Author Archives: SHG

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

A Lie Too Far

Before the Supreme Court’s decision in Whren, police were constrained to lie about the reason for stopping a car they wanted to search for drugs.  But the Court broke through the floor, allowing police to be honest about their dishonesty.  When it comes to interrogation, the law has long been clear that lying is a very effective tool of law enforcement. The law protects lies.

This shocks many people. Aren’t the police supposed to be paragons of virtue, the embodiment of truth, justice and the American way?  Well, one out of three ain’t bad.  The reality is that it’s a lot easier to get people, in all senses of the word “get,” with a well-formed lie than it is with hard work and conformance to the rule of law.  If we just tweak the rule of law to meet the efficacy of lying, combined with trusting that our police would never take advantage of it, problem solved. Continue reading

Dirty Lawyer, Dirty Judge, Dirty Men

Even though we’ve never shared a beer, I kinda feel as if District of Nebraska Senior Judge Richard Kopf and I have become friends.  Sure, it’s just on the internet, but that’s how long distance friendships happen these days. And so when I read his post the other day, On being a dirty old man and how young women lawyers dress, I sucked in some wind and pondered what, if anything, I should do.

I thought about emailing Judge Kopf and telling him, “Dear Judge, are you fucking nuts? Take that down now. NOW!!!.” because I knew what would come.  But then, who am I to tell a judge what to do?  I twitted about it, which reflected my confusion:

RT @JudgeKopf: On being a dirty old man and how young women lawyers dress http://bit.ly/1dK0y1H  <I can’t even… Continue reading

Disrupting Google, SWAT Teams and Tanks Edition

At the WaPo Conspiracy, Orin Kerr has been deconstructing an order by D.C. Magistrate Judge John Facciola for the search and seizure of email and social media accounts that, after concluding there was no probable cause, refused a warrant because he held none was needed.  Jeff Gamso explained why that was disturbing.

Orin has continued dissecting Mag. Facciola’s order, and come down to a very curious “strong suggestion” about how a warrant for emails should be executed:

[T]his Court can see no reasonable alternative other than to require the provider of an electronic communications service to perform the searches. Under the government’s demand that it be given everything, the government leaves the Court with only two options: deny the warrants — thus depriving the government of needed information — or issue warrants that are repugnant to the Fourth Amendment. Neither is viable.

In other words, rather than let the government rummage through a customer’s account at Google, where his gmail emails are held on a server down the hall from the juice bar, make Google do it.  Continue reading

But For Video: An Execution in Albuquerque

It’s not that 38-year-old James M. Boyd was the sort of fellow you would want to invite to dinner. He was homeless, perhaps mentally ill, and an illegal sleeper in the foothills outside Albuquerque.  But that’s not a reason for the cops to execute him.  And the word execution is not hyperbole.

There was a long stand-off, variously described as 3 to 4 hours, preceding the video. And the video shows how it was about to end peaceably, the heinous offense of a homeless man camping where the law can’t tolerate it.  Maybe this is how they roll in New Mexico, given that they have a lot of open space and can’t have people illegally sleeping in it when they have nowhere else to sleep. Whatever. Continue reading

The Danger of Posner’s Article III Fashion Show

Jurors are instructed not to visit the scene of a crime, or conduct any investigation on their own.  They’re told that they may not consider any evidence not presented to them in court.  And it’s presumed that jurors follow these instructions. When they don’t, they may be dismissed from the jury or, should matters undermine the integrity of the proceeding, bust the trial.

But then, Richard Posner isn’t a juror, but a judge on the 7th Circuit Court of Appeals. He doesn’t have to follow no stinkin’ rules.  Josh Blackman posts about what he calls Posner’s “fashion show” in his consideration of the appeal in Mitchell v. JCG IndustriesIt begins with a rather pedestrian problem, that the court was confronted with two different factual claims, pretty much like every other trial.

The district judge did not opine on how long the donning and doffing take, a question difficult to answer in the usual way of judicial fact determination. The plaintiffs would testi‐ fy that it takes 10 to 15 minutes, the employer that it takes only 2 to 3 minutes, and how would a judge or jury know who was telling the truth? Continue reading

Even The Guiltiest

According to the Lockport Union-Sun & Journal, Matthew Murphy was “[b]itten by the ‘prosecutorial bug’” when he got a job as an assistant United States attorney.

“I liked it. You feel like you’re helping people there,” Murphy said. “You can see in a tangible way that you’re helping people when you serve as a prosecutor.”

After a brief stint on the dark side, he was elected Niagara County District Attorney, and served in that office for 16 years, longer than anyone else.  But time came when he began to feel old, and needed a new challenge. So Matthew J. Murphy III became a judge.

What’s that sound?  It’s the assumption that anyone who was weaned on ham sandwiches Continue reading

Why Gleeson Is Wrong (Or The Adoration Of The Fearful)

In United States v. Diaz, EDNY Judge John Gleeson ripped the heart out of the beloved United States Sentencing Guidelines approach to drug sentences.

The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.

Unsurprisingly, defendants have been raising Judge Gleeson’s argument since for the proposition that courts should categorically reject the drug guidelines and depart downward. Vastly downward, as far as 18 U.S.C. §3553(a) will take them.

At the WaPo Conspiracy, former federal judge cum victim’s rights advocate, Paul Cassell, Continue reading

TSA’s Billion Dollar Scam

The New York Times reports that the Government Accountability Office has taken issue with the Transportation Safety Administration for squandering $1 billion on voodoo.

Like the rest of us, airport security screeners like to think they can read body language. The Transportation Security Administration has spent some $1 billion training thousands of “behavior detection officers” to look for facial expressions and other nonverbal clues that would identify terrorists.

But critics say there’s no evidence that these efforts have stopped a single terrorist or accomplished much beyond inconveniencing tens of thousands of passengers a year. The T.S.A. seems to have fallen for a classic form of self-deception: the belief that you can read liars’ minds by watching their bodies.

A ridiculous waste of money? Don’t be so naïve. John Pistole, Continue reading

Trolled By The Big Soapbox

My pal, Venkat Balasubramani, twitted me a link to an article that was on a subject that interested me, disruption and non-lawyer ownership of law firms.  It was written by Sarah Reed, who identifies herself as the general counsel of a venture capital firm, CRV, which would give it some superficial credibility.  But more importantly, it appeared in Techcrunch.

As one commenter said:

She is actually a lawyer…

Her post suffered from two fundamental flaws. First, it was a rehash of ideas that were fresh and vibrant five years ago. Second, the thrust of her article is that the only really disruptive notion in law is non-lawyer ownership, which just happens to align perfectly with the interests of CRV, thus allowing venture capital to grab a piece of the law market.  She neglected to mention any self-interest in her post. Continue reading