Author Archives: SHG

Dharun Ravi and the Criminal Element

One thing must be admitted off the top: we don’t know why Tyler Clementi committed suicide. Even if you actually knew Clementi, which you don’t, you don’t know what was going on in his head. If you did, you would have stopped him, but you didn’t. And if you didn’t know him, and you didn’t, you have no idea what made him commit suicide.

You may believe it was the humiliation caused by Dharun Ravi’s outing him as gay in their Rutgers dorm, but that’s just a belief that can neither be proven nor disproven. You don’t know. I don’t know. Nobody knows. If you can’t admit this, then there’s nothing more to discuss.

But Dharun Ravi was convicted of a laundry list of crimes, none of which involved Clementi’s death. But they were all a proxy for Clementi’s decision to commit suicide, because of how Ravi’s actions made Clementi feel.

Wails were heard across Middlesex County.  Curiously, the judge did not impose the presumptive ten year sentence of imprisonment because he did not believe Ravi was biased against gays: Continue reading

The Wells Fargo 5300

When news broke that Wells Fargo fired 5300 employees and agreed to a penalty of $185 million, it was shocking.   There were three reasons for this shock:

  1. The scope of the fraud was massive
  2. The penalty was, to a bank with a market valuation of $250 billion, the highest of any bank in America, trivial
  3. Of the 5300 employees fired, not one was an upper echelon corporate executive.

Turned out that trench level people were being relentlessly pushed to produce new accounts, new credit cards, anything new that produced new fees, and so they did. Just without the knowledge of the putative account holders, even though they were being charged (or penalized, as the case may be) for these accounts.

Former employees tell CNNMoney that they felt incredible demands from managers to meet sales quotas. The same managers turned a blind eye when ethical and even legal lines were crossed. Continue reading

Minnesota Suit Raises The Other Side Of Title IX (Update)

That the guy was twerking in the girls’ locker room is funny, but the least of the problems. That high school girls were compelled to share a locker room with a biological male is one issue. That they were forced to do so because some administrators decided they were going to change everything to create their version of Utopia is another.  And this complaint, filed in federal court in the District of Minnesota, does an excellent job of spelling the issues out.

The first paragraph of the complaint provides a good overview (broken into paragraphs for readability) of the claim:

1. This case is about protecting the privacy of every student within Independent School District 706 (“Virginia School District” or “District” or “District Defendant”)—privacy that the Defendants violate each school day through their new rules and policies that radically changed the meaning of “sex” in Title IX. Defendants have unilaterally rejected the Title IX meaning of sex, which for 40 years has meant male and female: two objective, fixed, binary classes which are rooted in our human reproductive nature. In lieu of this unambiguous meaning of sex, Defendants inject a distinct and altogether different concept of gender identity which is subjectively discerned, fluid, and nonbinary. Continue reading

Dwyer Digs A Shallow Grave For Brady

How many articles, posts, opinions, condemnations have been written about prosecutors concealing Brady material? A thousand? Ten thousand? A million? Certainly a lot. And of them, this may be the most worthless, garbage article I’ve ever seen. Not necessarily because there haven’t been other crappy posts and articles, but because this one is in the New York Times.

Even worse, this one is written by Jim Dwyer, who has long been one of the more knowledgeable writers on legal issues.  That he had space in the Times and squandered it on an article that had all the depth that could be mustered by a high school sophomore is a crying shame.

The article begins with a few details about a Brooklyn murder conviction reviewed and dismissed by District Attorney Ken Thompson’s office.

In 2010, to convict a man named Wayne Martin of killing two people during a stickup of a Brooklyn tire repair shop, someone in law enforcement went to the trouble of blanking out a paragraph in a homicide report.

The erased portion said that a witness had identified someone other than Mr. Martin as the gunman.

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Title IX’s False Expectations Hurt Too

The mythology being spread across college campuses about how Title IX can cure all pain of sexual abuse and rape, whether real or imagined, may be part of the aspirational ploy used in the hope that if it’s said enough, spewed with force and certainty, it will make it real. It’s a lie, but if enough people believe a lie, then the hope is it will become real.  A young woman at Harvard found out the hard way that it doesn’t work that way.

