Author Archives: SHG

The Dilettantes of Science

It was a suppression hearing before the late EDNY Judge Gene Nickerson, with co-counsel Lynne Stewart.  I have no recollection of who the assistant was.  The nurse practitioner from the emergency room was on the stand.  Judge Nickerson had a disconcerting habit of spinning his chair so the back was facing the courtroom. Every once in a while, someone would say “Judge?”, and he would answer, “I’m listening.” It pays to be sure.

As the nurse practitioner began to explain, to a reasonable degree of medical certainty of course, that the broken bones in the defendant’s face could be explained by the bruise on his skin in the precise shape of a Glock, Judge Nickerson spun around in his high-backed chair and showed keen interest.

He then seized the questioning, to show that sometimes a fellow can fall of his own accord, strike the pavement that was sadly beneath him, and get a bruise in the oddest of shapes.  The judge explained that he knew all about this. He knew science, and no nurse practitioner was going to convince him otherwise. Motion denied.

The New York Law Journal has a story of judges who are taking a “crash course” in science. Continue reading

Connecticut Exceptionalism

Put enough exceptions next to each other and you come out with a decision like State v. Jeremy Kelly, a case of such extraordinary wrongfulness that Gideon at A Public Defender has twice now dissected it in great detail.  Gid gives the short version of the undisputed facts:

The relevant facts are important because they are preposterous: the police were looking for a man named Gomez, for whom they had a warrant for violation of probation and had allegedly received a tip that he may be armed. They, while cruising in the South End of Hartford near his residence, observed two individuals walking on the sidewalk.

Because there was a gas station at the end of the street that was known to be a spot for drug sales, the officers concluded that the men had come from there. They then decided that one man fit the description of Gomez; the other was Kelly. They observed the two men walk up the driveway of a house and while one “turned his foot as if about to run” they continued to walk slowly to the rear.

Deciding, based on this, that criminal activity was afoot, the police ordered them to stop. Kelly informed [them] that he lived there, but that didn’t matter. The police ordered them to “come here”, at which point they ran. Kelly was subsequently arrested and charged with possession of drugs. They guy they thought was Gomez was actually not and was instead a fellow named Burgos.

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The View From Todt Hill Road*

A comment about the arrest of Ramsey Orta, the guy who shot the video of Eric Garner’s killing, was notably unilluminating from the perspective of the case, but quite clear about the commenter’s bias:

is anyone really surpirsed by this turn of events ??

really ?!!?

It’s always obvious to those for whom it’s always obvious.  It makes for an easy, simplistic view of the world.  This view is the same for those on the other side of the street, who similarly see no questions, no issues, no doubts.   That role today is being played by retired Jersey City Police Captain Robert Cubby:

We have watched in disbelief as the worst nightmare a police officer can have comes true. An NYPD officer applied what was falsely called a choke hold. Moments later, the perpetrator gasped for air and died in the hospital. Continue reading

The Care and Feeding of College Campus Youth

At the WaPo Conspiracy, Eugene Volokh recounts the questioning of FIRE’s Greg Lukianoff by United States Civil Rights Commissioner Michael Yaki at a briefing on sexual harassment law in education.

Yaki, who now holds a significant position in the framing of our institutional vision of civil rights, was a former senior adviser to Rep. Nancy Pelosi, and member of the San Francisco Board of Supervisors.  For those counting political affiliations, this should make it clear.

The issue under discussion was whether college age youth, in light of the Supreme Court’s holding that their brains are still developing and therefore should not be subject to the death penalty, are not similarly particularly vulnerable to harm from hurtful speech such that free speech should take a back seat to campus speech codes designed to protect them.

COMMISSIONER YAKI: But it has nothing to do with policies [likely a mistranscription of "politics" -EV]. It has to do with science, and it has to do with the fact that more and more the vast majority, in fact I think overall in bodies of science is that young people, not just K through 12 but also between the ages of 16 to 20, 21 is where the brain is still in a stage of development. Continue reading

The Parole Board Remains Untouchable

Samuel Hamilton was convicted of killing a cop.  He didn’t pull the trigger. He didn’t even have the gun, but he was there, and it was a felony murder, and he was the guy left holding the bag when everyone else fled and got away.  The murder sat on his shoulders, and someone had to pay.

