Author Archives: SHG

The “Really, Really Guilty” Rule

Recently, I wrote about the problem arising from young lawyers, law students and law profs writing in a more mainstream forum on an interesting, topical issue about which they knew nothing.  Some people asked for examples, which I was reluctant to give.  My purpose wasn’t to out a law student as a dumbass. Their fault, if any, was seizing the opportunity to make themselves appear important at the expense of every reader’s intelligence. Can you blame them?

But an example appeared that’s both opportune and causes no qualms about outing.  New York Law School professor Robert Blecker, who has sought to make his scholarly bones as the foremost, if not only, law prof cheerleader of execution, somehow managed to get a piece posted at CNN Opinion.

What readers will remember isn’t the name Blecker, but that someone at the “prestigious CNN” thought the ideas so worthy as to give it space.  Little do they know how desperate websites are for content, but that’s another issue.  To the uninitiated, if it’s worth space in CNN, it must be true.  Or at least credible. Continue reading

With My Deepest Apologies

It’s not that I’m a big fan of Gilbert Gottfried, but the guy is an apology savant.

Let me begin by saying I’m sorry. I’m truly, deeply, unequivocally sorry. I apologize to the people I offend with this essay, and I apologize to the people who aren’t sure why they’re offended but are pretty sure they should be. I don’t know how I live with myself, and I hope you’ll find it in your heart to forgive me.

You see what I did there? It’s called a preemptive apology. I apologized in advance, before any of you had a chance to demand one.

When you say something publicly, beyond “hugs” and “you’re the ginchiest,” you’re going to piss someone off. Someone will disagree. Sometimes they will “respectfully disagree,” but more often they will be deeply upset at the lack of respect you’ve shown for their feelings. Continue reading

Legal Fees Lost

A line stood out in Radley Balko’s post about another forfeiture outrage.

It took Nelson nearly five years to get back his money and property. I don’t know if his attorney took his case pro bono, but if he didn’t, Nelson won’t be reimbursed for his legal costs. Nor will be reimbursed for any money he had to spend traveling to Nebraska for hearings or depositions. He also won’t be paid any interest he might have earned while the Nebraska State Police held on to his money.

The post is about a 22-year-old kid from Cedarburg, Nebraska, John Nelson.  He took his life savings of $48,100 and headed for Colorado.  A few weeks later, after buying some personal use pot and learning that Denver didn’t love pit bulls, he decided to turn his RV around and head back to Nebraska. Stopped along the way, bad things happened.

During the stop, the trooper began to suspect Nelson was transporting a large amount of high grade marijuana. Specifically, the trooper reacted to Nelson travelling in a large, uneconomical vehicle from Denver, a marijuana transportation hub city, to Milwaukee, a distribution city. The trooper also found suspicious Nelson being nervous, under-representing his criminal history, and falsely claiming snowboarding had been his reason for having traveled to Colorado. Continue reading

New York’s Happy Workers Unite

So what if the New York Court of Appeals held its aggravated harassment law unconstitutional? Who cares if Albany County’s cyberbullying law is unconstitutional?  Not the New York Senate, which just finished up with a revenge porn law embodying every constitutional failing it could think up. Certainly, there must be more they can do to keep the courts busy?

Just in the nick of time, the Senate Labor Committee voted in favor of its workplace bullying bill, called the “Healthy Workplaces.”  Who doesn’t want healthy workplaces?

S 760. LEGISLATIVE FINDINGS AND INTENT. THE LEGISLATURE HEREBY FINDS THAT THE SOCIAL AND ECONOMIC WELL-BEING OF THE STATE IS DEPENDENT UPON HEALTHY AND PRODUCTIVE EMPLOYEES. AT LEAST ONE-THIRD OF ALL EMPLOYEES DIRECTLY EXPERIENCE HEALTH ENDANGERING WORKPLACE BULLYING, ABUSE AND HARASSMENT DURING THEIR WORKING LIVES. SUCH FORM OF MISTREATMENT IS FOUR TIMES MORE PREVALENT THAN SEXUAL HARASSMENT ALONE. WORKPLACE BULLYING, MOBBING AND HARASSMENT CAN INFLICT SERIOUS HARM UPON TARGETED EMPLOYEES, INCLUDING FEELINGS OF SHAME AND HUMILIATION, SEVERE ANXIETY, DEPRESSION, SUICIDAL TENDENCIES, IMPAIRED IMMUNE SYSTEMS, HYPERTENSION, INCREASED RISK OF CARDIOVASCULAR DISEASE, AND SYMPTOMS CONSISTENT WITH POST-TRAUMATIC STRESS DISORDER.