Her letter to the editor of the Harvard Crimson is published anonymously to protect her identity, or as the editors put it, “due to the private and intensely personal nature of its content.” That’s fine, although it ignores the fact that someone chose to write about something of an “intensely personal nature” publicly. Either it’s private or public, and since it relies upon believing the accuracy of factual claims, it’s impossible to assess if posted anonymously. Unless, of course, you’re inclined to “believe the victim” no matter what.

Dear Harvard,

Hey, it’s me. One of your statistics.

Call me what you want: sexual assault victim, rape survivor, a report of “nonconsensual sexual penetration through the use of force.” It doesn’t really matter, because no matter what happens or has happened, I am simply, completely, and totally me. And I have something to tell you.

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Mercy For Dylann Roof? The Government Argues No

The right to present a defense in a criminal prosecution, whether at the stage of guilt or punishment, is a foundational constitutional right.  There isn’t much point to a trial, to competent counsel, if the defense can’t make its case. But this is about Dylann Roof, perhaps the most hated living person in our expanding pantheon of hated people.  What about Dylann Roof?

In documents filed this week, prosecutors argue that lawyers for Roof, the accused Charleston church shooter, not be able to instruct jurors that they are never required to impose a death sentence.

Use of the word “instruct” is unfortunate and inaccurate, as defense lawyers don’t get to “instruct” jurors about anything. That’s why they give the judge the cool black robe. What they do get to do is argue to the jury that the law never mandates execution. What’s wrong with that?

The government argues that, under the Federal Death Penalty Act, the determination of sentence is based on aggravating and mitigating factors, and the admissibility of evidence is constrained by law. Continue reading

Past Performance Is A Good Indicator?

On the federal Sentencing Guidelines grid, there are two axes. One is for the offense level, which started with a number pulled out of the collective butts of the Guidelines commission, then adds and occasionally subtracts numbers to reach the final number, whether it’s a drug conspiracy, insider trading or terrorism. The other axis is for criminal history.

SentencingTable

See across the top? There are some curious details that go into what’s counted, and not counted, in criminal history, but for the most part, it’s fairly straightforward. More than ten years since the sentence was completed and it’s not included. Less and you get burned for it. Continue reading

Greta Van Susteren Leaves Fox, But So What?

Before Greta Van Susteren became a talking head at Fox, part of Murdoch’s stable of conservative blonde women, she was a respected and knowledgeable criminal defense lawyer who did some great work at CNN, particularly during the OJ Trial.  Greta was the one thing that doesn’t exist today anywhere on the tube: someone who knew criminal law from the defense side and could explain it in a thoughtful and intelligent fashion.

A criminal defense lawyer, adjunct faculty member at Georgetown Law School, Greta was no dummy.  When she hosted Burden of Proof with Roger Cossack from 1994 to 2002, her intelligence and wit was on full display.

Somebody on air actually knew what they were talking about when it came to crim law. It wasn’t the usual horseshit talking head between commercials, being asked an idiot 4½ minute question that assumed the answer, and giving the 30 second reply that confirmed the host’s inflammatory narrative. Greta had depth. And then, poof, a new nose and she was gone.

When Greta Van Susteren was bought by Rupert Murdoch for Fox News, I defended her right to get a new nose, and felt this was an inappropriate basis for attack.  Many people get new noses for varying personal reasons, and Greta was every bit as entitled to a new nose as anyone else.

But what about a new brain?  Now that’s another story.

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What Flavor Should The Supreme Court Be?

Adam Liptak quotes Supreme Court Associate Sonia Sotomayor’s wry observation:

“The Supreme Court is never going to be a melting pot reflective of the country,” Justice Sotomayor said. “In most of our lifetimes, the court is only going to turn over one full circle.”