But pay for how long?  Hamilton was sentenced to 18 years to life in prison.  The judge who imposed that sentence did so based on the crime, a terrible one for sure, and the relevant circumstances, including the fact that Hamilton wasn’t the shooter.  Knowing this, the judge fixed his minimum sentence at 18 years, meaning that he would not be eligible for parole until he served that length of time.

Thirty years later, Hamilton still sits in prison. Not because he was a bad prisoner.  In fact, he couldn’t have been a better prisoner.  He couldn’t have done more to rehabilitate himself, to show that he has learned, and learned much, from his crime.  If anything, Hamilton is the poster boy for a great prisonerContinue reading

Outflanking The Murder of Eric Garner

The sound of air being sucked from PBA president Pat Lynch’s lungs when he learned that Eric Garner’s death was ruled a homicide by police chokehold must have been deafening.  But a good PBA president doesn’t give up so easily. Not when his boys are at risk. And Pat Lynch is a great president.

There may be nothing left to do, no taint untouched, no smear unsmirched, when it comes to Eric Garner. So the frontal assault on the victim failed, leaving Officer Daniel Pantaleo the needless killer.  That would never do, as it puts every officer at grave risk of rebuke for the mere use of force whenever they have the misfortune of murdering someone for no reason.  Lynch was being tested.  A great PBA president would never give up just because the Medical Exminaner called it murder.

Then an exposed flank appeared, and the NYPD, in one of its greatest moments of bravery, exploited it:

Narcotics officers on Saturday arrested a Staten Island man whose visceral cellphone images of the forceful and ultimately deadly arrest of Eric Garner helped galvanize protests and set off a citywide debate over police practices. Continue reading

The Sucky Job of Adjunct

At Concurring Opinions, Dave Hoffman raises a problem that likely falls under the radar in discussions of how to improve law school, and hence the new lawyer coming into a profession about which they know next to nothing.  Much is made of the role of the adjunct professor, the seasoned practicing lawyer who provides the practical insights that academics may lack.

The adjunct is supposed to pick up the slack between the “real” professor, whose primary interest is crafting a law review article that someone will read and, dare they hope, cite, and the student who anticipates that after three years of opportunity costs and a bundle of debt, they will emerge competent to be a lawyer.  Yea, adjunct. Well, maybe not so much.

With unprecedented financial pressure on law schools due to low application and enrollment, something has to give.  With the least clout of anyone in the academy, that turns out to be the adjunct.

One wrinkle concerns the “fate” of law school adjuncts. Law schools typically employ adjuncts to teach cutting edge areas in practice, and those adjuncts are almost always otherwise employed as full-time lawyers and judges. Those lawyers and judges provide students with opportunities to understand developments in practice that no full-time instructor could deliver (whether or not that instructor ever writes a law review article). They also can be sources for leads on jobs, and can model professionalism.

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The Sentence-O-Matic 1000

One of my favorite computer geeks, Jake DiMare, posed a question the other day in response to the confusion over the language of 18 U.S.C. § 3553(a), which provides the considerations a federal judge is required to take into account in imposing sentence.  The law includes both the parsimony/Goldilocks clause, that a sentence shall be no greater than necessary to accomplish the stated goals, and the list of goals.

Judge Richard Kopf raised the question of whether the language was so devoid of meaning and guidance as to render § 3553(a) worthlessJudge Mark Bennett responded “Sentencing requires us to weigh that which cannot be measured,” to which Judge Kopf replied: “Let’s be honest then and declare that sentencing is entirely a matter of discretion…”  If so, this raises the specter of sentencing being so arbitrary and capricious, so captive to any judge’s whim, as to be a total crapshoot.

Jake offered this reaction:

Was there ever a task in the courtroom more ripe for automation?

