Author Archives: SHG

Lewinski, Revealed

It usually comes as a surprise to non-lawyers how little information one can obtain about a witness for the other side. While some states allow depositions, and most states require disclosure to the adverse party, it doesn’t happen, and no one cares. Yes, the statute says you’re entitled to it. The other side says, “meh.” The judge says, “meh.” And that’s that.

How is this possible, you ask? Welcome to the law, kidz. For criminal defense lawyers, it means going to trial pretty much blind as to what the witnesses for the prosecution will say.  So how do we prepare?  On the fly, as best we can, because there is no alternative. You can cry about it, wring your hands, scream “unfair” all you want. Nobody gives a damn. Not the prosecution. Not the judge. Not the appellate court. Shrugs all around.

All of which makes what’s happening in Albuquerque both infuriating and, well, happy.

Prosecutors trying two former Albuquerque police officers for murder recently were granted access to numerous records from a controversial witness with a long history of testifying on behalf of police officers who shot people in the line of duty. Continue reading

Tag, You’re Screwed

In the olden days, the word “communication” in a restraining order that forbade a person from communicating with another person meant not to speak in person, call on the phone, send a letter or, if we go really far back, send a telegram.  It was easily understood, because it was widely accepted that these were the normal means of communication. It didn’t require greater detail.

But we now have a slew of means of engaging in communication that didn’t exist before.  And unlike the historic means, they not only involve direct communications, but indirect.  We can include their @twit name in 140 characters directed toward someone else, or no one in particular, for example. We can link to their blog or website. We can also tag them in a Facebook post.

Is this communication in violation of an order prohibiting communication?

Maria Gonzalez was not allowed to contact her sister-in-law Maribel Calderon. The New York Law Journal reports, though, that Gonzalez tagged Calderon in a Facebook post and is now being charged with second-degree criminal contempt because of the alleged tag. CNet reports that she is facing a year of jail time. Continue reading

On Writing: Dazzle Or Baffle

It’s unfortunate that academics rarely grasp the shithole they’re in until someone dumps a pile of vomit on their heads, forcing them to make the choice of whether to duck. But then, it can get warm and comfy in that hole, and require something particularly disgusting to cause an academic to take a hard look at why they do.

Laura Kipnis was forced into this unpleasant situation, things just got worse from there.  But it wasn’t for naught, as Kipnis explains when being interviewed on writing.

How did you learn to write for a more general readership?

Kipnis: I’d shown one of my videos at the big cultural-studies conference at Illinois, then for some reason the organizers asked me to write something for the volume — that first huge cultural-studies reader. I said I wanted to write on Hustler magazine,  which I was a little obsessed with at the time, and to my surprise they said sure. So that came out and caused a bit of a stir because it raised class issues in relation to porn, which wasn’t something being talked about at the time, certainly not by feminists. Then Joy Press, who was an editor at The Village Voice, asked me to write a cover piece on Larry Flynt timed to the Milos Forman biopic about him that had just come out. Which was the first time I was really edited. It was like going to writing school for a year crammed into a couple of days of editing. Continue reading

4th Circuit: Tasers Hurt. A Lot

You wouldn’t think that the question remains up in the air, but then, something that’s been discussed for years, acknowledged by pretty much everyone who has a clue and accepted as given reality by thinking people everywhere doesn’t exist in law until a Court says so. We’re still waiting for a judge somewhere to proclaim that the earth is round. Until then, you could fall off the edge, so be careful out there.

Tasers inflict pain. It’s what they are meant to do. But the question of whether the infliction of pain is an acceptable use for getting someone to comply with a cop’s command, even if the person poses no threat of harm to the cop, was the core issue before the Fourth Circuit in Armstrong v. Village of Pinehurst.

The case involved the death of Ronald Armstrong, who suffered from bipolar disorder and paranoid schizophrenia. He escaped from the hospital and the Pinehurst police were called to catch him.

Armstrong was acting strangely, however. When Officer Gatling first initiated conversation, Armstrong was wandering across an active roadway that intersects with the Hospital’s driveway. Gatling successfully convinced him to withdraw to the relative safety of the roadside, but Armstrong then proceeded to eat grass and dandelions, chew on a gauze-like substance, and put cigarettes out on his tongue while the police officers waited for the commitment order. Continue reading

Riding Orin Kerr’s Law Enforcement Trolley

In what is nearly a complete homage to the academic perspective on reality, the New York Times Room for Debate takes up the question of whether the FBI was right to become the foremost disseminator of child porn.  Aside from one kiddie porn advocate, whose essay was an utterly pointless digression into his feelz, all others were lawprofs.*

The issue was discussed here, challenging the propriety of the court’s facile excuse for crime perpetrated by the government because it’s just an ugly necessity in the war on crime, while imposing massively draconian sentences on defendants for doing the same thing. This point was part of Elizabeth Joh’s condemnation of the FBI’s conduct.

But Orin Kerr took up the law enforcement rationale, putting it in the context of the Trolley Problem.

You probably know the dilemma of the trolley problem: A runaway trolley is barreling down the track and will kill five innocent people in the way. You can pull a switch that will direct the trolley to a different track. But another man is standing on that second track, and pulling the switch will lead to his death. Continue reading

Unplanned Parenthood: Law Triumphs Over Politics

At Fault Lines, Murray Newman has written the definitive post on how Harris County District Attorney Devon Anderson, a staunch conservative Republican, put law ahead of party politics.  While everyone else is screaming about their hatred, Murray tells a story of prosecutorial integrity.

