Author Archives: SHG

Doctrine v. Realism: Naked Mudwrestling At Its Best

After learning of the Supreme Court’s grant of cert in Rodriguez v. United States, I posted some snarky, post-legal realism, observations about why this was less than good news.  The issue in Rodriguez is whether an extension of a traffic stop beyond the time needed to issue a citation in order to conduct a dog sniff, or pursue consent to search, or engage in a new line of questioning, is subject to a de minimus intrusion analysis.

Among the problems I foresaw was that the Supreme Court could hold that after the justification for the initial stop was completed, they were required to let the driver go without conducting any further intrusion or investigation. In other words, once the ticket was “processed” (a meaningless word I despise), the stop was over and the person free to leave immediately.  Any further action by the police was an unconstitutional extension of the seizure.

It struck me that this was the only viable holding.  The notion that they could engage in a new, suspicionless investigation, whether by questioning or dog sniff, was doctrinally empty. Once the justification for impairing a person’s right to be left alone ended, it ended. There was no authority for “just one more thing,” and without authority, the right to be left alone trumped everything. Continue reading

The First Scary Monday In October: Heien (Update x2)

The Supreme Court begins its new term today, and I’m scared.

The first argued case in the new Supreme Court term will be Heien v. North Carolina, a Fourth Amendment case about whether a reasonable mistake of law can create cause for a Fourth Amendment search or seizure. I think the defendant has the better argument that the answer is “no.”

Sure, easy for Orin Kerr to say, since it’s all just fodder for his next law review article if things go south. I’m not nearly as sanguine.  After all, if it doesn’t work out as well as Orin thinks it should, I’m one of the guys doing suppression hearings with a defendant’s hand clamped to my arm causing significant physical pain.

Orin, and Richard Re at PrawfsBlawg, do a good job of parsing the legal issues and, given the limited question upon which cert was granted, the remedies, and that’s all well and good.  But my concern isn’t doctrinal.  My concern is trendy. Continue reading

The New Model Revenge Porn Law; Better, But… (Update x2)

Lawprof Danielle Citron has come out with a book, Hate Crimes in Cyberspace, which will certainly be widely read by a very narrow audience, excerpted by her at Slate.  The slice addresses her flavor of a model revenge porn law, fascinating in that it reflects a deep schism between Citron and baby lawprof Mary Anne Franks.

It comes as no surprise that Citron, who is usually the grown-up in the Cyber Civil Rights movement, parts ways with Franks.  Their joint law review article, Criminalizing Revenge Porn, revealed a critical schism between the two, where Citron would require “knowing” that the person depicted in an image did not consent to its disclosure, while Franks was satisfied with “knows or should have known,” which would impute knowledge and effectively shift the burden from the accuser to the accused.

And, unsurprisingly, no mention is made of how the newest flavor of the model law corrects some of the deep flaws of earlier models, which were vehemently denied despite their being obvious to anyone who wasn’t blinded by extreme advocacy and pride of authorship.  Remember Franks’ affirmative claim that Eugene Volokh approves of her model law that mysteriously vanished from the narrative because it wasn’t close to accurate? Good times. But if one doesn’t get all hung up on intellectual honesty or acknowledgements, it can be overlooked.  After all, this is about preventing bad law, not the lack of graciousness in academia. Continue reading

Of Faxes, Glasses and iToy 6

My daughter’s iPhone 6 (not the 6S, because bendy) arrived, and it fell to me to make it work.  She’s an Apple aficionado, in contrast to my slavish devotion to DOS-based equipment.  Her prior phone was the iPhone 4S, because Siri.

I tried chatting with Siri some, and she’s really not very interesting or informative.  She was cute when I asked her for the answer to life, the universe and everything. She got it right.  Someone at Apple has a sense of humor.

But the deal for the iPhone 6 was too good to pass up. Aside from the absurd secondary charges that apply to anyone foolish enough to remain with Verizon, the phone was free. I couldn’t say no.

Even though the Verizon store couldn’t deliver on their television commercials for lack of phones without any foreseeable date of delivery, I was able to order it over the phone, and “recycle” the old one at the store. Of the many things that Verizon does in conflict with law and reason, this turned out to be relatively painless. Like suicide. Continue reading

Going To The Mattresses, The Parental Strategy

Emma Sulkowicz gained some degree of fame as “mattress girl” at Columbia University, where she engaged in what she described as performance art by carrying her mattress around with her to show how she “carried that weight” of being a “survivor” of rape.

This came after Columbia “tried” and found her accused rapist “not responsible.”  It came after she went to the NYPD and was told they would have to investigate rather than immediately imprison her accused rapist and have him thrown out of college. It came after she learned that they just wouldn’t do as she wanted. Continue reading

License To Kill

Last week it was the cyclists, dying on the fender of the devil car. This week, it’s the children.  Why does the New York Times hate cars?

Cooper was holding my husband’s hand as they crossed 97th Street and West End Avenue. They were in the crosswalk, with the light. By law, they had the right of way. The taxi driver failed to yield while making a left turn.

According to the mayor’s office, driver error is a factor in 70 percent of pedestrian deaths in New York City, yet motorists are rarely held accountable. The Department of Motor Vehicles reports that motorists are cited for careless driving in less than 1 percent of crashes. Even fewer drivers are charged with a crime. How can drivers who kill innocent pedestrians go free?