There are only nine potential seats, and despite some superficial signs of “diversity,” such as the black seat being held by Clarence Thomas, it hasn’t worked out the way identitarian-obsessed progressives seem to think it should. The numbers don’t allow for accommodation of the identity politics flavor of the day, particularly when that’s an ever-changing goalpost, and nine isn’t enough to accommodate the vast array of identity groups. Why is there no morbidly obese justice? Where is the blind justice? Who can hear the deaf justice? Certainly not the Slovenian justice, who speaks English as a second language.

Granted, it’s remarkably homogeneous by most metrics today:

Justice Kagan, speaking on Wednesday at the University of Arizona in Tucson, said the court may suffer from what she called a “coastal perspective,” The Arizona Daily Star reported. (She is from New York City. As is Justice Sotomayor. As is Justice Ruth Bader Ginsburg. As was Justice Scalia. Between the four of them, they represented every borough but Staten Island.)

Justice Scalia made a similar point in a dissent last year. “Eight of them grew up in East and West Coast states,” Justice Scalia wrote of the court’s membership at the time. “Only one hails from the vast expanse in-between,” he added, referring to Chief Justice John G. Roberts Jr., who is from Indiana.

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Labor Day For Poor Kids

On the one hand, issuing a report that the sun rises in the east doesn’t seem worth the effort. On the other, it serves the purpose of reminding us that the problem is still there, and maybe deserves some room on the front burner. The report, issued by the Juvenile Law Center, is provocatively titled Debtors’ Prison For Kids, The High Cost of Fines and Fees in the Juvenile Justice System.

Across the country, youth and their families, including many in poverty, face monetary charges for a young person’s involvement in the juvenile justice system. Too often, the inability to pay pushes the young person deeper into the juvenile justice system and exacerbates the family’s economic distress. This report examines how and when youth and families face financial obligations, briefly looks at the economic consequences, and considers the legal consequences for failure to pay.

There is nothing in there that is unfamiliar to anyone representing the poor, in general, and poor kids, in particular. But these are the most easily forgotten, unless you happen to have the misfortune of being poor and involved in the legal system. In that case, it’s impossible to forget, as it follows you around forever. Continue reading

Rick Horowitz Explained It, But Gene Haagenson Didn’t Care

On occasion, I’ve questioned the fact that journalists tend to be slightly less than accurate in reporting legal matters. It’s not that they’re bad people, necessarily, but that they just don’t know any better. Like most folks, they assume too much, apply their own sensibilities to things about which they know little to nothing, and then put it out there on their platform for all their readers to see. It’s not always pretty.

But ABC30 News’ Gene Haagenson doesn’t get the benefit of Hanlon’s Razor when he wrote his story about the 9th Circuit’s opinion that a medical marijuana user was precluded from purchasing a handgun.  He was told.

My first reaction when Gene Haagenson called me from ABC30 news to ask about a Nevada case preventing a woman with a medical marijuana card from owning—note that I’m stating it as the question was originally put to me, not as it really was considered in the court—a gun was that it was unconstitutional.

I told Gene I had not heard of the case yet, but would check as soon as I got the opportunity. I was driving at the time, so I couldn’t even look anything up on the computer.

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A Win Against Revenge Porn Makes Advocates Angry

You would think this would be a big deal amongst the small crowd of passionate anti-revenge porn advocates, as it was a huge victory for a woman harmed. Isn’t that what it’s all about?

In what might be Michigan’s first revenge-pornography case resulting in a monetary judgment, a woman was awarded $500,000 this week after her ex-boyfriend posted nude photographs of her on multiple Internet sites.

Half a mil is a lot of money, but that’s not all. The woman’s lawyer, Kyle Bristow, did a great job taking down this miscreant.

According to court records from the Oakland County (Mich.) Circuit Court, Judge Martha Anderson awarded the sum Wednesday, which is set to accrue interest over time. Anderson also granted a permanent injunction against the ex-boyfriend, forcing him to immediately destroy and never republish the photos to third-party websites. If he does, Bristow said, he can be held in contempt and face prison or additional fines.

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