Author Archives: SHG

Getting Along With Your Ex

In his on-going deconstruction of D. C. Magistrate Judge John Facciola’s order denying the government’s warrant to search all the emails of its target, Orin Kerr at WaPo Conspiracy takes the court’s Second Memorandum Opinion to task. The government lost again, for having done nothing more than switching some language from Exhibit A to B, cosmetic changes as the judge called it.

Judge Facciola’s new opinion reminds me of why I think it is necessary for such reasonableness issues to be litigated ex post in the context of adversarial litigation rather than announced ex ante in response to ex parte warrant applications. The reasonableness of executing the warrant is something that ordinarily would be analyzed ex post in the context of adversarial litigation.

In his first order, the judge strongly hinted that the better solution was to allow the keeper of the emails, in this case Apple, to search for the government, then turn over only those emails that were responsive to the government’s need for evidence. Or, the government could just knock down Apple’s door and raid the place, if the warrant is approved. Continue reading

Weev Goes Home and So Can You (Update)

In breathtakingly short order, the Third Circuit has issued its decision in United States v. Andrew Auernheimer a/k/a Weev.  Weev won.  Tor Ekeland picked him up last night, just in time to audition for the next Hobbit movie.


And lest anyone think that the Weev has grown soft and contemplative in the can, his twits (no doubt by his friends in Weev’s name, since Weev was in prison at the time) show otherwise. Continue reading

Too Simple

Yet again, marketing guru Seth Godin has managed to put into words one of the things that has long pissed me off but defied my ability to explain.

Lock in is what happens once you have a lot of followers on Twitter… it’s not easy to switch. Same with all social networks. And operating systems too–it takes a lot of hassle to walk away from iOS.

Once a company has achieved lock in, one way to grow is to appeal to those that haven’t been absorbed (yet), to change the product to make it appeal to people who need it to be simpler, dumber and less powerful, because (the company and its shareholders understand) the power of the network becomes ever more irresistible as it scales.

Forget, for a moment, that he uses Twitter as an example. It doesn’t matter. His point is that you create website/product/system A and it works. It gains traction. People like it, use it, enjoy it. Continue reading

When The Bully Tells The Truth (Update)

Following the tragic suicide of Rutgers student Tyler Clementi, the State of New Jersey did what so many advocates demand: pass a law. Deemed the “toughest” anti-bullying law in the nation, the applause could be heard loud and clear.  And as too often occurs, the zealous “do it for the children” folks knew that it would bring about a perfect world where no child’s feelings would ever be hurt again.

Lice.  Head lice, to be precise.

The Rutherford Institute is challenging New Jersey’s law because lice.  No child wants to be called a carrier of lice.  Except, maybe they are the carrier of lice.  From

John Whitehead, president of the Rutherford Institute, said the enforcement of the law is problematic. Schools should be safe, he said, but well-meaning statues “are Orwellian in nature and inevitably run afoul of the Constitution.”

“How far do you take this, especially with children,” he asked. “Free speech in some instances is hurtful.” Continue reading

A Warrant Technicality

The New York Post, never shy when it comes to emotive headlines, spelled it out in a way that couldn’t help but make its readers’ blood boil at the ineffectiveness of the legal system to make sure the bad guys go down.

Judge tosses evidence in gun bust on warrant technicality

And if that’s not enough to make you wonder how law-abiding citizens can survive these crazy, criminal-loving judges, the story that follows will surely do the trick.

A Brooklyn federal judge has tossed critical evidence against a alleged crack-dealing Queens gang member busted with an assault rifle, throwing his case into turmoil, court records state.

Judge Jack Weinstein voided evidence against Shakeel “Blam” Wiggins last week because an NYPD cop didn’t properly fill out a search-warrant application that turned up the weapon as well as a handgun and a cocaine cache last September, court papers say.

The ruling will likely allow Wiggins, a prior felon, to walk. Continue reading

Revenge Porn: Appeal To Reason or Emotion

Bob Ambrogi and J. Craig Williams did a Lawyer 2 Lawyer interview on Legal Talk Network with Lee Rowland of the ACLU and Marc Randazza on the propriety of using criminal laws to stop revenge porn.

