Author Archives: SHG

How Angry Guys Explain Acquitted-Conduct Sentencing (and why they’re wrong)

After the Supreme Court’s denial of cert in Jones, there appeared to be a sudden shocked recognition that people get sentenced for the crime for which they were just acquitted. This was by both lawyers and non-lawyers, who neither knew nor cared up to that point.  Readers here already knew exactly what this was about, but then, they’re usually ahead of the curve.

In a rush to catch up, there was a flurry of posts explaining what this meant. Few explained the logistics that justify this bizarre twist of law, some leaving one to ponder why they bothered at all.  But as is often the case, the boys at Crime & Consequences, Kent Scheidegger and Bill Otis, saw the opportunity and seized it.  Given the intuitive backlash to a piece of sentencing so important to their heart, this was an argument that needed to be made.  First, Otis’ shot:

For now I would note only two things.  First, the defense bar had its crack at this issue in Booker. Two remedies were on the table in that case:  Requiring a jury’s judgment beyond a reasonable doubt as to facts to be used at sentencing; or allowing judges to continue to find such facts by a preponderance, but no longer be required to follow the up-to-then mandatory sentencing guidelines. The defense got the latter option and has benefited considerably by it.  It can’t have its sentencing cake and eat it too, which is what was actually going on in the Jones cert petition.

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Being Offensive and Getting Offended: The Edith Jones Saga

A staunchly conservative federal appellate judge is invited to speak by the University of Pennsylvania’s Federalist Society about the death penalty.  It’s a potentially explosive mix, and unsurprisingly, it blew up.  Fifth Circuit Judge Edith Jones was grieved for saying, in effect, that blacks and Hispanics commit more crime, and more heinous crimes, than whites.  She said that no case has been made that systematic racism exists.

There was no record made of her speech and Q&A afterward so the content was reflected in the affidavits of those present.  Upon this record, a special committee considering the complaint of Judge Jones’ violating the code of conduct pieced together the words from the recollections of those present as well as judge Jones. It concluded:

It appears likely that Judge Jones did suggest that, statistically, African-Americans and/or Hispanics are “disproportionately” involved in certain crimes and “disproportionately” present in federal prisons. Needless to say, this topic can be extremely sensitive, and we do not doubt the affiants’ and witnesses’ repeated statements that they found the remarks offensive. Judge Jones herself recounted that she “was uncomfortable about alluding to such facts.” Jones Recollections 20-21. We recognize that, without an explanation or qualification, saying that certain groups are “more involved in” or “commit more of” certain crimes can sound like saying those groups are “prone to commit” such crimes.

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The Void

There were supposed to be posts this morning. I awoke and had posts to write.  My fingers were willing, but my host was not.

As I’m about to leave for breakfast, SJ is back up and working. It had been dead all morning because my host, A2Hosting, couldn’t manage to do its job.*  I assume it’s more of the mean bullies who have been plaguing it over the past week with their brute force attacks.

I understand this stuff happens. I also understand that they’re in the business of hosting, of taking money from guys like me to perform a function. They failed.

So now that my window of opportunity for today slammed shut, the posts that should be here are not. Instead, this tepid apologia for having nothing worth your time exists in its place to fill the void.  Sorry.

*This is not a request or opportunity for you to tell me about your favorite internet hosting business. I’m begging you, don’t.  Seriously.

Ferguson: Revenge of Officer Keith Novara

He didn’t like what she said. Whether it was her twits, her video or just the fact that Leigh Maibes protested isn’t clear. But St. Louis police officer Keith Novara decided that it was his official duty to make sure her employer knew of his displeasure.

From St. Louis Today:

A woman who criticized police on Twitter says an officer called her boss in an attempt to get her fired, so she filed a formal complaint “to return the favor.”

The officer doesn’t deny placing a call to the woman’s boss. His union says he was within his rights.

When Maibes called Novara back after she learned of his call to her boss, she recorded the conversation in which he attempted to justify himself.

