Author Archives: SHG

When Confidential Meets The Crime-Fraud Exception And Conflict

Much interest has been raised by the intersection of Donald Trump’s “complaint” about United States District Judge Gonzalo Curiel’s “bias,” and the efficacy of seeking the judge’s recusal not because there is any legitimacy to the bias argument itself, but that Trump’s making a stink about Judge Curiel’s heritage and associations creates a new level of antagonism.  This, of course, gives rise to no legal basis to seek recusal.

There are two points to be made: first, that behaving like a jerk (whether you think Trump was racist or had a legit beef) cannot give rise to demanding recusal based upon the jerk behavior. Second, that there may well be actual antagonism as a result of such behavior, such that the judge is, in fact, biased against a litigant, doesn’t change the fact that it would be legally untenable to allow this to serve as a basis for recusal.  After all, if that were allowed, anybody could create a rift with a judge they didn’t want by calling the judge a name, thus accomplishing by being offensive that which they couldn’t accomplish otherwise.

That the judge might now really hate the litigant because of his actions has nothing to do with it.  And that’s how legal doctrine works, as it should.

So why then is it entirely different when the government seeks to separate a defendant from his lawyer?  Say hi to the Curcio hearing, which was held after United States Attorney for the Southern District of New York, Preet Bharara, prevailed in compelling two defense lawyers to appear before a grand jury to reveal their client’s confidences. Continue reading

ERAD, Because It’s Not Just About The Cash (Update)

What are the chances Oklahoma, of all places, would be on the cutting edge of high tech? Yet, when it comes to glomming money, they’re on it. Like flies on shit.

The Oklahoma Department of Public Safety has purchased Electronic Recovery and Access to Data machines for installation in Oklahoma Highway Patrol and Oklahoma City police cruisers, according to an Oklahoma Watch report published Tuesday. The device tells officers the balance of prepaid debit cards and gift cards, and allows them to seize the money if they determine it’s suspicious. ERAD readers also can provide limited information about pretty much any card with a magnetic strip, including bank debit cards and credit cards.

This explanation is slightly flawed, which is understandable given its source. You see, ERAD enables cops to seize money.  Whether they “determine it’s suspicious” or not is spin, and even as spin goes, it’s wrong. Continue reading

A Mother’s Help At Lynn University

There are rapes. And then there’s, well, not rape.  Just as one doesn’t prove the other, it cuts both ways. And the finding against a male student at Lynn University was the sort of thing that gives rise to the core concerns that colleges have no business getting into the Title IX rape business.

The impetus for the accusation wasn’t that the female student thought she was raped, but that she was pushed into making the accusation. According to the suit filed by the male student, she went to the Boca Raton police.

The suit says that Boca Raton Police found that Doe and his accuser had consensual sex at a dorm party with alcohol last fall, and called her belated rape claim “unfounded.”

Though she filed the rape claim against Doe with Lynn’s Campus Security office the day after their liaison, in a video-recorded interview with female detectives at the police station, the accuser never claimed he had raped her, according to Doe. The police report says she told them her friends and parents wanted her to accuse Doe.

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Brock Turner’s Too Good Friend (Update)

Contrary to the simplistic belief of many, criminal defense lawyers don’t argue for the best possible sentence because they believe that horrendous crimes deserve as little punishment as possible, but because that’s our duty to our client. Ken White explains why at Fault Lines. We expect, hope, to get the lowest possible sentence under the circumstances.

Sometimes it exceeds our wildest imagination. The six month sentence imposed by Judge Aaron Persky on rapist Brock Turner, the Stanford swimmer, was shocking. That his father wrote a tone deaf letter to the judge about his “steep price for 20 minutes of action” is outrageous, but unsurprising. After all, it’s a parent’s job to support his child. That the victim wrote an eloquent impact statement that moved everyone except the judge is beyond comprehension.

That the judge imposed such an absurdly insignificant sentence is hard to explain. The prosecution asked for six years. Paul Cassell would have given him 97 to 121 months. Bill Otis wants to give the judge life plus cancer for such an “unserious” sentence and argues that this proves the need for mandatory minimums.