In the second half, they bring Mary Anne Franks in to debate the issue.  It’s a fascinating juxtaposition of Appeal to Reason versus Appeal to Emotion. Guess who was on which side?

Best line of the broadcast was from Lee Rowland:  “Criminal law is a blunt instrument for regulating human dysfunction.”  As experience has taught us over and over.

Further, your affiant sayeth naught.

Golb Revisited: What If It Meets All The Elements?

The peculiar case of Raphael Golb, and his sockpuppet defense of his father’s research on the dead sea scrolls has been the subject of a few posts already. And yet, oral argument before the New York Court of Appeals gives rise to another question worthy of note. It’s the case that keeps on giving.

Via Eugene Volokh at the WaPo Conspiracy (for as long as it remains public before hiding behind its paywall).

Here’s the quote from the transcript, or you can find it in the oral argument video:

JUDGE PIGOTT: So if … you get some college kid who write – – – who e-mails the girlfriend of his roommate saying, you know, he really is a useless person. Is that aggravated harassment with respect to the victim, boyfriend/roommate?

MR. RIVELLESE: Yes, because it’s got – – -


MR. RIVELLESE: It meets all the elements. It does not require that the person that you send the communication to is the same person that you intend to harass, annoy and alarm. It’s – – - Continue reading

Faithful To The Story (Update x2)

When I first read Gideon’s post at A Public Defender, it had the wrong smell, the wrong feel.  It was an awful story, about how a judge refused to remove a juror in a child rape case who made it as clear as possible that she was biased.  The point of the story was the efforts put in to create the appearance of rehabilitation.

The prosecutor then asked the juror: “You haven’t heard any evidence. How would you vote?”  Juror 112 responded, “I would have to vote guilty.

The judge asked if she could return a verdict of not guilty if the government couldn’t prove it’s case beyond a reasonable doubt.

“I don’t think I would be able to,” the juror replied.

The prosecutor tried again: “Let me ask you this flat-out. Let’s say the victim takes the stand [and] you flat-out don’t believe her. In fact, you think she’s lying. You look at her [and conclude] ‘I don’t believe a word coming out of her mouth.’ Are you going to convict this man anyway?”

Juror 112 responded before the first witness in the case had been called, “That depends. I still feel he was at fault.” Continue reading

Cameras Work (When The LAPD Wants Them To Work)

Cameras. Dash cams. Body Cams. The cure for police transparency, that protects and proves that the police conducted themselves properly, with the added benefit of providing a record of the defendant’s wrongdoing and statements. What’s not to like?

Apparently, enough that the Los Angeles Police Department found out that some of its officers screwed with their mandated cameras so that they wouldn’t work.

Los Angeles police officers tampered with voice recording equipment in dozens  of patrol cars in an effort to avoid being monitored while on duty, according to  records and interviews.

An inspection by Los  Angeles Police Department investigators found about half of the estimated 80  cars in one South L.A. patrol division were missing antennas, which help capture  what officers say in the field. The antennas in at least 10 more cars in nearby  divisions had also been removed. Continue reading

The Alibi versus The Crack Witness

Ace crime reporter Oren Yaniv broke the story of Jonathan Fleming’s release in the Daily News, reminding us yet again of the good fortune of not living in a state where executions are available.  After nearly a quarter century in prison for a murder he didn’t commit, Fleming is “elated.”

Brooklyn prosecutors are slated Tuesday to set free a man who spent more than two decades in prison — the latest in a spate of conviction reversals.

The murder conviction of Jonathan Fleming, 51, will be tossed following a reinvestigation of the August 1989 slaying that landed him in prison for over 24 years, the Daily News has learned.

In August, 1989, Darryl Rush was murdered in Williamsburg, Brooklyn.  Of this, there is no doubt. Continue reading

Victim Blaming, Victim Proofing (Update)

It was nearly seven years ago that I read GW lawprof Dan Solove’s book, The Future of Reputation.  After doing so, I sat down with my kids and had a nice talk about doing stupid things on the internet, and how that could come back to bite them in the butt later.

