Author Archives: SHG

Brooklyn Law’s New Game

The New York Times business section profiles Brooklyn Law School, as Dean Nicholas Allard takes the bold move of refusing to play the U.S News & World Reports ratings game.

Brooklyn will hold tuition at its current level — $1,800 a credit, or $53,850 a year — for the class entering this fall. Next year, it will introduce an across-the-board 15 percent cut in tuition. It is also reducing some kinds of merit aid, increasing need-based aid and offering a curriculum that allows some students to graduate in two years rather than the standard three. “It’s still expensive, and I wish we could do more,” Mr. Allard said.

While holding tuition at current levels isn’t exactly radical (or inexpensive), the cut in merit aid is the kicker. Continue reading

Everything Old Is New Again

Walter Olson shreds the conduct of the FBI in seizing the antiquities collection of 91-year-old Don Miller in Indiana.

FBI agents Wednesday seized “thousands” of cultural artifacts, including American Indian items, from the private collection of a 91-year-old man who had acquired them over the past eight decades.

The aim of the investigation is to determine what each artifact is, where it came from and how Miller obtained it, Jones said, to determine whether some of the items might be illegal to possess privately.

Jones acknowledged that Miller might have acquired some of the items before the passage of U.S. laws or treaties prohibited their sale or purchase.

What is happening to Miller reflects a conundrum facing anyone who had the misfortune of getting caught in the net of modernity, the effort to revisit the rules in light of current sensibilities by demanding that things that happened in the past somehow match the rules of the day. Continue reading

But For Video: Your Lying Eyes Edition

Between the rhetorical “search for the truth” stuff that’s thrown up when convenient, and the burden of proof stuff that’s hauled out for the same reason, people would likely believe that a video that shows police testimony is false less than accurate would be good enough to put an end to a phony reason to stop a car.

Not true, said the Indiana Supreme Court in Robinson v. Indiana.  There, the trial court held a suppression hearing for the stop of defendant’s car, which was pulled over by Deputy Casey Claeys of the Elkhart County Sheriff’s Department.

Deputy Claeys later testified he saw the vehicle “drive off the right side, which was the south side of the road, twice.” Immediately after the second incident, he turned on his vehicle camera and initiated a traffic stop for “unsafe lane movement.” The camera, once activated, retroactively records the previous thirty seconds. Continue reading

DA Kathleen Rice: Shooting The Victim In The Head Justified

When Nassau County police officer Nikolas Budimlic decided that the best idea was to individually charge into a house where a gunman was holding people hostage, there were couple of possible outcomes. The first was that he would be a hero, get a medal and have a statue of him erected.  The second was that a lovely young woman, a Hofstra student, would lie dead before he was done, and the machinery of the state would crank into gear to shift the blame.

The odds were against Budimlic’s getting a statue.

Immediately after the death of Andrea Rebello from a bullet to the head, the gunman was blamed. Then it turned out that the “gunman” was Budimlic.  The police union then rushed to its member’s aid, explaining how it wasn’t the cop’s fault for shooting Rebello in the head, because criminals.

Then came the victim blaming, speculation about drugs in the house and how maybe Rebello was looking for Mr. Goodbar so that Budimlic’s bullet to the head wasn’t really a big deal. Continue reading

Evil In Albuquerque

Most people would be inclined to believe that the training regimen for police officers would be the subject of great oversight.  Perhaps a rigorous course of study developed by the best minds so that the public will receive the best service.  At the very least, it would be more than one guy’s idea of how a bunch of other guys with guns should behave.

Not in Albuquerque, which might answer the concern of former cop turned prof at John Jay College of coppery and shoe repair, Peter Moskos, asked after viewing the videos of the execution of James Boyd.

I think this was a bad shooting.

But what really worries me is that perhaps the officers performed exactly as trained. If so, we need to change police training (and not make scapegoats of the officers).

While Moskos holds cops in such low esteem that any bit of murderous stupidity can be sloughed off elsewhere, Continue reading

Need To Know Basis Only

Many years ago, I shared offices with a couple of guys, Paul Goldberger and Larry Dubin.  They were kinda big deals, and big deals got big fees. Their firm, Goldberger & Dubin, got big fees. Big enough that when paid in cash, Form 8300 was required by the IRS, and the form required, inter alia, the identity of the payor.

This was a problem, so they refused. The Second Circuit was unsympathetic.

Section 6050-I stops far short of the forfeiture statutes that were at issue in Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989) and United States v. Monsanto, 491 U.S. 600 (1989), in which the preclusion of the defendants from using seized assets to pay their attorneys was held not to violate the Sixth Amendment. Section 6050-I does not preclude would-be clients from using their own funds to hire whomever they choose. Continue reading

Time I’ll Never Get Back

At Tempe Criminal Defense, Matt Brown offers an amusing anecdote about how a court clerk at the Mesa Municipal Court acts as if he didn’t exist.

The court called us at 2:25 p.m. and left a message about getting our position on the state’s motion to continue trial.  That’s right, the state’s motion.  Not ours.  The motion the state didn’t bother faxing us until 3:45 p.m.

