Author Archives: SHG

The Pointed Gun And Mens Rea

It was the first time a cop had been prosecuted for a homicide in Chicago in 15 years, according to Think Progress, and that was bad enough.  But what happened, a trial order of acquittal, went over the top.

Late Monday, a Cook County judge acquitted Chicago police officer Dante Servin of several homicide-related charges for the fatal shooting of an unarmed woman standing outside with some friends near his home. It was the first time in 15 years that a police officer had been charged in Chicago for a fatal shooting. And the courtroom attendees exploded in outrage as Judge Dennis Porter announced Servin was not guilty on all charges for killing 22-year-old Rekia Boyd.

But Porter’s ruling was particularly confounding because of bizarre reasoning that some legal experts are calling “incredible.”

Servin’s acquittal of involuntary manslaughter was stunning, but raised intricate issues of the mens rea distinguishing murder from manslaughter. Continue reading

Vanity, Thy Name Is Blawger

In the continuing symposium on lawprof ennui at PrawfsBlawg, Dave Hoffman adds to the academic angst with a list:

Why, I wondered, has the energy left the building?

  1. Because there are fewer fans.  This is most of it.  Prawfs started in the seven years of hiring plenty, and we’re now deep in the middle of the seven years of drought.  There are many fewer young law professors than there were in 2005, and those few that remain are well-advised to keep their heads down and do what’s necessary to survive increasingly difficult internal climbs to tenure. Prawfs’ and like blogs’ rise  had many parents, but a hiring glut has to take place of pride.
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Leaving Nothing To The Imagination

You never heard about this case. You should have, but you didn’t, and there is only one reason why: there’s no video.  Oh, video exists, and according to the lawyer for the dead guy, Christopher Slusser, it “leaves nothing to the imagination.” But it hasn’t been disclosed.

Without the video, the killing of 59-year-old David Kassick by Hummelstown Police Officer Lisa Mearkle, who put two bullets in his back, fades to obscurity.

Police said Mearkle attempted to stop Kassick’s vehicle for expired inspection and emissions stickers on Feb. 2, after which he drove away, reaching high speeds. When he did stop he got out and ran, and Mearkle was able to catch up to him.

She shocked him four times with a stun gun, equipped with a video camera, before shooting him twice in the back, four seconds apart, as he lay face down, police said. Perry argues she acted in self-defense, concerned he was reaching into his waist while she demanded he show his hands.

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Rodriguez’s Right Decision, And Now What?

Of course, as with every defense win in Fourth Amendment law, some will criticize the opinion for not going far enough. 

— Orin Kerr, Volokh Conspiracy, April 21, 2015

It’s a sad day when a law professor grows so cynical that he anticipates complaints with a Supreme Court win for the Constitution, and yet Rodriguez v. United States is, without a doubt, a “defense win.”  The problem, because there always is a problem, is that the Court’s answer to one question reveals the difference between law in theory and law on the street.

The Court held that the “core mission” of a traffic stop is pretty much what one would expect it to be:

Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. See Delaware v. Prouse, 440 U. S. 648, 658–660 (1979). See also 4 W. LaFave, Search and Seizure §9.3(c), pp. 507–517 (5th ed. 2012). These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly. 

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The Easy Yet Impossible Solution To Junk Science (Update)

In the New York Times, Eric Lander, founding director of the Broad Institute of MIT and Harvard, provides a ringing condemnation of the use of forensic science in the courtroom.

As miscarriages of justice piled up, it became essential to understand precisely how the criminal justice system made such mistakes and how to prevent them. Troublingly, about a quarter of the cases examined by the Innocence Project (on whose board I now serve) involved forensic scientists who had erroneously claimed to identify defendants with near-certainty by matching hair samples, fibers, shoe prints or bite marks.

There were clearly fundamental problems with forensic science. A 2009 report by the National Research Council, an arm of the National Academies, found that apart from DNA testing, no forensic method had been rigorously shown to consistently and reliably demonstrate a connection between evidence and a specific person.

Or to put it more bluntly, we’ve rested our faith in crap, scientifically unproven and unjustifiable, because people dressed in expert suits took the witness stand, offered jargonized mumbo-jumbo in official sounding tones, and promised that they were right, because science. Continue reading

Driver Killed For Cop’s Bad Choice

 Boone County, Kentucky, Deputy Tyler Brockman was called to a party because people were having too much fun and must be stopped.  Brockman did his duty, and upon his arrival, a field party broke up and people began leaving.

Oh no. Not good enough. Brockman decided it was his job to stop the cars as they left to check if the party-goers were drunk.  No probable cause. No checkpoint, Just Brockman, because he is the paragon of sobriety.

Out drove 19-year-old Samantha Ramsey.  Brockman was not about to let that happen.

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The Tyranny of Deferred Prosecution Agreements

Granted, most people aren’t particularly sympathetic to the problem of fabulously profitable multinational institutions being prosecuted. If anything, many demand to know why financial institutions haven’t been brought to their knees following the revelations of the housing meltdown, when it became obvious they were selling repackaged underwater mortgages as prime investments.  Where were the corporate heads that were supposed to roll?