The upshot was to teach them to think ahead, to understand the potential unintended consequences of doing something that might seem cool or fun at the moment, but could have dire consequences later.  The point was to protect their reputation in the future, despite whatever they felt like doing today.

As I read a BBC post promoting the revenge porn advocates’ efforts to get criminal laws enacted, a quote by a baby lawyer from Brooklyn was quite disconcerting: Continue reading

Bronx ADA Megan Teesdale: Integrity Lost

The Daily News reports that Bronx Criminal Court Judge John Wilson dismissed a rape charge.  The defendant was cut loose.

The defendant, Segundo Marquez, had been held at Rikers Island for more than eight months awaiting trial on reduced misdemeanor rape charges stemming from a 2010 incident.

And then, it was gone.  The reason, however, is not so easily dismissed.  It wasn’t until summation at Marquez’s trial that all hell broke loose.

The two week-long trial had reached closing arguments when one of Teesdale’s supervisors informed the judge about a note on the case file referring to the contradictory testimony.

The prosecutor trying the case, Megan Teesdale, got caught. Continue reading

Is It Crazy To Be Nuts?

At the Faculty Lounge, Charlotte lawprof Brian Clarke “came out.”  No, not about sexuality, but something still hidden in deeper, darker places where society has yet to begin to accept.

I will admit to being a bit nervous about even raising this topic.  (Given the nature of many anonymous internet commenters, I think most people would be hesitant to bare even a minute portion of their souls online and attempt to engage with a very serious subject, only to be subject to snarky or mean-spirited attacks.)  Plus, mental illness and suicide are not comfortable subjects for most people.  There remains a very real stigma attached to mental illness.  Many people believe that suffering from clinical depression, anxiety disorder, bipolar disorder, or a host of other mental illnesses is a character flaw or a weakness.  Having one of these diseases has been seen as something of which the sufferer should be ashamed.  This attitude has been in place for too long for people to easily change their perceptions and opinions.

However, as lawyers and law professors, we must to do more.  It is clear that our students need us to do more.  When you are depressed, you feel so terribly alone.  You feel different.  You feel ashamed.  You feel weak.  You feel like you will never feel better and that you can never be the person you want to be.  Continue reading

The Constitution Meets A Sign, and Loses

At the WaPo Conspiracy, David Post raises an interesting issue relating to the “seizure” by the TSA when one crosses an imaginary security line at the airport:

But even worse is this:  while waiting on the hoi polloi line, I started watching the TSA video that was running on the monitors overhead, and I was struck when the narrator said:  ”Once you enter the screening area, you will not be permitted to leave without TSA permission.”  Really?! Actually, I am permitted to leave without TSA  permission, whether they like it or not, because the Fourth Amendment’s prohibition on “unreasonable . . . seizures” gives me that permission. We have a word for this, too, in the law, when government agents don’t allow us to leave freely:  ”being in custody.”

While his point makes sense from a logical perspective, his fellow traveler, Orin Kerr, notes that the law doesn’t quite agree: Continue reading

Because No One Can Stop The Myth

In yet another screwy screed, Georgetown Law’s Bill Otis at Crime & Consequences, who fancies himself a leader in the war against the Smarter Sentencing Act, boosted by the recognition of C&C as the “top-rated pro-prosecution blog” according to a scam link-bait survey that’s been desperately trying to find fools pathetic enough link back to it, says the feds can’t reduce their prison population.  It just won’t work.

In debating the Heroin Dealers Bonanza Act Smarter Sentencing Act, I hear one question again and again:   Since some states like Texas and Michigan have reduced their prison populations over the last few years and  have seen the decline in crime continue, why can’t the federal prison system do the same?

Who, exactly, Otis debates with, aside from the voices he hears in his own head and the occasional dog, is unclear. But as strawmen go, it’s a fair question, even if framed in a self-serving manner.