He went on to explain: Continue reading

Eight Bagels? What About The Lox?

This is what happens when a Fishtown lawyer negotiates a deal.

That said, we have an offer for Ms. Francis. If she writes Mr. Sawyer a hand-written note politely asking him to take down the posts, along with two dozen New York bagels, he will take them down. The bagels must be authentic (not the supermarket kind), and delivered to my office by August 15th.

Something very lawyerly.

First, I question whether Jordan Rushie has the competence and experience to distinguish authentic “New York bagels” from the crap they sell at a Main Line bagel shop. Forget the stuff in the supermarket, which isn’t even in the ballpark, but the real thing.  Even in New York, there’s good and crap.  Knowing which is which means everything.

Second, what about the cream cheese?  And the lox?  What kind of Philly-stine demands bagels in settlement without cream cheese and lox?  Are you kidding me? Continue reading

The Broken Windows in the Courtroom

While Bill Bratton’s eyes are searching for broken windows in our homes rather than his, there remain other places, as yet unmentioned, where the windows are broken, shattered in fact, that need some attention.  Like the courtrooms of New York City’s criminal courthouses.

Much has been written about the concealment of Brady material, depriving the defense of critical information to show that a defendant is innocent or the cop on the witness stand is a lying sack of shit. But that comes after the fact, after the defense “discovers” that some mutt prosecutor buried the exculpatory material in the expectation that nobody would ever find it and throw it back in his face.  We all get outraged.

Yet, there’s another level that gets essentially no play, no discussion, and its window is just as badly broken. The broken window is basic discovery.  At its best, it’s so inherently limited in criminal cases in New York as to be laughable.  Still, it’s all we have, and the defense desperately needs the crumbs provided by law or we go in completely blind.

In most instances, state prosecutors have taken to giving “voluntary disclosure forms” with fill-in-the-blanks that correspond to the criteria provided by Criminal Procedure Law §240.20, which may (or may not) be relatively accurate and complete.  Judges couldn’t care less. You got the form?  Move on. Continue reading

How Many Prosecutors Does It Take?

Mario’s boy became governor following his brief stint in the New York Attorney General’s seat.  That’s one prosecutor.  Not long after he took the very small step into the Governor’s Mansion, Andrew Cuomo boldly announced the creation of the Moreland Commission, to rid New York State government of corruption.

Two of its chairs were William Fitzpartrick, Onondaga County D.A., and Kathleen Rice, Nassau County D.A.  That’s two and three.  Cuomo promised that the Moreland Commission would be completely independent and could investigate anyone, anyone at all, even him, which lasted until it sent a subpoena to a company Cuomo used in his election campaign.

He immediately had his errand boy, Lawrence Schwartz, touch Fitzpatrick and quash the subpoena, and then shut down the Moreland Commission.  He pulled a quick Bush, announcing “mission accomplished,” then rolled up the carpets and turned off the lights.

The New York Times, inexplicably, noticed all this and called Governor Cuomo out. Continue reading

Lawyers Without Law School

The New York Times Room for Debate raises the question of whether the very old school method, reading the law, provides a “good way to avoid excessive law school debt and create different perspectives on the law?”  While the avoiding debt part is obvious, what it meant by “different perspective” is a bit less clear.  Are they asking, how does the law look to clueless, incompetent lawyers?

The participants range from Dean Erwin Chemerinsky, who shockingly thinks law school is critical and happens to have seats to fill at UC Irvine law school, to the great legal philosopher, David Lat, whose three hours as a lawyer preceding his glory at identifying tantalizing judicial divas by looking underneath their robes certainly provides a “different perspective” on the law, to Brian Tamanaha, whose Failing Law Schools book was a seminal work.

For those unaware, reading the law or apprenticeship as better describes it, was the normal way to become a lawyer a century ago.  In a simpler time, it was generally sufficient for a young man to apprentice with a more seasoned lawyer until he was ready to be entrusted with other people’s lives.  That was about 34,000 laws and a million opinions ago. Continue reading