At PrawfsBlawg, an explanation is offered:

To paraphrase, the problem is that many regulated firms are effectively judgment proof.  We may threaten sanctions against accounting firms that commit fraud, or chemical firms that dump waste into the river, or banks that swindle their counter-parties.  The problem is that the typical criminal sanction is too big, since indictment triggers a run on the firm by its employees, trading partners, and (eventually) creditors.  Prosecutors have therefore basically stopped indicting, leading to the rise of deferred-prosecution agreements.

Brings a tear to your eye, right?  This variation on too big to fail, too big to prosecute, reveals a political decision made in the basement of Main Justice that they don’t want another Arthur Andersen, an indictment of a huge firm that leads to its swift demise, the loss of thousand of jobs, huge disruption and loss of confidence in the stability of institutions.  If Arthur Andersen can collapse from an indictment, any big business could. Continue reading

Save Nevada’s Anti-SLAPP Law

Shamelessly stolen, in toto, from Marco Randazza.  And New York, when the hell do you plan to enact an anti-SLAPP law?

Nevada Anti-SLAPP Law under attack

Anti-SLAPP statutes are there so that free expression doesn’t come along with a side helping of bankruptcy, if your speech offends the wrong person. They don’t protect you from liability for real defamation, but they do protect you from being dragged through three years of litigation over a claim that never should have been brought in the first place.

You see, that’s how the bastards win. If they don’t like your political speech, or even your mild consumer review, they file a lawsuit against you. You try and file a motion to dismiss, but as long as they lay out the elements of the claim in the complaint, that doesn’t usually work. Next, discovery. Motions. Hearings. Thousands of dollars later, you “win.” But, you’re now wondering “if this is what winning feels like…” Continue reading

Can’t Take A Joke

TRIGGER WARNING:  There’s something in here to offend everyone.

Q: What do you call 100 lawyers at the bottom of the ocean?

A: A good start.

Does that bother you. Most lawyers will say no, at least to the extent that they aren’t bothered by the fact that they’ve heard the joke a thousand times already. But there will be some who are offended, who believe that this diminishes our worth.  Bullshit. It’s a joke.

What if we replaced “lawyers” in the joke with, say, feminists or, God forbid, lesbians? Does it change from funny to unacceptable, outrageous?  The answer likely turns on your sensibilities.  If you feel deeply about the target of the joke, the joke becomes unfunny.

You can explain your reaction by wrapping it up in rhetoric about historical prejudice, insensitivity, anecdotes of horribles that happened to a suspect class, or just string together empty, meaningless words that convey some vague impression of butthurt, but ultimately it comes down to one undeniable point: you can’t take a joke. Continue reading

Breaking The Calm Of The Hallways*

They may be loud and boisterous on the streets, but in the hallways of the courthouse, they speak mostly in hushed tones.  Even tough street kids know better than to get too loud, attract too much attention, in the one place where their bluster won’t pay.  Courthouse hallways tend to be unnaturally calm.

When 22-year-old Anthony Jones was tossed out of a Philly courtroom for wearing a hat, he broke that calm.

The incident started about 11 a.m. last Friday, when a court crier in Courtroom 706 ordered Jones to remove his hat and then booted him out when he became upset, Sen said.

In the hallway, Jones yelled and cursed, and Sen hurried to defuse things, Hoy and Sen said. (Sen didn’t represent Jones, but her employer, the Defender Association of Philadelphia, did.)

Paula Sen was a public defender, who happened to be there as Jones got loud and angry.  Richard Hoy was an old-time lawyer, sitting on a hallway bench, watching the drama unfold.

Of Jones, Hoy said: “There was obviously something [mentally] wrong with him. But [the] PD [public defender] had him 75 percent calmed down.”

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When The Thrill Is Gone

PrawfsBlawg is ten years old.  It was already going strong when SJ was born, led by a law professor named Dan Markel who was murdered last year.  Even though I disagreed with Dan about many things, I respected him, and wrote about Dan’s ideas many times here.  But Prawfs lived on, and now it’s ten.

Most of you don’t read Prawfs.  It’s an academic blog, bogged down by the language, concerns and interests that are unique to the legal academy.  It’s not always thrilling, particularly for the non-lawyers, and it was often disturbing when the prawfs navel gazed in the weird vacuum of ivy towered self-indulgence.  It was especially frustrating when prawfs wrote about the value of their scholarship, or how the education of law students would die a brutal, painful death if law school wasn’t all about their law review articles and brilliant theory.

In the early days of SJ, I sought to bridge the gap between academic blogs and the practical blawgosphere, a phrase coined by Mark Bennett in a post that has apparently been lost to the ages.  At another law prof blog, Concurring Opinions, Dave Hoffman took a stroll on this bridge, but he never quite reached the other side.  Now, years later, we rarely see any cross-over. What once held the promise of synergy is now gone.

At the time, I tried desperately (likely too desperately) to chide the prawfs into engaging with practicing lawyers on real legal issues in real-life terms, rather than the sanitized theories that held the occasional kernel of truth expressed in words that were nearly incomprehensible to the practitioner’s ear.  Conflict erupted.  Lawprofs found it unbearable to have their babies called ugly.  Lawyers were incapable of using the mitigated language of the academy, murdering a thousand words to say nothing, and being far more concerned that no feelings were hurt than any ideas were clearly expressed. Continue reading