There are a great many agendas wrapped up in Turner’s sentence, from the contention that men don’t take rape seriously to white privilege, and the need to remove overly lenient judges, putting the fear of recall into them lest they not match popular cries for harshness. The sentence in this case may not prove anything beyond one case, but it surely feeds every one of these arguments, and more. Continue reading

Silly Rabbit, Bathrooms Are For Kids

The discussion is all about transgender bathrooms, but it was never just about bathrooms. High school freshman sprinter Alia Bales probably doesn’t have any problem with Haines High School senior, Nattaphon Wangyot, being transgender, but she does have a problem with competing against a biological male.

In what is believed to be a first for Alaska, a transgender athlete competed in an individual event at a high school championship Friday at the state track and field meet at Dimond Alumni Field in Anchorage. Wangyot was among hundreds of students competing on the first day of the championships.

You can utter the word equality all you want, but Ice runs faster than Alia because Ice is a male who identifies as a female, and Alia is a female who doesn’t have the benefit of a male’s anatomy.  And because equality, much as it’s a lovely word, doesn’t work the way we would like it to work just because that’s how we would like it to work. Continue reading

Legal Ethics In The Age of Feelz: What Else You Got?

Ethics is one of those words that’s susceptible to varying meanings, which makes it a great vehicle for anyone with a moderately good handle on empty rhetoric to pretend to have a grip, and to couch their personal feelz in its jargon. The American Bar Association has become ground zero for this stroll down the road to perdition.

At its mid-winter meeting, it went on a social justice roll, with resolutions that would require corporate boards to reflect diversity and inclusion, bar exam questions matched to identitarian groups (like Indian law for native American bar takers), opening law to alt-law entities to facilitate access to justice, and soon thereafter, a new laundry list of things law firms shouldn’t discriminate against, such as socioeconomic status.  Why has the ABA gotten itself embroiled in all these social justice issues? Because it can. Because it’s a captive association for deeply passionate people, particularly academics. Because JUSTICE!!!

And if there is such a thing as God Justice, and if the high priests know what’s best for society, because they’re wiser than all who have come before, why not take the blind leap from things that, arguably, are tangentially associated with law and untether legal ethics from law altogether?  Damn straight, Skippy. Continue reading

Section 230 Does Not Absolve All Sins

The scheme was absolutely horrible and disgusting, and so very internet.

In 2011, an aspiring model we’ll call Jane Doe flew from Brooklyn to South Florida to meet a man she thought was a casting agent after talking to him on a website called Model Mayhem. Instead, she met up with Lavont Flanders, a former cop, and Emerson Callum, better known as the Jamaican porn star Jah-T. After they slipped her a Xanax, the two men filmed her rape for a porn series called Miami’s Nastiest Nymphos.

Do people know any better today, after revelation of the scheme, after we know that just because something says so on the internet does not make it so? Not really. It’s hard to know what to believe when all you see are words on a screen. We love the words we want to believe. We believe what we want to believe.

Skepticism is considered an ugly trait, a negative and unpleasant perspective. Sure, we’ve come to realize that we didn’t win the lottery, aren’t related to a Nigerian prince and our email wasn’t randomly chosen by the IRS for a misspelled audit. At least some of us do, as many continue to get sucked in by absurd and obvious scams. Continue reading

The Department of Justice Catching Up

1998: Fred Whitehurst, Supervisory Special Agent in the Federal Bureau of Investigation Laboratory from 1986 to 1998, went public to reveal procedural errors and misconduct.

2009: The National Institutes of Health released Strengthening Forensic Science in the United States: A Path Forward, which essentially said that almost all forensic science is scientifically worthless or grossly overstated as to its reliability.

2016:  The United States Department of Justice announces its intention to “tighten” rules on testimony by scientists.

The new rules, which have yet to be made final, are the latest in a series of steps that the Obama administration has taken to address the problems, including those revealed in a preliminary review last year of F.B.I. testimony in hair-sample cases.

That analysis, which examined 268 criminal cases from 1985 to 1999, found flawed testimony in more than 95 percent of them. More than a dozen of the defendants have been executed or have died in prison.

