Author Archives: SHG

The Bar For The Bar Is The Bar

An old man gripes about inexperienced lawyers mucking up his courtroom with their oozing inexperience:

Not for the first time, I wondered why it was then that any kid out of law school or any office-practice lawyer could wander into my courtroom and take a federal felony case to trial or plea as counsel for the defendant if he or she was retained to do so by the defendant. Not to put too fine a point on it, that’s [Ed. Note: Trigger warning, ableist slur ahead] crazy. Nevertheless, virtually every day we stand by and watch inexperienced lawyers muddle about representing people charged with federal felonies merely because they passed the Nebraska Bar exam and someone was dumb enough to hire them.

It’s not like anybody named Rakofsky would take a murder case, right?

I propose that no lawyer be permitted to practice federal criminal defense law until he or she has been certified as sufficiently experienced to do so. Continue reading

Gertner: Rape and Enlightened Self-Interest

A recurring gripe is that readers agree with me 75% of the time, but that last 25% is the killer. Not only do they disagree, but they vehemently disagree, to the point where they want to reach through the computer and strangle me. How, they ask in earnest, can I be so wrong?

The “wrong” at issue is my writing on the subject of the changing tides of sexual assault, rape and neo-feminism.  The dilemma is easy to understand: liberal ideology vehemently supports the due process rights of criminal defendants, the free speech rights of individuals right up to the moment when an allegation is raised by a woman, whereupon the ideology does a 180° and blind support for women trumps everything else.  Why don’t I get that?

Female criminal defense lawyers have informed me that as much as they agree with me completely about criminal law, they find me intolerable when it comes to gender issues.  Whereas they take a principled stance when it comes to their duty as lawyers, they see no problem with abandoning all principle when the allegation is rape. Murders, no problem. Drugs, whatever. Rape? Well, that’s what ideology does to reason. Continue reading

Except For The Bullet In The Back

Chances are that it would have been a great story, a winning story, when Rocky Ford police officer James Ashby explained why he had no choice but to kill Jack Jacquez.

Jacquez was skateboarding on a street when the officer approached him. Ashby said Jacquez cursed at him and walked erratically before heading toward the yard of what turned out to be his house.

Ashby told authorities he suspected Jacquez was trying to burglarize the home. He also said he thought Jacquez was getting ready to strike him with a baseball bat.

What else could Ashby do but shoot Jacquez as he was about to strike the officer with a baseball bat?  Of course, it wasn’t exactly a perfect story, because Ashby had a small inconvenience to address, a ride-along passenger, Kyle Moore. Continue reading

Stupid People Tricks, Redlich Edition

When I first heard of the video, I winced, but didn’t think it sufficiently worthwhile to waste my time. After all, there are always magic tricks being spread about the internet that claim to have found a cool, secret, magic way to beat the cops at their own game.

One self-promoter wrote a book that did pretty well teaching people to puke on themselves based on the premise that cops won’t arrest you if you’re covered in vomit because then they’ll have to clean up their cars.  Then, there was the infamous Redemption Theory post at Bennett’s Defending People, where Mark gave the proponents of sovereign citizens a chance to smear their crazy all over the comments at his blog.

The latest along these lines, the plastic bag trick, was the subject of Matt Brown’s post at Tempe Criminal Defense.

An interesting DUI checkpoint video has been circulating lately. In it, the driver gets through without even rolling down his window, passing by with ease thanks to a plastic bag attached to his car with a string. The bag contained his license, registration, insurance information, and a note saying “I remain silent,” “No searches,” and “I want my lawyer.” As clever as it may be, it’s also dangerous to think it will always be that easy.

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A Note To Swiss Watchmaker (and others) (Update)

I sent an email to Swiss Watchmakers in Cambridge, this morning, but think the message applies to a great many things and is worth sharing.

I gave my son, Jack, a Glycine Airman Base 22 Purist for Christmas. I’m a watch collector, and I hoped that my son would share my love and appreciation of mechanical watches. When he saw the Glycine, his eyes lit up. I had given him a few watches before, but this time I really captured his interest. I was thrilled.

A few days later, he told me that the hands didn’t align properly. The hour hand was about 15 minutes off proper alignment. No problem, I told him. I called your shop and was told that you could handle it. I was told it would take a day or two, and that it would be no big deal to properly align the hands.

My son brought his watch to you on January 5th. He was told, as I was, that it would be done in a day or two, and he would be called to come get it. A few days later, he still hadn’t heard anything so he called (at my urging) and was told it was being worked on. So much for a day or two. Continue reading

Half Court Press

That law is a profession, not just a business, has long been a theme here, and I haven’t been shy about pounding that theme whenever possible.  And yet, I’m particularly wary when the theme is used in ways that blow beyond professionalism as a weapon against lawyers.