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Investigation Reveals He “Became Unresponsive”

They say smoking kills, but this wasn’t what they were talking about. Not even in a city that bears the name meaning brotherly love, as interpreted by the moral descendants Frank Rizzo rather than William Penn.  Philadelphia has long been a tough place to be black.

Via Philly.com:

THE DAY WAS almost done, the street emptying out from a community barbecue. Inside Deborah’s Hair Salon in Nicetown, stylist Margo Broaddus put the finishing touches on her last customer, as her husband helped drag chairs inside from the day’s fun.

She needed cigarettes. So she gave Sean Broaddus $7 to run to the corner store. But seconds after her hubby disappeared inside the Dalvis Grocery, she said, cops emerged seemingly from nowhere and swarmed the store so quickly on Broaddus’ heels, it was as if the salon’s picture window had morphed into a TV screen showing a crime movie.

Not just cops. The Narcotics Strike Force.  Continue reading

The View From Below

My old pal Gideon Strumpet twitted something the other day that caught my eye.

I love when law students become internet famous for the law and write columns but don’t represent clients.

Law students, new lawyers, law professors are all busy writing about very interesting subjects of great social and legal import, about which they know nothing.  In the past, I’ve noted the problem when non-lawyers write about the law, giving what would appear to others to be sound legal advice. Except it’s totally wrong.  But hey, they aren’t lawyers and have no obligation to get it right. They have a right to be as wrong as they want to be, and anyone who doesn’t realize they’re being fed garbage gets what they deserve, right?

But what about those who seek to appear credible?  They promote their qualifications to wrap themselves in ascribed credibility, and perhaps write (for free, naturally) for a high-readership rag that gives them attributed credibility.  The only thing they lack is attained credibility, but readers will never realize that they have done nothing to earn cred. Continue reading

We Have No Secrets

The most transparent district judge seized upon a point made by another transparent judge, Richard Posner.

The American people know more about the CIA than the federal judiciary.

I suspect that’s partially true because the CIA is full of spies, and spies are cool.  Judges, not so much.  How many judges drive Aston Martins, for example? Yes, that’s MI5 rather than the CIA, but that only means Brit spies are cooler than American spies, and as everyone knows, the Brits make far cooler cars than we do. Would Clancy have Jack Ryan drive a Ford Fiesta?  But I digress.

Judge Richard Kopf applauds Judge Posner’s call for judicial transparency:

Here is my quick take. Posner is exactly right. We run the federal judiciary as a secret society. It is not. The federal judiciary is a public body that should be open and as transparent as the work of the courts permit. For example, I strongly believe that now is the time to video all federal judicial proceedings–everyone and in every court. We have the digital technology today to make these recordings available on a daily basis through CM/ECF. It could be done at low-cost, and it would open the federal judiciary to review by the public about the daily struggles, strengths and weakness of our federal courts. People throughout the world could see in near real-time what really goes on. In my view, what really goes on is largely triumphal. In any case, the people have a right to know.

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Are Cop Computers Special?

After applauding Judge Paul Gardephe’s bold grant of the Rule 29 motion to Cannibal Cop Gilberto Valle (who shall, in perpetuity, be called “Cannibal Cop,” regardless of anything else), the question was raised whether the good news overshadowed the bad news in the case, that Judge Gardephe upheld his conviction for illegally accessing police computers to check out his fantasy victims.

Count Two alleges a violation of the Computer Fraud and Abuse Act (the “CFAA” or the “Act”). The CFAA, 18 U.S.C. § 1030, imposes criminal liability on anyone who

intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains … information from any department or agency of the United States; …

18 U.S.C. § 1030(a)(2)(B). Under the CFAA, ”’exceeds authorized access’ means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled to obtain or alter[.]” 18 U.S.C. § 1030(e)(6).

