Author Archives: SHG

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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Running On Empty

To most of the nation, the most damning thing about Freddie Gray’s conduct wasn’t that he possessed a knife, as so many other people do.  It’s that he ran.  According to Lt. Brian Rice, Gray made eye-contact with him, then took off.  While people can understand carrying a knife, they can’t understand flight. It seems so, so, wrong.

But then, they may have never enjoyed the experience of the arbitrary interaction, where a guy gets thrown to the ground, searched and, upon discovering that he’s clean, cut loose.

The law, on the other hand, sees flight as a significant factor:

In a 2000 case from Chicago, Illinois v. Wardlow, the court ruled that police officers can establish reasonable suspicion to stop and search if the person is in a high-crime area and sees the officers before fleeing.

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What If There Was No Such Thing As Bail?

A jail, but no bail?  That’s the idea promoted in this New York Times op-ed by Maya Schenwar, editor-in-chief of Truthout, and it’s really quite a breathtaking idea.  Before getting to her point, it bears noting that Schenwar isn’t a lawyer, and demonstrates little grasp of the depth or complexity of the moving pieces of the legal system.

This makes her op-ed easy to pick apart on many levels, as she glosses over the details of the existing system with shallow observations like this:

Last month, Mayor Bill de Blasio of New York unveiled a plan to decrease the population of the Rikers Island jail complex by reducing the backlog of cases in state courts. About 85 percent of those at Rikers haven’t been convicted of any offense; they’re just awaiting trial, sometimes for as long as hundreds of days.

Mayor de Blasio’s plan is a positive step. Yet it ignores a deeper question: Why are so many people — particularly poor people of color — in jail awaiting trial in the first place?

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That Riley Moment

When Jim Tyre sent me the decision in United States v. Kim, hot off the presses, I shrugged it off. There it was, the outlier district court decision that ran contrary to every bad decision ever written about computer searches at the border.  That the border is a Constitution-free zone is beyond well-established, even though courts have completely forgotten why that was the case and have usurped their authority to protect our borders to indulge in a free search just because they can.

But that’s the law  It shouldn’t be, but it is.

So when DC District Court Judge Amy Jackson decided to revisit every border search decision ever and, dear judge that she is, explain why it’s all malarkey, you had to admire her pluck and dedication to reason over precedent.

That said, it was only a district court decision. Until a Circuit backed her up, a proposition that seemed pretty distant given the disruption to border search law it would cause, it wasn’t cause to break out the champagne.  I’ve wasted too many bottles of champagne already on the excellent lower court ruling that was blown away by the bigger bench as if it was chastising a wayward child for not coloring within the lines. Continue reading

Officer Benjamin Blair: No Reason To Shoot

In contrast to the facile, often nonsensical, excuses offered to justify the needless shooting, killing, someone who fails to comply with an officer’s lawful command, Wagoner, Oklahoma Officer Benjamin Blair did something remarkable.  He didn’t shoot.  He didn’t kill.

From the Wagoner Tribune:

Blair was involved in a high-speed pursuit that turned suddenly into a wild chase through the wooded area in Gibson Station. When Blair walked up on the suspect lying facedown on the ground, he drew his weapon and told the suspect to show him his hands. Instead of complying, the suspect jumped up and took off running. Blair could have very easily squeezed off a shot as a nervous reaction, or he could have emptied his clip as the suspect ran away.

But he didn’t.

Continue reading

Untrustworthy, But Very Useful

Of all the potentially bad evidence presented at trial, a very large universe indeed, none is worse, less credible, less worthy of belief than the jailhouse snitch.  As Radley Balko notes:

The whole concept of jailhouse informants defies credulity. The very idea that people regularly confess to crimes that could put them in prison for decades or possibly even get them executed to someone they just met in a jail cell and have known for all of a few hours is and has always been preposterous. Not to mention the fact that these are people whose word prosecutors wouldn’t trust under just about any other circumstance. 

To say that prosecutors wouldn’t trust them is an understatement. These are the lowest of the low, the least credible of all, and to ask a prosecutor to believe them otherwise would bring about hysterical laughter.  Except when they bring something a prosecutor needs, at which point they magically turn into the most believable guy ever. Continue reading

Name That Vertical, The Contest

As some of you know, I have been writing posts and doing videos for my pal, Lee Pacchia, at Mimesis Law.  The idea is to create a legal news website based on substance rather than clickbait or the fluffiness that’s permeated so many other websites that make people stupider.  It will include different practice niches, and may well give the sort of people who go to the Puddle to learn how to be a lawyer a terrible headache. We can only hope, anyway.

