Author Archives: SHG

Discrimination Nation

We discriminate. All of us. All the time. If we didn’t, we would be indiscriminate, and nobody wants to be indiscriminate. Some discrimination, such as discrimination based on race, is unlawful in certain circumstances such as employment. Other types of discrimination is not. We discriminate in the food we prefer to eat, the people with whom we chose to have romantic relationships, the players on our team, who to follow on the twitters.

We discriminate, and there is nothing wrong with discrimination. We are allowed our preferences, except when the law informs us we are not.

In 1964, Congress made an extremely controversial move at the time. It crafted a list of characteristics against which discrimination would be unlawful in employment. Title VII of the Civil Rights Act of 1964 included “race, color, national origin and religion.” These weren’t arbitrary words that someone tossed into a salad, but very deliberately chosen so that employers could not pull some shifty move, find an excuse that would serve to circumvent the law and undermine its purpose, to force a societal shift in our acceptance of racial equality.

You will note that the word sex wasn’t included in the list. Gillian Thomas of the ACLU accurately explains why: Continue reading

The Day Gym Class Got Really Weird (Update)

There is about eight months left to President Obama’s administration, and some significant doubt as to what will follow. Some have figured out that this means they have to work fast to assure their agenda happens, as they would rather ask for forgiveness than permission. You see, a fait accompli is hard to undo.

As reported in the New York Times, the plan is to make it happen now so that whoever takes office in January, whoever gets to sit at their desks in the next administration, they will have a legacy left behind. And today is the day they will make that happen.

“No student should ever have to go through the experience of feeling unwelcome at school or on a college campus,” John B. King Jr., the secretary of the Department of Education, said in a statement. “We must ensure that our young people know that whoever they are or wherever they come from, they have the opportunity to get a great education in an environment free from discrimination, harassment and violence.”

King’s words sound sweet, but they’re sadly disingenuous. When he says “no student,” he doesn’t mean it. He’s a smart guy, so it’s fair to assume he knows he’s lying and just doesn’t care. After all, if he spins his words carefully, he might get away with the lie. Continue reading

The Missing Witness And The Rejected Plea

Imagine if you went on vacation to some far off, wonderful place, where magnificent waterfalls flowed. And someone, realizing that you were not from around there, assaulted and robbed you.  A horrible experience, a terrible crime, but one that occurred far from home. In this case, Buffalo, New York. Okay, so the place isn’t exactly wonderful, but it does have great waterfalls.  This happened to Japanese tourist, Koyuki Nakahara.

Nakahara arrived in Niagara Falls on the afternoon of Dec. 25 with a 20-member tour group that traveled by bus from Washington, D.C., where they had visited the White House.

At about 11 p.m. Christmas night, she said she decided to make the most of her limited time here and left her hotel room to walk across the Rainbow Bridge to view the falls from the Canadian side.

Though the tour guide said the bridge plaza was nearby, she soon became lost. Spotting a man walking nearby, she asked him if he could point her in the right direction. What she did not know at the time was that he had driven past her a couple times, before parking and following her on foot.

One of the problems that arise in tourist towns is the targeting of foreigners. They’re easy marks, and, crime notwithstanding, go home afterward.  Continue reading

NPR’s Shifty Push For Well Deserved Public Shaming Of Campus Rapists

When District of Columbia councilwoman Anita Bonds came up with her stroke of genius, it was so ridiculously absurd as to serve only as a vehicle for ridicule. Everyone had a good laugh at her insane proposal:

Newly proposed D.C. legislation would require colleges to put a permanent and prominent notation on the academic transcripts of students who are convicted of sexual assault or who try to withdraw from school while under investigation for sexual misconduct — a “Scarlet Letter” that would follow them to new schools and graduate programs or into the workforce.

But that was a year ago. Back when Congressman Jared Polis laughed off the consequences of campus rape adjudications as insignificant.   Back when lawprof Corey Rayburn Yung argued that the usual punishment was a semester’s suspension, coining “good enough for twitter.” All to the effect of dismissing concerns about the wholesale denial of due process in conjunction with the Department of Education’s Office of Civil Rights’ rogue usurpation of jurisdiction over rape and sexual assault on campus. Good times. Continue reading

But For Video: The End Of The Chase (On Live TV)

Is this the usual ending? Hardly. No shots were fired and the person who contemptuously fled didn’t end up dead. Maybe that’s something he should be thankful for, but somehow appreciation for fine law enforcement doesn’t seem quite appropriate, even if it didn’t end in a hail of bullets.