No matter how you feel about Planned Parenthood or abortion, this is what you must know.

The Make-Believe World Of Police Policy

It’s somewhat painful to see sincere people put in a great deal of effort to fix a very real problem and not blindly root for their success.  It’s not that I don’t want them to be successful. I do. Really. It’s just that they lack the experience to appreciate that theoretical solutions that fail to take reality into account are doomed to fail, and that all their effort and good intentions won’t change reality.

Campaign Zero, the solutions wing of the Black Lives Matter movement (the real one, not the faux college microaggression movement seeking to usurp the serious problem of cops killing black guys with their hurt feelings over sandwich meats and mistaken word usage), is trying very hard to provide ways to fix the problem.

The effort is worthy of applause and appreciation.  The problem needs to be fixed. No, it’s not the only problem in need of a solution, and no, it’s not the only harm to black lives, or white lives. And it’s not even the problem that harms the most people. But it is still a terrible and inexcusable problem. And it needs to be fixed.

But will this fix it? Continue reading

Back To Basics: Rape Is Not A Title IX Violation

Harvard law professor Jacob Gerson landed a big soapbox at the Wall Street Journal for his op-ed. As he teaches admin law, it’s hardly surprising that the focus of his post was the technical requirements of an administrative agency ignoring the procedures mandated by law for the creation and imposition of its rules and regulations. Hammer, nail, stuff.

In the past several years politicians have lined up to condemn an epidemic of sexual assault on college campuses. But there is a genuine question of whether the Education Department has exceeded its legal authority in the way it has used Title IX to dictate colleges’ response to the serious problem of sexual assault.

Whether there is an “epidemic,” an oft-repeated word that has become part of the untouchable myth of the problem, is highly debatable, both in terms of what constitutes rape and sexual assault, and whether it’s happening or perceived by those who conflate feminist politics with criminal conduct, stealing very serious words untethered from meaningful definition.

And indeed, there is a “genuine question” of whether the DoE has exceeded its legal authority. But the failure to use the requisite administrative procedure, though certainly a very real flaw, is but one flaw, and likely the least significant one.  After all, had the agency not unilaterally rammed its “guidance” down the open mouths of universities, and instead employed the required notice and comment before crafting its rules, would the outcome have been different? Continue reading

The Curious Quiet Around Peter Liang

The trial of New York City Police Officer Peter Liang is beginning. Who, you ask?  Liang, the cop who killed Akai Gurley.  There was no question that Gurley did nothing, absolutely nothing, to justify dying at the end of a cop’s bullet, yet there are no protests, no cries of “no justice, no peace,” for his death. And the cops don’t give a damn about what happens to one of their own either.

What gives?

In the scheme of things to get outraged about, this just doesn’t make it onto the radar.  There is no venal intent, so no one seems capable of getting too worked up about a black kid’s death. This time.

Liang is not accused of intentionally shooting Gurley, who was walking in the unlit stairwell with his girlfriend. The bullet ricocheted off the wall and struck Gurley in the chest. Continue reading

Broken Windows Lite

It must suck to be the speaker of New York City Council.  Melissa Mark-Viverito holds that position of great power and importance, and yet has so little to do that she, in conjunction with Mayor Bill de Blasio, have put her energies into crafting a compromise that fulfills two pressing progressive needs: How to micromanage the behavior of New Yorkers without unduly impacting blacks and Hispanics.

To this end, they’ve come up with a package of eight new city laws to eliminate “quality of life” offenses, the sort of stuff that was the target of “broken windows” policing.

New York City is poised to reshape how it treats many so-called quality-of-life offenses, softening its stance toward low-level infractions like public urination and drinking alcohol in public by steering those cases away from the criminal court system.

Under the legislation, New Yorkers given tickets by the police for offenses such as violating city park rules, a misdemeanor now, would in many cases be steered to a civil process rather than criminal court.

Continue reading

Good Cop, Bad Cop: When The FBI Gets Into The Kiddie Porn Biz

The argument is twofold: first, that without someone who wants to view kiddie porn, there would be no call for anyone to create kiddie porn. Second, that every time someone views child pornography, the child is again victimized.

That was the justification for not only the absurdly long sentences imposed on defendants, but the demand for the imposition of restitution in the amount of $3.4 million on each and every one of them.  They deserved it. The harm was so horrible, so awful, that every one of them deserved it.

This argument was taken so seriously that it wound up before the Supreme Court in Paroline, an opinion so vague as to leave everyone pondering why the justices got paid that day.  So Sen. Orin Hatch proposed the Amy and Vicky law, because this harm was so horrible that it demanded remediation. Continue reading

A Second Chance, For the Judge

While it’s hardly new to have a federal judge spill his guts these days, it’s also not the norm for judges to put themselves on the line in full public view. To his credit, District of Connecticut Judge Stefan R. Underhill does so in a New York Times op-ed, in which he openly questions a sentence he imposed years ago.

In 2006, I sentenced a man to 18 years in prison. I have been wrestling with that decision ever since.

As a federal district judge, I’ve sentenced hundreds of people, but I’ve rarely agonized as much as I did over this man’s fate.

Before delving further, two things need to be understood. Judge Underhill’s reference to the hundreds of people he’s sentenced, and to the fact that he has wrestled with his 2006 sentencing decision, speaks well of him.  But then, he was charged with sentencing human beings, a judicial responsibility, for which he was poorly prepared. Continue reading