So what’s a “vertical”?  It’s one of those cool, businessguy-type words that Lee likes to use to prove he’s not just another pretty face. In this instance, it’s going to be the criminal justice piece of Mimesis, kind of a cable channel for criminal law.  Think Velocity or Food Network, limited in scope and focused on one thing.

But it needs a name.  No, SJ can’t be the name, because it’s the name here.  Move on. Continue reading

Sharp Words (Oberlin Choir Update)

In anticipation of the presentation of Christina Hoff Sommers at Oberlin College, a gaggle of students sent a “love letter to themselves” to the college newspaper. It was, as propriety demands, preceded by a trigger warning:

Content Warning: This letter contains discussion of rape culture, online harassment, victim blaming and rape apologism/denialism.

It’s a good thing this trigger warning was included, as it distinguished this anticipatory condemnation from the brutal trauma of actually hearing words before deciding they’re worthy of condemnation. Then again, thinking is so old school, when there are feelings to be felt.

In any event, the love letter was the stuff of banal childish gender politics, of no importance beyond serving as the punchline for a joke to be named later, involving safe spaces, puppies and Play-Doh.  Except, perhaps for this one line: Continue reading

In Search of Loot

The travesty of civil asset forfeiture isn’t exactly a new issue, but when law enforcement’s objective is so flagrantly directed at seeking out random cash to  seize that it appears to everyone, save anyone on the government nipple, to be cynical theft, it can’t be ignored.  Joseph Rivers, a 22-year-old out to make a music video, found that out.

Rivers changed trains at the Amtrak station in Albuquerque, New Mexico, on April 15, with bags containing his clothes, other possessions and an envelope filled with the $16,000 in cash he had raised with the help of his family, the Albuquerque Journal reports. Agents with the Drug Enforcement Administration got on after him and began looking for people who might be trafficking drugs.

Why they say that the DEA agents were looking for people “who might be trafficking drugs” isn’t clear, but it seems likely that this comes from the official police version of events because people find it palatable to have the DEA out there looking for drug traffickers.  Continue reading

Greta’s Big But

Among the sadder things that happened when Rupert Murdoch made Fox News a thing was his taking Greta Van Susteren from us.  Once a highly-regarded criminal defense lawyer, she was replaced by a woman with a lovely nose who toed the company line.  So sad.

When Eric Wemple wrote of Greta’s views on Pamela Geller’s Garland fiasco, it came as no surprise that they would be shrouded in the “yes but” formula that has become de rigueur.  But what was not quite so anticipated was what Greta found to be the greater concern.

So Van Susteren scolded Geller for holding the cartoon contest. “My message is simple — protect our police. Do not recklessly lure them into danger and that is what happened in Garland, Texas at the Muhammad cartoon contest,” she said. “Yes, of course, there’s a First Amendment right and it’s very important, but the exercise of that right includes using good judgment.”

Many have fairly asked whether Geller’s decision to court disaster was needless stupid and provocative.  And that being a question directed at personal choices, it’s hard to argue that this was either wise or necessary.  What it was, however, was her choice, so the rest of us may well hold an opinion on whether we would have done the same thing, but we don’t get a vote. Geller gets to make her own decision, and we don’t have to like it. Continue reading

The Federal Grass Is Always Greener

No, not that kind of grass. Get a grip.  As happened in Ferguson, Missouri, Baltimore Mayor Stephanie Rawlings-Blake has called for the federal cavalry to sweep into the city and right the pattern and practice of unconstitutional abuse and discrimination.  In Ferguson, the feds issues a damning report, and we kvelled over it.  Oh, the feds are the ginchiest. So fair. So wonderful. So trustworthy. So federally.

As some correctly note, the feds consist of more than one person, one division, one agency, and so the involvement of, say, the Department of Justice’s Office of Civil Rights, where they ship all the people who believe in unicorns to keep them far away from the Office of Legal Counsel, there are voices more trustworthy than others within the humongous structure of Main Justice.

But still, what we’re seeing is an adorable belief that the federal government DoJ apparatus exists on a higher plane of trust than our local governments, and this gives rise to a phenomenon of generalized faith in them.  This translates into a belief that federal law enforcement is better than the nasty, brutish local thugs who kill black kids, and the feds have magical powers that allow them to do it better, wiser, more fairly and with the utmost integrity.  The locals suck, and so we invite the feds in because they are the epitome of the new professionalism. Continue reading