As one would expect, the reports begin with why the guy beaten isn’t the sort of person anyone should lose sleep over.

The chase began just after 4 p.m. when a suspect, identified as Richard Simone, 50, of Worcester, wanted on multiple warrants including assault and battery with a dangerous weapon and larceny, refused to stop for police in Holden.

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Fault Lines: Two Judges, No Waiting

There’s been plenty happening at Fault Lines, which I assume that everyone should be totally aware of since you read every post there daily, right? Right?!? You should. And you should subscribe, so you at least get to see every post and realize how much you’re missing. Do it. I don’t ask for much, but do this for me.

So no, you won’t do it just because I asked you to? You are so unappreciative and demanding. If that’s not a good enough reason, how about this: Fault Lines is now the only place on the interwebs, ever in the history of man, where you can read and comment on posts by two (count ’em, two) federal judges. Oh, sure, you know that Senior Nebraska District Judge Richard Kopf writes at Fault Lines. Ho hum, you jaded little suckers say. As if you got to engage with federal judges off the record all the time. But now, double your pleasure, double your fun with…

Welcome, Colorado Senior United States District Judge John Kane.

Judge Kane, who was crossed last week, has graciously offered his thoughts in his inaugural post.  Where else do you get to read the ruminations of federal judges, comment on them, engage with them, without being held in contempt? That’s right, nowhere else. No. Where. Else. But Fault Lines. Continue reading

The Other Dark Meat

Before anyone would have believed that there could be a court in the United States of America that was closed to everyone but prosecutors, there was a need to keep certain things from prying eyes. There was a file kept in the clerk’s office at the old federal courthouse in the Southern District of New York, that held search warrant applications that had yet to produce arrests and indictments. You see, every paper signed by a judge has to be kept somewhere.

Not too many people knew about this file. It had a name and number, and could be requested from the clerks. And in it were secrets. Hard to find secrets, but secrets, there, in a file, for all the world to see if they knew the secret name and number. Then came FISC, the Foreign Intelligence Surveillance Court.  Even though it violated every precept of what a court was supposed to be since the Spanish Inquisition, it somehow didn’t bother us too much.

In 1978, Congress created the first secret court in our history — the Foreign Intelligence Surveillance Act (FISA) court. Staffed by Article III judges borrowed from federal district courts, this specialized tribunal issues surveillance warrants for foreign intelligence purposes. Understandably, given its mission, FISA court proceedings are ex parte and mostly secret, although the Snowden revelations in 2013 forced a partial lifting of the veil.

That’s not entirely correct, as criminal defense lawyers became aware of FISC long before, and raised holy hell about it, to which an appreciative nation went “meh.”  Of course, there was no internet back then, and the media wasn’t interested because everyone understood that the Constitution wasn’t “a suicide pact,” and we had to fight the commies lest we be forced to drink bad vodka. Our American fetish with law happening in a room where evil eyes could watch was obviously idiotic, and so a nation weaned on grossly sexist spy movies understood the need for secrecy. Continue reading

Bronx Defenders Sues To End Insufferable Delays (Update)

The class is huge, and every day, grows larger.  It’s made up of every person who is arrested and charged with a misdemeanor in The Bronx.  The complaint is that once someone goes into the system, it takes forever to come out.

Robin Steinberg, the Bronx Defenders’ executive director, said delays for people charged with misdemeanors — the lawsuit’s focus — had only gotten worse in recent years. Last year, there were more than 45,000 misdemeanor arraignments in the Bronx, according to court statistics cited in the suit. Ms. Steinberg said the misdemeanor cases accounted for the vast majority of the people entering the system.

So there are too many criminals in the Bronx?  Maybe so. Maybe not. It doesn’t matter, because even people who committed heinous misdemeanors, like smoking weed in public, are entitled to a speedy trial and due process.  The federal complaint is a “talker,” telling the stories of some defendants, like one of the named plaintiffs,  Michael Torres, who waited 877 days, through 14 court appearances, up to six hour waits each time he went to court, the loss of his job, only to have his case dismissed when the cop testified that he had no recollection of Torres.

