Author Archives: SHG

The Temporal Price

Imagine that you’re engaged in a serious debate of some significance to a strongly held belief, and after you make a particularly worthwhile point, the other guy says, “I’ll get back to you in 15 months on that.”  It would be ridiculous to think that the debate would hang, waiting for his reply.

Okay, that analogy doesn’t cut it for you? How about taking a child from a parent because of allegations that the parent was neglectful, and it took 15 months before it was decided that, oops, the parent was fine and there was no neglect. Here’s your kid back. What does that 15 month period mean to the parent? More importantly, what does that 15 month period mean to a child, the period representing a substantial portion of his life during which he was denied his parent’s love and guidance?

Meet the law. Some decisions never seem to get made, while others are snap decisions despite the lack of evidence or deep thought. Some claim to maintain the status quo ante, while others claim to avoid irreparable harm.  And then the case falls into the black hole of delay. The clock ticks. Days, then weeks, then months, pass. And nothing. Nobody can give the people involved, the people whose lives are touched, that time back.  And the legal system couldn’t care less.

In his dissent from the 9th Circuit’s refusal to sua sponte rehear the denial of an emergency stay of the order directing the removal of the film (and then modified to remove a scene from the film) Innocence of the Muslims, Judge Stephen Reinhardt packs quite a wallop, decrying the prior restraint, the infringement of fundamental First Amendment rights, and the significance of delaying the court’s dealing with this fiasco until it came before the court under the “regular procedure.” Continue reading

American Law Institute’s “Stunning Expansion of Criminalization”

The American Law Institute, once a prestigious body of scholars and thinkers who strived to craft laws that better served societal needs, has been taken over in a bloodless coup by ideologues bent on recreating the law to suit their ideology. It’s not like I didn’t tell you this was coming.

As you are aware, the American Law Institute (ALI) has undertaken a review of the sexual assault provisions of the Model Penal Code. The undersigned members of ALI are concerned about the direction the project has taken. Although the drafts have generated little attention outside of the project itself and although the project has been criticized for late distribution of drafts (see e.g., ALI Reporter, Summer 2014 at 23), we hope that you will consider our concerns both before and during the upcoming Annual Meeting session on Tuesday, May 19 at 9:00 a.m. when Discussion Draft No. 2 dated April 28, 2015 will be considered.

It goes before the annual meeting tomorrow, and it’s everything a feminist college sophomore coed could dream of.  The predominant position on the ALI task force is progressive academics who want to turn the criminal law into a reflection of that which has overtaken colleges across the nation.  A minority group has been left to join in a letter to ALI to protest the capture. Continue reading

Breaking: Cops Lie

Richard Emery was once a firebrand civil rights lawyer, fighting the man.  That is, until he became the man.  Because of his background litigating against police misconduct, he was given a seat on the New York City Civilian Complaint Review Board, the toothless tiger created as a palliative body designed to give the impression of oversight of police.

With each subsequent scandal, and its related commission, it was tweaked a bit to acknowledge its worthlessness and finally make it work, until the next scandal, next commission. In 2014, Emery became its chair. Within a few months, Emery was fully co-opted into the system.

The CCRB issued a 110-page annual report, its first with Emery as its chair, revealing this shocking epiphany.

In New York, the number of false statements noted by the agency, while small, has grown in an age of easy and widespread video and audio recording by civilians. In 2014, the agency found 26 instances where they believed an officer gave a false statement to investigators, a total equal to the previous four years combined. Continue reading

Atomic Wedgie Gone Wrong

There aren’t many young men who are unfamiliar with the atomic wedgie, whether because they gave them or received them, or both.  It’s a staple of childish pranks, of school yard bullies, or fraternity initiations.  And it can kill.

Atomic wedgie is the slang name for the most extreme version of the common underwear-yanking prank bullies pull in high schools across America. There are both how-to and how-to-survive videos online related to atomic wedgies that have been watched thousands of times.

Yeah, you remember it. Don’t lie. Don’t deny it.  Ripping the elastic waistband as it was pulled up your back was the least of your concerns.  You know exactly what I’m talking about. Continue reading

The “Cop Myth” Listicle, Annotated

Seth Stoughton comes at this with some well-deserved street cred, having spent five years as a Tallahassee police officer before going to law school and, after graduating in 2011, turning lawprof at the University of South Carolina.  His recent New York Times Room for Debate essay made a great point, distinguishing the legal justification for police force from its avoidability.

He’s now written a brief listicle for Time, entitled “8 Things We Still Get Wrong About Policing,” which seeks to balance misperceptions by the public and police grounded either in excessive anger and cynicism or defensiveness.  In just a few words, Stoughton makes strong, clear points, not an easy feat.  That said, the well-intended effort to balance the sides may itself create imbalances, false equivalencies, worthy of consideration. He asserts by way of introduction:

There is anger on both sides of the debate, and for good reason. Communities are angry because they feel victimized by police abuses. 

But while anger can motivate us to have important conversations, it becomes counterproductive when we allow it to dominate those discussions. 

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Tsarnaev Gets Death

The Commonwealth of Massachusetts had no death penalty, so Dzhokhar Tsarnaev was tried by the feds.  Because the Boston Marathon bombing, together with the subsequent murder of MIT Police Officer Sean Collier, was, without question, a heinous crime causing terrible harm to so many.  Yet, death?

In a sweeping rejection of the defense case, the jury found that death was the appropriate punishment for six of 17 capital counts — all six related to Mr. Tsarnaev’s planting of a pressure-cooker bomb on Boylston Street, which his lawyers never disputed. Mr. Tsarnaev, 21, stood stone-faced in court, his hands folded in front of him, as the verdict was read, his lawyers standing grimly at his side.