EFF’s curmudgeon overlord, Jim Tyre, asked me whether I was concerned about this, given that I failed to make any mention of it at all in my earlier post.  Others were, he said, and wondered why I was not. Continue reading

But For Video: Everyone Behaving Badly Edition

The advent of pervasive citizen video has been a boon in putting the lie to police claims that their conduct was always justified when a complaint of excessive force is made. After all, it’s the word of a decorated police officer against the word of a criminal, and the target of police force is, by definition, a criminal or they wouldn’t have deserved to be the target of force.

Now, they have to work harder and stifle chuckles to pull off their claim of justification in the face of video showing what happened.  But, for those who have found these videos illuminating as to law enforcement misconduct and lies (which would exclude most judges), there is one thing to bear in mind. As much as the proof is now indisputable that police sometimes engage in abuse and needlessly excessive force, it doesn’t mean that the victim of their force is pure as the driven snow.

What the videos can show is that there is a pointless mix of entitlement, antagonism and just plain dumb behavior by people involved in police interactions.  And before anyone informs that people have a right to behave poorly, and that behaving poorly is never an excuse for police to use excessive force, you are absolutely right. In a theoretical vacuum.  And police should, without question, exercise sufficient self-control and restrain their violence so as not to harm.  We are in complete agreement. Continue reading

NY Court of Appeals Holds Cyberbullying Law Unconstitutional

Ah, to own a liquor store near a law school last night.  There must have been some heavy drinking going on, as lawprofs held an emergency lean-in support group to come up with some spin to counter the New York Court of Appeals decision in People v. Marquan M., as it sucked the wind out of their best appeals to emotion.

The case dealt with an Albany County law criminalizing cyberbullying, a most fashionable crime.  There was no question, as there shouldn’t be, that it could cause children (though the inept language of the original law covered all “persons,” from adults to corporations) terrible distress.  But the fact that there is harm in the world doesn’t mean that we throw the Constitution under the bus to make sure it’s addressed.

[D]efendant Marquan M., a student attending Cohoes High School in Albany County, used the social networking website “Facebook” to create a page bearing the pseudonym “Cohoes Flame.” He anonymously posted photographs of high-school classmates and other adolescents, with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information. The descriptive captions, which were vulgar and offensive, prompted responsive electronic messages that threatened the creator of the website with physical harm.

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Thoughts Aren’t Crimes. Even Really Disgusting, Cannibal Thoughts

The assumption is that the more horrible the crime, the less likely a judge is to apply the law neutrally and fairly. After all, the defendant was awful, and nobody likes really awful people.  In the scheme of horribles, cooking and eating women is right up there.

Yet, SDNY Judge Paul Gardephe did exactly what he was sworn to do, pushing aside the disgusting nature of the allegations and focusing instead on the law and facts.  While those who are inclined to agree with his ruling, granting the defense’s Rule 29 motion and dismissing the count of conspiracy to commit kidnapping, you may not appreciate how bold Judge Gardephe was in doing so.  The pressure to deny the motion, when it’s the cannibal cop, must have been unbearable, and yet the judge performed his duty.

The memorandum decision is long, at 118 pages, reflecting the seriousness of the case and the response such a controversial ruling would naturally evoke. In what appears to be an “executive summary,” Judge Gardephe kindly explains up front his basic conclusions, with the legal argle bargle to follow.  The New York Times sums it up. Continue reading

Unchained Subjective Expectations

In an upcoming law review article, Orin Kerr plans to argue that the subjective expectation of privacy prong of Katz is dead. Muerte. Gone, gone, gone. I told him that wasn’t the case. It wasn’t dead. It was just sleeping. Or to be more precise, the subjective expectation of privacy prong was only honored in the breach. It was taken for granted, except when the prosecution can demonstrate that it didn’t exist. Then it was resurrected to be used against the defendant.

But as was my good fortune, Judge Richard Kopf, in the course of asking some silly questions, raises a point that goes to the heart of Orin’s issue:

Second, virtually all smart phones can be locked.  That is, they cannot be opened and operated without using a code or a fingerprint scanner. Indeed, my government iPhone locks itself when no longer than five minutes has expired after the last use and may lock as early as one minute.  At that point, I cannot use the device without unlocking it using a six digit code or a fingerprint scanner. (A terrible pain in the ass.) Continue reading