Defendants charged with misdemeanors in the Bronx regularly see their cases languish far past the 60- and 90-day speedy trial limits set down in state law for various low-level offenses, because delays caused by the courts’ crowded calendar rather than the district attorney are not counted toward the limit. Defendants who wish to go to trial must often wait years and sometimes never get their day in court, a 2013 study showed.

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The War on Drugs Is Not Dead Yet

While some mouth the words of ending the drug war as an abysmal failure that’s destroyed hundreds of thousands of lives while accomplishing nothing, the mouth of an old-time drug warrior can be heard screaming and spitting. Welcome back, Bill Bennett.

The Sentencing Reform and Corrections Act now before Congress is based on a lie — that drug dealing is not a violent crime. Americans have been told this lie for years even as we witness the violence and death caused by drug dealers in our communities. Now, this lie is propelling legislation through Congress that will destroy more lives.

It’s not drugs. It’s violence. VIOLENCE! And anyone who says otherwise is a liar. A LIAR!!!

How can the drug trade be victimless when most Americans know a victim? How can it be non-violent when we witness the carnage every night on the local news?

The countless Americans victimized by drugs know the truth, as does anyone who has looked at the facts about America’s prison population.

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The Transgender Question On The Table

Attorney General Loretta Lynch has teed up a question that needs to be answered: is discrimination against transgender folks sex discrimination?  The Department of Justice has commenced suit against the State of North Carolina based upon its knee-jerk law in response to Charlotte’s transgender bathroom law.  Despite various issues with the NC law, the suit goes to some core questions:


Title VII applies to workplace discrimination.  It prohibits discrimination on the basis of sex. It makes no mention of discrimination on the basis of gender identity. Continue reading

Utah Struggles With Virginity: Punishing A Prosecutor For The First Time

What to do with an unethical prosecutor in Utah?  Such a hard, difficult, vexing question.  Not just because the courts are so very reluctant to hold a prosecutor accountable. They are, of course, because they would hate to make prosecutors feel the slightest bit skittish in protecting society from rapists and terrorists, but for a more legalish reason:  It’s never happened before.

It is a question the Utah Supreme Court is pondering in the case of a former Davis County prosecutor. Whatever the ruling, it will break new ground in attorney-discipline issues — it being the first time the justices have weighed in on a case in which a prosecutor is accused of violating his or her special duties.

There isn’t any question that Larsen is a total unethical scumbag. That much is firmly established.

Larsen has been appealing a seven-month suspension of his law license. He was fired from his job as a Davis County prosecutor after alleged misconduct during a 2010 aggravated robbery trial in which he showed the robbery victims a photo of the defendant, but did not show them any other photos as part of a proper photo lineup. This was not disclosed to the defendant’s attorney, who asked for — and was granted — a mistrial when one victim testified that Larsen had shown her the single photo.

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Randazza’s Anti-SLAPP Would Make No Sound In New York

Despite a certain irony in Dan Bilzerian suing TMZ for publishing a story about a woman who claimed to have gotten chlamydia from him, it happened.  The story was first published at The Dirty, which makes infinite sense, and then picked up by TMZ.  Bilzerian sued the Dirty, and then TMZ. Why? Because he can.

Dan Bilzerian is an Internet celebrity, known for his extravagant, jet-setting and partying lifestyle. He has a particularly strong social media presence on the website <> (“Instagram”), boasting over 12 million followers. He regularly shares photographs of himself
posing with scantily-clad women, large sums of cash, expensive cars, planes, firearms, and extravagant homes. He has been dubbed the “King of Instagram” and “Instagram’s Playboy King.”

You can’t tell instagram followers whom to love, right? But then, when a guy has a few bucks, and is willing to part with them, suing media who write about your alleged loathsome diseases is an excellent way to make sure no one writes about stuff that drips from one’s penis. And that’s precisely what Anti-SLAPP legislation exists to prevent.

Strategic Lawsuits Against Public Participation (“SLAPP” suits) are an affront to the freedoms of expression and of the press. Plaintiffs file SLAPP suits against media outlets not because of any objective merit, but to punish defendants for exercising their free speech rights. Such suits have a chilling effect on others who might also be inclined to do so.

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