Seventy percent?  How is that possible?  It must be that the balance of pedestrian deaths comes from being run down by Chinese food delivery bikes and people walking head first into the ubiquitous scaffolding poles while deeply engrossed with Facebook updates. I would have expected 90% or better.

But Bill de Blasio has a tragedy, a child killed in a crosswalk, and it cannot go to waste. Continue reading

The Economist Discovers Plea Bargaining

The air is turning cooler. Leaves are turning from green to reddish brown. And plea bargaining sucks and should be discarded.  Autumn has returned.  Just as The New Yorker, in an article on the old Kalief Browder story, discovered that the legal system in the Bronx sucks, The Economist discovered that plea bargaining is fraught with evils.

It does a fairly sound job of listing the most obvious flaws with plea bargaining:

Alas, the process is open to abuse (see article). Prosecutors hold all the cards. If a defence lawyer offers a witness $100 for a false alibi, he is guilty of bribery. But if a prosecutor offers a co-operating witness something far more valuable—the chance to avoid several years in a cell—that is just fine. With so much at stake, snitches sometimes tell prosecutors what they want to hear. One study found that nearly half of the cases in which people have been wrongfully sentenced to death hinged on false testimony by informants, typically criminals who were rewarded with lighter punishments.

Hold the presses. They needed a study to tell them that snitches, typically criminals who were rewarded with lighter punishments, give false testimony?!?  Oh my! Continue reading

Puppy Time At The Supreme Court

No, not a post of puppy pics (sorry), but a question that’s been floating around since I read Orin Kerr’s post about the Supreme Court’s grant of cert in Rodriguez v. United States.  You may recall that the 8th Circuit held that prolonging a stop for 7-8 minutes was a de minimus delay, while the Supreme Court of Nevada held in State v. Beckman that nine minutes is too long.

This was the topic of a post a while back, but is back on the front burner in light of the cert grant.

Importantly, today’s grant is on whether there should be a “de minimis” rule at all, not on how low long it should extend.

Being all legal realist and all, the question is how will the cops be held to comply even if the Supreme hold that any extension or delay following the completion of the justification for the stop is prohibited? Continue reading

Choice, Poor Choice and Then What?

The hope, or maybe what is better characterized as the warning, that 25-year-old Maverick Ray wouldn’t resist the admonitions of so many other lawyers because he’s a young man of his generation who will not be bullied, died.  What is it about pushing back?

Ray, retained to handle a death case in Texas because his six months of experience as a lawyer made him every bit as capable as any other incompetent lawyer to do so, was hired because it struck his new client (beginning with Sharon Lynch, the defendant’s fiancé) as a really good idea.

“I didn’t want anyone from Walker County,”

She said she used the Internet to look for a criminal defense attorney in Houston. Lynch said she talked to “less than five lawyers” before speaking with Ray, who said he would take the case.

Lynch said she knew Ray had not been practicing long, but hired him because he was “fresh and not part of the old boy network.” She also said at the time she was under the assumption he was qualified to handle a death penalty case.

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Gov. Cuomo: New York Can Be Just As Foolish

Never one to be the only person left in the room without egg on his face, Governor Andrew Cuomo is leaping blindly aboard the speeding train of collegiate gender politics by ordering the colleges and universities within the SUNY system to adopt the “affirmative consent” rules enacted by California.  Take that, Governor Moonbeam!

To explain the need for these policies, Mr. Cuomo — who pointed out that he is the father of three girls — cited statistics on how many college women are victimized and how many do not report the assaults, and called the numbers “breathtaking.”

Grasping why “statistics” reflect whatever nonsense the advocacy group that manufactured them wants them to reflect is very hard work. Latching on to stats that justify an action is easy. Hey, if they can make them up for animal abuse, why not here?  Of course, counting non-reported events is usually a dead giveaway, because they were never reported, but as long as one closes one’s eye tight enough, anything can begin not to seem as mind-numbingly stupid as it really is.

So what has Governor ordered? Continue reading

The Fragile Remedy of Suppression

Remember how cool it was when the Third Circuit ruled in United States v. Katzin that GPS tracking by law enforcement required a warrant?  Good times. Heady days. Was it possible that Justice Alito’s old stomping grounds would be the court that righted the craziness?  It surely looked that way.

But the court did one thing more, one thing that was critical to its ruling in light of the Supreme Court’s ill-conceived Herring decision.  The panel held that the use of GPS tracking wasn’t saved by the good faith exception under the Supremes’ similarly ill-conceived Davis decisionOrin Kerr explains:

The Third Circuit disagrees, concluding that officers should know that GPS devices are so different from beepers that the beeper cases can’t apply to GPS surveillance:

As our foregoing discussion suggests: we disagree with this position. The difference between beepers and GPS trackers is one of kind, not degree. Any time technology shifts in this way, courts should expect that law enforcement will tread lightly and will refrain from reasoning by (potentially ill-fitting) analogy.

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Jenny Miranda Keeps Trying (Update From Jenny)

I deleted the first email received from PR Executive Consultant Jenny Miranda. But the next week, another came. I replied to this one that she should stop sending me emails. But the next week, another came. I replied more strongly this time, suggesting that her efforts on behalf of her client were going to backfire if she didn’t stop.

Jenny wrote me back this time, telling me that my email “wasn’t very nice.”

I will remove you from my list. However, your comments weren’t very nice. If you don’t want emails from PR reps, please contact Gorkana to get yourself removed from their database.

Despite your insult, I hope you have a lovely day and find happiness.

Continue reading