If you can’t trust the government to “catch[] misconduct before it ruins peoples’ [sic] lives,” who can you trust?

The Overlord Solution

The government is the problem. The government is the solution. That’s how it is when there is an unshakable belief that someone else, someone official, must exist to save you from . . . them.  And there is no institution that believes more in officialdom as the solution to the problems officialdom creates than the New York Times.

Prosecutors are the most powerful players in the American criminal justice system. Their decisions — like whom to charge with a crime, and what sentence to seek — have profound consequences.

So why is it so hard to keep them from breaking the law or violating the Constitution?

That’s a lot to stuff into two sentences, and yet the editorial does so seamlessly, shamelessly. Are prosecutors the *most* powerful players?  In the federal system, to some extent, this is a relatively accurate assertion, because of mandatory minimums and, to the extent judges rely on it, the Sentencing Guidelines. Continue reading

Making Sense of Corey Jones’ Senseless Death

At Fault Lines, Greg Prickett runs though the details of Corey Jones’ last few minutes, revealed because his call to roadside assistance was being recorded.  The Palm Beach Gardens probationary cop who killed Jones, Nouman Raja, has since been fired from the job and charged with manslaughter by culpable negligence and attempted first-degree murder.  The charges came after a grand jury determined that the killing was “unjustified.”*

Greg, viewing this through the eyes of a guy who spent 20 years on the job, doesn’t take this lightly.

So the grand jury found that the shooting was not justified. And now [State’s Attorney Dave] Aronberg was in a bad spot. Grand juries always find for the police officer, only they didn’t do that here, and Aronberg had to make the call himself. So he charged Raja with Attempted Murder (for the non-fatal shots) and for Manslaughter by Culpable Negligence (for the fatal shot).

Huh?

OK, lets get this straight. Raja was actively trying to kill Jones but failed, justifying the Attempted Murder, but the actual fatal shot was due to negligence? Really?

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Why Does Jessica Valenti (And The New York Times) Hate The New Victims?

One would think the New York Times doesn’t suffer from the need to fill empty space to get clicks. After all, it’s the “paper of record,” and one would think it’s got smart op-eds coming out of its ears. And yet, it uses its prime real estate for hateful tripe. Why?

Today, one of the more unpleasant parts of my job writing and talking about feminism is dealing with online harassment — a now-common side effect of writing online while female. Very few days have gone by in the last 10 years when I haven’t gotten an email, online comment or tweet calling me a bitch or making a violent sexual threat. I go on Instagram during my lunch break to see my friends’ cute kid pictures, and instead find a comment from a young man I have never met telling me to die.

Who cares? This bit of critical information from Jessica Valenti, who has made a career of being a victim of sexism, overcoming her lack of education and inability to produce anything of utility to society, manages to find its way onto the pages of the Gray Lady. You attack males and complain that people respond? You should pay the “young man” (who is obviously “young” or he wouldn’t post on instagram), for without him, what would you have to complain about?

When we talk about gendered trauma, we tend to point to moments of physical danger, harassment or assault. Those are critical to discuss, of course. But we can’t leave aside the snowball effect of all types of sexism over a lifetime.

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Laws Without Rules

In a fascinating post, Ken White offers a list of ten small-“l” libertarian questions to ask about laws, given our insatiable demand that government prevent outcomes we dislike while enforcing, at the end of a gun, outcomes we favor. His first question is whether it’s constitutional, acknowledging a critical first step in the consideration of any law.

The norm is to invoke the Constitution only when you don’t like a proposed law, and to scorn constitutional inquiry when it’s an impediment.

For better or worse, it’s the paradigm under which we function. When it’s an impediment, arguments range from reinterpreting the Constitution to amending it to achieve (or prevent) an end.  These may prove to be archaic concerns.

The rest of the world doesn’t labor under our constraints, as much as we may think they should. Our jingoistic is that we’re right and exceptional. They’re not us. We win. Yet, they don’t seem to get it, so they keep doing things as if they matter. What are they thinking? Continue reading