I called the court back sometime shortly before 5:00 p.m. and spoke with a very pleasant lady.  She wanted to know my position on the state’s motion.  I told her we didn’t oppose it and had in fact filed our own motion.  She asked for me to wait a moment and came back a bit later.

“Oh my goodness, so you did!” Continue reading

And They Care Why?

On the surface, it probably wouldn’t surprise anyone to learn that there are law enforcement groups that are trying to subvert bipartisan support for the Smarter Sentencing Act.  Sure, the hardcore and lazy federal prosecutors have come out against it, as it could make them have to work for the notches on their guns, but that was to be expected.

Yet, as the HuffPo explains, there is a second level of organized law enforcement working in the shadows to try to blunt the edge of reform of the mandatory minimums that allow prosecutors to own the system:

Several organizations representing state and local law enforcement are quietly trying to kill a bipartisan bill that would roll back tough mandatory sentences for people convicted of federal drug offenses under legislation passed during the height of America’s drug war three decades ago. Continue reading

Money Talks

By 4-1-4 vote, the Supreme Court held that campaign finance limitations were an unconstitutional restraint on the 1st Amendment in McCutcheon v. FEC.  The inevitable ensued.  The TL;dr version of the opinion reads:

The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute.Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. See, e.g., Buckley v. Valeo, 424 U. S. 1, 26–27. It may not, however, regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others. See, e.g., Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U. S. ___, ___.

The New York Times editorial castigating the opinion offered the dissent,

The Supreme Court on Wednesday continued its crusade to knock down all barriers to the distorting power of money on American elections. Continue reading

Welcome to #LMA14!

Alas, I’m not in Orlando, the city born of fantasy in a bipolar state whose claim to fame is warmth and swamps, and so I won’t be able to share in the glow of finally being among those who share low self-esteem and the need to surround themselves with others who pray they can persuade the fools of the legal profession to loosen their mighty grip on their few remaining dollars.  But I’m with you in spirit and want to offer my best wishes for a fabulous few days.

For three days, you can call yourselves professionals.  Not in the sense of having survived a course of education designed to provide you with knowledge and ability to perform a task, nor in the sense of having a code of ethics, the violation of which will send you to the pokey and prevent your bulk emails offering your services to the unsuspecting, or even in the sense that you’ve been tested and found sufficiently competent to take responsibility for others.  No, not that kind of professional. The kind of professional that allows you to believe, against all odds, reason and the laws of physics, that you are worthy of respect. Continue reading

Silk Road Shows The Flaws Of The Laws (Update)

For those criminal defense lawyers whose attitude toward pre-trial motions is to make sure they change all the names before submitting their pro forma papers, take the time out of your empty life to read the memorandum in support filed by Josh Dratel on behalf of his client, Ross Ulbricht.

Ulbricht was the man behind Silk Road, alleged to be

an “underground website” allegedly “designed to enable users across the world to buy and sell illegal drugs and other illicit goods and services anonymously and outside the reach of law enforcement.”

It’s terribly evil, because all the reports about it when the crypto-challenged learned of its existence from the media following Ulbricht’s arrest said so.  A kinder description would be the eBay for those with mad computer skilz outside the control of government. Continue reading

Because Fresno Hates Pot

California may have been an early adopter of medical marijuana, but the nice folks who have their hands on the wheel in Fresno don’t see what that has to do with them.  While the state law permits the growth of medical marijuana, it also allowed localities to regulate its cultivation, which is a hole big enough to drive a Mack truck through.  Fresno figured it out.

Via KFSN-TV in Fresno:

Fresno narcotics officers have been called out to more than a dozen properties in the past two days, where marijuana was growing in backyards, shanty’s or garage enclosures. Complaints from neighbors have come from all over town, from McKinley and Cedar to Willow and Nees.

Narcotics Detective Mike Brogdon says the complaints multiplied. Continue reading

Money Back Guarantee

Criminal law tends to draw an odd assortment of interested folks, which is reflected in the comments to posts here which range from brilliant and incisive to utterly idiotic.  As regular readers know, I try to weed out the worst comments, the ones I feel are dangerously wrong or misguided (remember, this is a law blog, and non-lawyers may read something and believe they can rely on its accuracy, to their grave detriment) or sufficiently offensive and annoying that I decide to make it disappear.

Some think this is part of what makes SJ work. Some do not.  Some do except when they are on the receiving end of a spanking, where I go from being their hero to the zero in a blink.  Volenti non fit injuria. except for them. Continue reading

It Smells or It Stinks

It may not be among the most common reasons for a car stop, but it happens often enough to raise again.  Officers driving with the windows of their cruiser down, smell marijuana and, upon that basis, stop a car.  It’s been raised innumerable times around the country, often being the subject of ridicule at the ridiculousness of the claim.