Judy Clarke and her team did an extraordinary job trying to prevent a sentence of death. The primary thrust was that Dzhokhar, the younger brother, was under the influence of his older brother, Tamerlan. It was a well-grounded argument, but the jury rejected it.

With its decision, the jury rejected virtually every argument that the defense put forth, including the centerpiece of its case — that Mr. Tsarnaev’s older brother, Tamerlan, had held a malevolent sway over him and led him into committing the crimes.

According to verdict forms that the jurors completed, only three of the 12 jurors believed that Dzhokhar Tsarnaev had acted under his brother’s influence.

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The Right To Film Cops Comes Into Focus

While it appears that there is a general, amorphous right to film police, a decision by Judge Kevin Castel, SDNY, Higginbotham v. City of New York, both focuses and fuzzies the right at the same time.  The cases involved Douglas Higginbotham, a free-lance video-journalist, working for TV New Zealand covering Occupy Wall Street. And New York’s Finest treated him like anyone else.

While he was filming “an arrest that resulted in a significant injury to the person being arrested,” he was ordered to climb down from the telephone booth by the defendant police captain, but could not immediately comply because there were too many people surrounding the booth. Eventually, he began to climb down, and when he did so, the three individual [police officer] defendants pulled his legs out from under him, causing him to drop his camera and fall onto the ground.

He was cuffed (plastic) for three hours, held until issued a summons for disorderly conduct, which was subsequently dismissed.  And he sued.  In a decision denying summary judgment, the court rejected the defendants’ claim of qualified immunity by holding:

The Court concludes, however, that the right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded, was in fact “clearly established” at the time of the events alleged in the complaint. When neither the Supreme Court nor the Second Circuit has decided an issue, a court “may nonetheless treat the law as clearly established if decisions from . . . other circuits ‘clearly foreshadow a particular ruling on the issue.’”

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Offense, All Around Homan Square

Chicago police wanted 33-year-old Angel Perez to be a snitch, and brought him to their place at Homan Square for some persuasion, according to Spencer Ackerman in the Guardian.

It was 21 October 2012. The day before, Perez had been driving his Rav-4 on his restaurant delivery route when he says police accosted him, wanting him to contact a drug dealer who they believed Perez knew so they could arrange a sting. But Perez was less cooperative than they had hoped.

Not everyone has a burning desire to be a snitch, especially when they aren’t involved in drug dealing at all.  But, as judges repeat so often, snitching is an “important law enforcement tool,” and so the police don’t always take no as an answer.

Now, Perez was handcuffed by his right wrist to a metal bar behind a bench in an interrogation room on the second floor of Homan Square. Behind him were two police officers that a lawsuit Perez recently re-filed identifies as Jorge Lopez and Edmund Zablocki. They had been threatening him with a stint at the infamously violent Cook County jail if he didn’t cooperate.
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The Relative Value of Lawyers, Revisited

The first thing I received was an email, with the subject line “Media Inquiry.” That’s the standard line when a reporter needs a quote for a story and wants to speak with you. It was on a very obscure detail, about which I had written, so I responded “sure, give me a call at my office tomorrow.”  He did, at about 6:30 p.m.  Office hours no longer mean what they used to mean.  I was gone.

But the next day, we finally hooked up, and his first question was, “tell me about yourself.” Another lonely reporter?

“I’m a criminal defense lawyer. That’s kinda why you emailed me in the first place, right?”

“No,” he explained. “Give me your elevator pitch.” I told him, “Sorry, but I don’t sell laundry detergent in elevators.” He then went through a litany of asinine questions, like whether I’m an “expert” in any specific type of cases, or whether I held some cool, official title, or was I ever a professor somewhere. Continue reading

If Only Cuomo Had Sons

At least New York Governor Andy Cuomo makes no bones about it being a matter of personal self-interest.

“As a father of two college-aged girls, with a third on the way next year, this isn’t just an important issue for the state, it’s a personal issue for me as it is for many parents who every fall say goodbye to their children with an expectation that their schools are doing everything they can to keep them safe.”

And that’s why Cuomo has no shame in saying, “This will be the toughest law in the nation, and I am proud of that.”  After all, there is  a scourge, and it’s teed up perfectly for him. Continue reading

Just Dickering Over The Price

Jamison Koehler never struck me as a violent sort of guy, so it was a bit surprising that he would end up sharing his client’s desire to punch the complainant.

I wanted to hit him myself.

This is what I tell my client after speaking with the complainant in a simple assault case. My client is accused of punching the complainant in the face.

It’s not that the desire to punch someone doesn’t happen, but most people don’t. When they do, it doesn’t always turn into a case as it doesn’t rise to the level where the punchee feels it worthwhile to pursue. Being punched once is bad enough. Having to deal with the cops over a simple punch, with no lasting injury, just adds insult to the mix. But not this guy. Continue reading

The Twisted Lawyer (And In Other News Update)

Mental health is one of the last deep, dark holes for disability advocates, as it begins to emerge into the sunlight of recognition that it’s not just the refuge of ax-murdering psychopaths but otherwise ordinary, intelligent, thoughtful people.  And yet, does that mean that our societal acceptance of psychological problems as a health issues make it out of bounds as a concern for lawyers?

Via Wally Olson at Overlawyered, the Department of Justice is investigating the Florida Supreme Court for evaluating candidates for admission for mental health issues.

The investigation was opened last December by the Justice Department’s civil rights division as an alleged violation of the Americans with Disabilities Act. The division wrote Chief Justice Jorge Labarga notifying him of the investigation.

For several years, the Justice Department has discouraged state bar licensing groups and the agencies that oversee them from asking people applying for law licenses about their mental health status.

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