Aric Press, retiring from his 16 years as Editor in Chief of ALM (formerly American Lawyer Media), offered his parting thoughts in a paywalled post that was partially copied by Kevin O’Keefe.  Among his “lessons” learned while getting his ALM big guy paycheck was this:

Pro bono isn’t charity. I cringed recently when I heard a longtime public interest lawyer refer to pro bono work as what big-firm lawyers do so they’ll have something to put on their tombstones. I’m not that cynical. I think it’s work that lawyers do because they belong to a profession, and professions have obligations to the broader society in which they operate. Otherwise they don’t deserve the privilege of self-regulation and the honor of a special status in our courts. Part of the price for that status is serving those who can’t afford legal services. It’s a duty, in my view, but also an act of self-protection. With outside investment money beginning to slosh around the legal world, the question of bar regulation will be visited again in your futures. If you want to maintain the current framework, you have to pay the dues. It’s a profession, if you choose to keep it one.

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A Gift, With No Strings Attached

Since the first of the year, Mark Bennett has performed yeoman’s service to the blawgosphere and the law.  He has given us the gift of a thorough, thoughtful and legally irrefutable explanation of why the anti-revenge porn laws fail to satisfy existing First Amendment law, and why advocates of such laws have deceived and misled in their efforts to convince otherwise.

This is a gift that Mark has given to the rest of us, no strings attached. While the advocates have either posted their positions on big league websites like Forbes or been quoted approvingly by others as an appeal to purported authority, being law professors such that anything they say about the law must be true, by those who support their cause, Mark’s gift is available for any journalist who wishes to accept it.

The gift is out there, free to anyone who wishes to be honest and accurate about the failures of these laws to comport with the First Amendment, the concept for which the people at Charlie Hebdo died.  For a few minutes after that, many people took an interest in free speech, but that quickly changed to free speech provided it was speech they liked and valued. Continue reading

Adoption Will Be Just A Little Bit Harder

No, not getting your hands on one of those adorable babies in need of love, but cars, cash and other crap that local cops grab and send off to the Feds for adoptive civil forfeiture.  Out of the blue, Attorney General Eric Holder announced that the Department of Justice is no longer in the business of doing all the dirty work for local police departments.

Via WaPo:

Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without warrants or criminal charges.

Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.

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If You Liked 1 In 5, You’ll Love 1 In 3

Remember when every story about campus rape began with that glorious claim, that one in five women will be sexually assaulted in college?  Good times. And then they went and blew it all to hell, because, well, it was just total nonsense.  It turns out that the real number is .61%, not 20%.

Just as the narrative being used to turn all sexual interactions into rape and sexual assault, at the woman’s pleasure, was unraveling, a new statistic hit the media that brought joy to neo-feminists everywhere:

Certain feminists were almost gleeful Monday when they discovered a “study” that seemed to confirm their worldview that a large chunk of the male population just want to rape.

The study, announced in Newsweek, showed that 1 in 3 college boys in North Dakota would rape a woman if they could get away with it. Continue reading

Eric Brittain: A Lawyer Too Zealous

After making the decision to take on the Milwaukee Police Department in the Ronald Carter case, where the police were caught dirty by destroying evidence — a car, no less — in a cop shooting, one would think they would throw a parade for Eric Brittain. Hell, they did for the district attorney, so why not a good guy?

Instead, Milwaukee turned on him. The cops. The judges. The system.  No criminal defense lawyer was going to embarrass the polka capital of Wisonsin and get away with it, and so they did everything possible to make Brittain’s life miserable.  Including Brittain being held in contempt four times.

Four?  Well, that’s something, right?  Under the Nancy Grace school of culpability, where there’s smoke, there’s fire, which certainly means that Brittain must deserve it or it wouldn’t have happened.  After all, it couldn’t be just because his calling out the Milwaukee cops and system for wrongdoing made the yokels angry. That would be improper. Continue reading

The Trouble With Listening

At Defending People (Post 2015.20 for those of you who miss the Dewey Decimal System), Mark Bennett writes an homage to listening.

Listening is vital to trial lawyers. It’s probably more important than any other single skill, but it is less studied, less trained, and less practiced. Lawyers often don’t listen very well. I’ve seen egregiously bad examples from all sides of the criminal bar; many times I’ve wanted to shake a lawyer or judge by the collar and shout, did you not hear what that person just said?

One might suspect that Bennett has, in this paragraph, fully covered the subject with a bit of fascinating personal commentary thrown in for good measure. You would be wrong.

So I was thrilled to discover, via the Twitter Machine, Jennifer Romig’s Listen Like a Lawyer blog. It’s not really about listening like a lawyer, of course, since lawyers don’t listen very well, but about lawyers listening better.

Romig’s posts are lengthy, substantive, and link-rich. She’s writing for lawyers about things that lawyers need to know. (Before every trial I’m going to ask all of my juniors to read her recent post on second-chair listening.) This is the practical blawgosphere at its best. More, please.

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Pork and the Vagina

Mount Holyoke College was the first of the Seven Sisters, a woman’s liberal arts college to provide available and appropriate dates to Ivy League boys in the old days when college students still went on these things called “dates.”  It remains an all-female institution, even as the Ivy League has gone co-ed, because no guy wants to go there.

But this celebration of womanhood has hit a snag.

Women’s college Mount Holyoke has decided to stop performing Eve Ensler’s classic play “The Vagina Monologues.” The college has been annually performing theater classic for decades, but since Mount Holyoke redefined its definition of “woman” to include transgender students, many felt the play was neither inclusive nor representative of the student body.

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