But other times, the judge does what Norfolk Circuit Judge Everett Martin did:

Officer Robert Frenier testified he was driving in the 3700 block of E. Princess Anne Road on Dec. 7 when he smelled marijuana through his patrol car’s vents. He said he and two other officers in his vehicle believed the smell was coming from the Dodge Neon in front of them.

“I don’t find it inherently incredible,” Martin said before finding the stop was legal. “I find it quite believable.” Continue reading

The Culture of Doing Nothing

Much as I thought I was done with discussion stemming from the “dirty old man” post, I was sent a comment posted at Nita Farahanny’s flavor which made me very sad, and compels me to discuss it one more (and hopefully last) time.

By a commenter who calls himself Nathan_M (and unfortunately, the WaPo lacks a means to link directly to a comment):

Wow, Scott Greenfield’s comment to the woman who was sexually assaulted at professional events is appalling.

If a client wanted advice on how to deal with a situation like that any competent lawyer  would provide something very similar to Kateality’s [sic] analysis. She has essentially nothing to gain and potentially a lot to lose form making a public allegation, which is admittedly unfair but we deal with the world as it is and not as it ought to be. Continue reading

The Missing Video Presumption

Radley Balko at WaPo provides us with yet another tale of monumental and pointless harm at the hands of a cop whose need for mindless control exceeded anything resembling human thought.

Police critic Will Grigg stitches together a series of news stories to construct an infuriating narrative from Utah.

When Mark Byrge had a minor traffic accident on a street in American Fork, Utah, he did the “responsible” thing by reporting the incident to the police. He has never stopped paying for that mistake.

Within a few minutes of receiving Mark’s call, a pair of American Fork cops arrived to document the damage to Byrge’s delivery truck from a collision with a tree branch that protruded into the street. Mark was cooperative – and he put up no resistance when the lead officer, Andres Gianfelice, placed him under arrest for an outstanding traffic ticket (as well as citing him for not providing proof of insurance).

That Gianfelice felt it necessary to arrest the guy who was doing right was bad enough. What follows, however, is where it turns into mindless insanity: Continue reading

The Disturbing Rubric Of The Dignity Rationale

In a New York Times op-ed. Yale lawprof Bruce Ackerman argues that “dignity is a constitutional principle.”  It’s a provocative stand-alone notion, as it’s hard to argue against the notion of “dignity.”  Which is also why arguments so artfully phrased are so dangerous.

What is dignity? The dictionary definition says it’s “the state or quality of being worthy of honor or respect,” two more words to which we cling dear, and damn fine words at that.  Would it be controversial to say that all human beings are worthy of dignity?  Of course not.

And yet, what about pedophiles?  Well, not them. Or revenge porn purveyors?  Not them either. Murderers?  Certainly not them. But then, they’re all human beings.  But they’re human and worthy of dignity, right?  Well, some pigs are more worthy than others.

Ackerman’s op-ed begins with gay marriage, and goes through the rhetoric of racial equality, and then circles back: Continue reading

Why Sterling Candlesticks?

This post has absolutely nothing to do with law, police, courts or décolletage. If that’s your only interest here, run away. Fly like the wind. There’s nothing here for you.

The wedding of the son of a dear friend of Dr. SJ and I is coming, and so I set out to find our wedding gift for him.  We’ve known him since birth, and he’s a wonderful young man.  His parents are great people, with whom we’ve shared good times and bad.  When it came time to pick out a gift, there was no question what to get.  Antique sterling silver candlesticks.

Huh?  Is the groom into sterling candlesticks? Continue reading

A Poor Choice of Dirty Old Words

After the internet came down like a load of bricks on my senior Judge buddy, Rich Kopf, an amazing duality emerged.  He used the phrase “dirty old man” to describe himself, and it became a litmus test of generational understanding.  This became clear when two of the WaPo Conspirators, Nita Farahanny and the Chief Conspirator himself, Eugene Volokh, address the issue.

Aside:  This is still not a post about what to wear, whether male or female, or whether Judge Kopf is a sexist pig deserving of vitriol.  This is a post about the language used to convey a message to an audience on the interwebz, and how it’s perceived based on generational differences.

Duke lawprof Farahanny began by recalling her own experiences:

They remind me of the many times that students have commented on dresses I have worn to teach in (but not their male professors), and the time I appeared before a panel of federal judges for a moot court argument and was chastised for wearing a pantsuit. Continue reading

A Guy Has To Earn A Living, Right?

If you squint a bit, the notion of citizen legislators seems so populist chic. After all, that makes them regular folk like us, and since we’re just the ginchiest, shouldn’t they be too? Except the down side of the concept is that part-time legislators get paid part-time salaries, and need to work for a living if they’re going to get their kids that shiny new iPad that all the other kids have. Would you really want their children to be denied?

So Mark J. Grisanti, R-Buffalo, got himself a pretty good gig for a lawyer, that likely went a long way toward supplementing his meager state salary.  From the Buffalo News:

So when police raided the house Feb. 27 and confiscated $50,000 worth of heroin and another $70,000 in cash, neighbors celebrated what they hoped was removal of an entire gang of bad guys. Continue reading