Novara is heard saying, “I let them know, yes.” Continue reading

How To Manage Your Practice (And Not To Be A Major Screw Up)

This is a promo for my buddy, Andrea Cannavina, best known around the Twitters as @LegalTypist, who’s putting on a 4 hour show she calls Put Efficiency Into Practice : How To Organize Any Law Office.

Having had some very enjoyable lunches and discussions with Andrea, she gets it.  Technology is a tool, and like all tools, if chosen wisely and executed properly, it can be put to good and effective use. Or not, if you can’t figure out which is the business end of the hammer.

This is an exclusive and intense 4 hour workshop with legal Virtual Assistant and national speaker Andrea Cannavina who will teach you how to organize the processes, people and technology of your office so the administration and routine business functions are performed as efficiently as possible.

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Abuse of Legal Concepts In The First Degree

No, that’s not the law. No, you don’t get to use legal sounding words to create the appearance you have a clue what you’re talking about and make people stupider. No, it’s not okay even if you don’t mean to write legal gibberish because you’re not a lawyer. Yes, that means you, Ezra Klein.

You can go ahead and reset the “Days Since Vox Had A Lost Credibility Incident” calendar back to zero. Today’s lost credibility incident is brought to you by Vox editor-in-chief Ezra Klein.

In his response to criticism for his bad laws are good for the cause post, or what I now call the Big Hole, Klein, a non-lawyer but so very smart that he can perform brain surgery anyway, makes what can only be kindly described as a few “gaffes.”  After Sean Davis and Popehat surgically explain the error of his ways, he inserts a “correction.”

Corrections: There were two sloppy copy mistakes in this piece. First, an initial version of the piece used “substantive due process” rather than, as intended, “procedural due process”. Also, in the section explaining why civil and college courts don’t use the tougher, “beyond a reasonable doubt” evidentiary standard used in criminal cases, I accidentally wrote that “preponderance of evidence is a higher standard” when I meant lower. That’s been corrected, and the rest of the section remains accurate on that point.

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Taking Advantage of Children

Adults can’t not talk. It’s so ubiquitous that criminal defense lawyers joke about people’s inability to not try to talk their way out of an arrest.  Cops call it the “first best lie,” the story that a suspect tells when he thinks he can lie his way out of trouble, and the one that will hang him at trial.

The Miranda Court may have thought the warning would be the death of interrogations. They could not have been more wrong.  But what about kids?

Even when police interrogators left the room, cameras kept recording the teenage suspects. Some paced. Several curled up and slept. One sobbed loudly, hitting his head against the wall, berating himself. Two boys, left alone together, discussed their offense, joking.

What none did, however, was exercise his constitutional rights. It was not clear whether the youths even understood them.

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The Third Kind of Crime

In broad terms, there are three types of crimes.  The first is what most of us think of when we talk about crime, conduct that is so dangerous or morally culpable that it demands criminal punishment.  The second is the pseudo-crime, hidden behind the veneer of a civil sanction to circumvent constitutional scrutiny, and allowed to exist only by dint of awkward judicial gymnastics with the occasional wink.  But the bars on the cell are just as strong as they are for the murderer.

The third type is what might be called “accidental.”  Not the criminalization of accidents, but the routine imposition of a criminal sanction to enforce behavior that someone decides needs regulating.  The theory behind them is that some conduct is good or bad, and it’s up to government to enact a law to make us do or not do that conduct.  It ranges from regulations as to what type of trucks can be used to carry containers away from a ship to how high your grass should allowed to grow before your neighbors are rightfully annoyed.

The notion is that crafting rules for behaviors, no matter how banal, won’t work unless there is a penalty on the back end for noncompliance.  We should all feel that sense of community spirit as to keep our lawn looking nice, so as not to make our neighbors frown.  Yet sometimes, well, the grass grows too tall.  It spoils the neighborhood. It detracts from the sense of suburban perfection, like a dandelion or chickweed.  How awful.  Someone must do something about it.

And in Lenoir City, Tennessee, someone did: Continue reading

From Harvard, With Love (Update)

In the course of a few days, the nightmarish usurpation of American college campuses by the toxic combination of a radical political agenda and some phony stats has come under severe scrutiny and is finally called out for the dangerous sham it is. Ironically, it began with a defense.

