

Have you met the FOIA, the Freedom of Information Act?  It may be one of the most promising laws ever enacted that failed so astoundingly to fulfill its promise. At PrawfsBlawg, Margaret Kwoka explains why. Continue reading

The Fatso Chronicles

Another op-ed about fat shaming graces the pages of the paper of record, because . . . we’re a nation of overweight people and we want to stop feeling badly about it.  It’s now a thing, called “fat shaming,” and it’s wrong because any word that diminishes a person’s self-esteem plus “shaming” is wrong.

Most people are startled by my unapologetic use of “fat” to describe not only the heroine of my novel, but my own body. To a majority of people, fat can never be anything but an insult. So I’ve explained again and again that fat activists use the word proudly in an effort to destigmatize not only the word, but by extension, the fat body.

By “most people,” fat activist Sarai Walker probably means most people she comes across, who give enough of a shit about the issue to spend their time paying attention to the self-absorption of fat activists.  I say that only because “most people” couldn’t care less.

But having shed over 30 pounds in the past few months (Atkins, if you must know, and I don’t care what you think, as it works for me), I have some authority to speak to the issue. It’s not that I was never thin, but over the past decade, my careful eating habits served only to delay the inevitable accumulation of fat around my middle. It caught up with me. With a vengeance. Continue reading

Who’s To Blame For Reform’s Two “Hostages”

It must hurt sometimes.  It’s not that the reforms will do much to change federal criminal law or practice, as they’re tepid at best. That won’t prevent the New York Times from throwing a party.

An opportunity to pass the most significant federal criminal justice reform in a generation may be slipping away — despite the tireless efforts of many top Republicans and Democrats in Congress, as well as a rare exhortation from President Obama during last month’s State of the Union address.

As an aside, the description of efforts as “tireless” is adorable, given that exhaustion has been a key description offered whenever someone complains about how hard it is to create their perfect world.

The bill, known as the Sentencing Reform and Corrections Act of 2015, is the product of years of negotiation over how best to roll back the imprisonment spree of the past four decades, a period in which the federal prison population grew from just under 25,000 to more than 195,000.

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LeGrier’s Killer Tries Tactical Chutzpah*

Off the top, one thing is certain: The factual allegations in support of Chicago Police Officer Robert Rialmo’s claim are completely incredible:

After Rialmo stepped into the front door of the building, LeGrier came “barging” out the front door of the second-floor apartment, holding a baseball bat in his right hand, according to the lawsuit. Rialmo had been standing in the front doorway, and when LeGrier got downstairs, he “took a full swing” at the officer, “missing (his head) by inches, but getting close enough for Officer Rialmo to feel the movement of air as the bat passed in front of his face.”

Rialmo, who was still shouting for LeGrier to drop the bat and had his gun in his holster, then backed down to the bottom of the steps.

LeGrier stood “with the baseball bat cocked back over his right shoulder with a two-handed grip, approximately 3 feet above Officer Rialmo and approximately 3 to 4 feet from where Officer Rialmo was standing on the bottom step of the front porch to the building. Officer Rialmo feared that LeGrier would strike him in the head with the baseball bat so hard that it would kill him,” the lawsuit states.

Officer Rialmo drew his handgun from its holster, and starting to fire from holster level, fired eight rounds at LeGrier from his 9 mm Smith & Wesson handgun, which holds 18 rounds, in approximately two and a half seconds,” the lawsuit states.

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