Even if prison reduction programs work for the states, they are not going to work for the feds.  The feds prosecute precisely the kind of drug gangs, and drug offenders, who are the most violent, the most entrenched, and the most prone to recidivism. Continue reading

Brooklyn Law’s New Game

The New York Times business section profiles Brooklyn Law School, as Dean Nicholas Allard takes the bold move of refusing to play the U.S News & World Reports ratings game.

Brooklyn will hold tuition at its current level — $1,800 a credit, or $53,850 a year — for the class entering this fall. Next year, it will introduce an across-the-board 15 percent cut in tuition. It is also reducing some kinds of merit aid, increasing need-based aid and offering a curriculum that allows some students to graduate in two years rather than the standard three. “It’s still expensive, and I wish we could do more,” Mr. Allard said.

While holding tuition at current levels isn’t exactly radical (or inexpensive), the cut in merit aid is the kicker. Continue reading

Everything Old Is New Again

Walter Olson shreds the conduct of the FBI in seizing the antiquities collection of 91-year-old Don Miller in Indiana.

FBI agents Wednesday seized “thousands” of cultural artifacts, including American Indian items, from the private collection of a 91-year-old man who had acquired them over the past eight decades.

The aim of the investigation is to determine what each artifact is, where it came from and how Miller obtained it, Jones said, to determine whether some of the items might be illegal to possess privately.

Jones acknowledged that Miller might have acquired some of the items before the passage of U.S. laws or treaties prohibited their sale or purchase.

What is happening to Miller reflects a conundrum facing anyone who had the misfortune of getting caught in the net of modernity, the effort to revisit the rules in light of current sensibilities by demanding that things that happened in the past somehow match the rules of the day. Continue reading

But For Video: Your Lying Eyes Edition

Between the rhetorical “search for the truth” stuff that’s thrown up when convenient, and the burden of proof stuff that’s hauled out for the same reason, people would likely believe that a video that shows police testimony is false less than accurate would be good enough to put an end to a phony reason to stop a car.

Not true, said the Indiana Supreme Court in Robinson v. Indiana.  There, the trial court held a suppression hearing for the stop of defendant’s car, which was pulled over by Deputy Casey Claeys of the Elkhart County Sheriff’s Department.

Deputy Claeys later testified he saw the vehicle “drive off the right side, which was the south side of the road, twice.” Immediately after the second incident, he turned on his vehicle camera and initiated a traffic stop for “unsafe lane movement.” The camera, once activated, retroactively records the previous thirty seconds. Continue reading

DA Kathleen Rice: Shooting The Victim In The Head Justified

When Nassau County police officer Nikolas Budimlic decided that the best idea was to individually charge into a house where a gunman was holding people hostage, there were couple of possible outcomes. The first was that he would be a hero, get a medal and have a statue of him erected.  The second was that a lovely young woman, a Hofstra student, would lie dead before he was done, and the machinery of the state would crank into gear to shift the blame.

The odds were against Budimlic’s getting a statue.

Immediately after the death of Andrea Rebello from a bullet to the head, the gunman was blamed. Then it turned out that the “gunman” was Budimlic.  The police union then rushed to its member’s aid, explaining how it wasn’t the cop’s fault for shooting Rebello in the head, because criminals.

Then came the victim blaming, speculation about drugs in the house and how maybe Rebello was looking for Mr. Goodbar so that Budimlic’s bullet to the head wasn’t really a big deal. Continue reading

Evil In Albuquerque

Most people would be inclined to believe that the training regimen for police officers would be the subject of great oversight.  Perhaps a rigorous course of study developed by the best minds so that the public will receive the best service.  At the very least, it would be more than one guy’s idea of how a bunch of other guys with guns should behave.

Not in Albuquerque, which might answer the concern of former cop turned prof at John Jay College of coppery and shoe repair, Peter Moskos, asked after viewing the videos of the execution of James Boyd.

I think this was a bad shooting.

But what really worries me is that perhaps the officers performed exactly as trained. If so, we need to change police training (and not make scapegoats of the officers).

While Moskos holds cops in such low esteem that any bit of murderous stupidity can be sloughed off elsewhere, Continue reading