At Vox, Ezra Klein spilled the beans.

SB 697, California’s “Yes Means Yes” law, is a terrible bill. But it’s a necessary one.

It tries to change, through brute legislative force, the most private and intimate of adult acts. It is sweeping in its redefinition of acceptable consent; two college seniors who’ve been in a loving relationship since they met during the first week of their freshman years, and who, with the ease of the committed, slip naturally from cuddling to sex, could fail its test.

This comes as no surprise to even the casual SJ reader.  But Klein didn’t come to bury the law, but to praise it.

The Yes Means Yes law is a necessarily extreme solution to an extreme problem. Its overreach is precisely its value.

In the name of the cause, we must sacrifice our children.  As KC Johnson explains, America doesn’t do “overreach.” Continue reading

Rachel Rodgers: Anything For A Quick Buck?

It’s not as if the idea wasn’t ugly when first announced, though it smelled of the typical taint of skirting ethical rules.  Then again, for Rachel Rodgers, ethics existed to oppress young, innovative, lawyers such as her.  Rules didn’t apply to Rodgers.

But that was back when Rodgers hooked up with a marketeer, Ash Ambirge, who had a marketing biz named House of Moxie and ran a website called The Middle Finger Project.  Much as Rodgers feigned being cool, Ambirge took it to a level well beyond anything Rodgers could have imagined.  Ambirge had edge, where Rodgers was the innovative twinkie lawyer.

Ambirge first retained Rodgers as her lawyer, paying a monthly retainer of $750 for a year under “Small Business Package #2,” but they were soon to be partners in an e-book, Small Business Bodyguard, which gave/didn’t give legal advice.  According to Ambirge, the book consisted of “rudimentary legal checklists” which she jazzed up with her ‘tude. So what? If dopey online entrepreneurs were foolish enough to get their legal advice from a book of basic lists, with the fees for that advice split between lawyer and non-lawyer, they get what they deserve. Continue reading

Sotomayor and Kagan, An Unforgivable Denial

It’s the case that the Supreme Court said it had been waiting for.  It’s the case that embodied not merely the wrong of sentencing on unconvicted conduct, but the outrage of sentencing on acquitted conduct.   The Supreme Court denied cert in Jones v. United States (see pages 14-16 of the order).

The case is better known for defendant Antwuan Ball, convicted of a single sale of crack and acquitted after trial by jury for a larger drug conspiracy.

To recap, the defendants were charged in a massive crack conspiracy, plus violent crimes. They went to trial, which took 8 months. The jury deliberated for more than two months before returning a verdict.  They acquitted on all counts, except a single distribution count of 600 grams of crack.  Great result? Not so fast.

At sentencing, the district court nevertheless found that all three defendants had engaged in the charged conspiracy and, based largely on that finding, sentenced them to terms of imprisonment ranging from fifteen to nearly nineteen years.

But, but, but . . . acquittal?  Not in this system, pal.

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Judge Kane Rejects Regulating Today’s “Tom Paine”

Colorado’s Coalition for Secular Government isn’t exactly the largest group around.  Its description is a “small think tank” consisting mostly of Diana Hsieh, who holds a doctorate in philosophy.  In her effort to do things in accordance with the law, she registered her “group” with the state.

While it was self-funded initially, Dr. Hsieh ultimately sought donations online, which ranged from $200 in 2008 to $3500 in 2014.  Under Colorado law, that’s sufficient to require it to be subject to onerous state regulation, think SuperPac, because of the state’s abiding interest in making sure that political speech, fueled by secret big money sources, never happens without its oversight.

When the push for Colorado’s “Personhood Amendment,” to limit a woman’s right to an abortion, was proposed, the CSG took action:

CSG recently released the paper, “The ‘Personhood’ Movement Versus Individual Rights,” which Diana Hsieh and [Ari Armstrong] coauthored. The paper argues (among other things) that the so-called “personhood” measure on Colorado’s ballot, Amendment 67, would violate women’s rights to seek an abortion, to use the birth control of their choice, and to seek common in vitro fertility treatments. The paper also makes the philosophic case for a woman’s right to seek an abortion.

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