Author Archives: SHG

A Prosecutor’s Sexual Frustration

To read Matt Adam’s IndyStar story is to court outrage.  A former student at the University of Indiana got away with not one, but two, rapes. Sure, he was convicted of battery in a plea deal, but he spent a grand total of one night in jail, but for two rapes?  Outrageous!

The Monroe County Prosecutor’s Office admitted it was frustrated after a former IU student charged in two rape cases ended up spending one day in jail.

John Enochs will serve one year of probation after pleading guilty to battery with moderate bodily injury as part of a plea agreement. Two rape charges against him were dismissed.

Adams then describes, at length, Enoch’s dastardly crimes. Continue reading

Stand And Deliver

The stars almost aligned for Philips Thompson. He was mere inches away from a really fascinating attack on the search and seizure of a package of crystal meth he brought to his local UPS store for shipment.  There are any number of ways to get drugs from here to there, but since the UPS guy was going that way anyway, why not?

Thompson wrapped it well and sent it under the name of “Sam Niel.” Maybe this was his twitter name. Maybe he just liked the name a lot. Maybe he used an alias to create plausible deniability that he was the sender. But the woman at the UPS store took it anyway, charged him for the pleasure, and reported it to the San Bernardino Sheriff’s Department.  She was, you see, a snitch, a paid confidential informant.

In May 2012, the UPS store owner signed a confidential agreement whereby she agreed to assist the sheriff’s department in the investigation of crimes. The sheriff’s office considered her to be a citizen informant. She agreed not to disclose her association with the sheriff’s department and to keep in “constant contact” with the sheriff’s department while participating in any investigation. Detective Hague told the UPS owner she might be compensated for her cooperation.

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The Other Starbucks Lawyer

For a long time, the “Starbucks lawyer” has been a running joke, a notion promoted by Future of Law types who contend that having a brick-and-mortar office is so 20th Century, and cool kids with a laptop can practice law from anywhere, to anywhere, any time, in their bathrobes. Because these lawyers, too impoverished to pay rent for a big boy law office, so adore a mocha frappuccino, they would set up business in the local Starbucks, because free wifi. After all, when you only have $5 to spend, wouldn’t a Venti be a better use of funds than wifi?

The joke, however, was on the misguided, if novel, grasp of what lawyers do and how they do it. That they happen to like Starbucks coffee wasn’t really the issue. It’s not my favorite cuppa, but to each his own. Given the right set of circumstances, the proper motivations, the idea of the Starbucks lawyer, much like the Wal-Mart lawyer, is not just fine, but a pretty darn good idea.

A Columbus Starbucks store will be the location of a new legal clinic offering free advice to military veterans.

Starbucks has partnered with the Ohio Military Veterans Legal Assistance Project to offer free, noncriminal, legal advice at a pop-up clinic at the Henderson Road Starbucks location.

Coined the “Veterans Second Monday Legal Clinic,” it will hold its first session on July 11 from 5-8 p.m.

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Dinner With Bob McDonnell

A friend who was elected to a moderately low level position told me that a politician was a person you would never invite to dinner but for holding office. “Invite to dinner” is code around here for a person with no redeeming social value. Neither witty nor pleasant, smart nor interesting, trustworthy nor insightful. Politicians have one thing to commend them to others: A degree of power to influence outcomes.

Certainly, this wasn’t true of all politicians, as I had dined with my friend before he took office, though we never dined again after this conversation. It wasn’t that I no longer liked him enough as a person to have him over, but his dinner card was filled with donors, other politicians and donors.

The nature of what politicians do was revealed in the conviction and reversal of conviction of former Virginia governor Bob McDonnell.  The Supreme Court gave him a pass, or maybe only a reprieve, for being a politician. Continue reading

The ABA Can’t Be Trusted

Somebody has to accredit law schools, and that job has long fallen to the American Bar Association. It makes sense, on the one hand, to put the job in the hands of an organization that was once the guardian of professional competency. It doesn’t make sense, on the other hand, to leave something as important as accrediting the humongous business of law schools to an organization held captive by the nice folks whose paycheck is signed by the schools they’re judging.

And for a long time, nobody gave it a second thought. They are now.

The National Advisory Committee on Institutional Quality and Integrity (NACIQI) soon will pass its decision back to the U.S. Department of Education, which last week recommendedshutting down ACICS and will have 90 days to decide the accreditor’s fate. An appeal by the accreditor and lawsuits could follow.

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Most notably, the panel on Wednesday rebuked the American Bar Association, in part for its lack of attention to student achievement.

Ah yes, students. The poor schmucks who are tolerated because they take out the loans to hand over to the schools, which in turn uses the loot to pay law profs to write law review articles that no one reads. Seems legit. Continue reading

The Constitutional Right We Love To Hate

The case involved a double whammy. Domestic violence and the Second Amendment. Both involve sacred cow issues, either of which would have been sufficient to raise serious concerns that the politics behind the issue would spell disaster.  And here they were, together. What could possibly go wrong?

There was a time when there were questions raised as to why domestic violence should be treated differently than any other violence.  Violence is bad. Violence is criminal. Is there a reason why violence against a member of a household should be any worse than violence against a stranger?  But then the platitudes and tears became the arguments, and so the law was changed.

Domestic violence became a thing, separate and apart, because, well, it involved stories of husbands beating their wives, and men should never do that because the stories were terrible. The stories of men beating strangers weren’t great either, but that was compartmentalized in the tales of woe, so it was ignored. Like hate crimes, the conduct was the same. The harm was the same. The feelings were different. Burn the witch.

Add to that mess guns. The idea actually made greater sense when guns were introduced into the mix, as a gun in the house gave rise to a mechanism by which an outraged person, whether on impulse or by nature, could inflict far greater harm than he could with his hands. Sure, knives were still there, but you can’t stop everything. At least there would be no guns with which to kill in a moment of fury. Continue reading

Dick, Dawn And Akhil: Why Don’t You Love Us Long Time? (Update)

There’s an ongoing series at Slate called the Supreme Court Breakfast Table. I don’t know what they serve, but it’s clearly not bagels and lox, as proven by the fact that nobody invited me to dine.  But then, who would want a trench lawyer horning in on the polite conversation of important legal minds so early in the morning, right?

Except that Judge Richard Posner is in there, serving up a huge portion of grits.  The Seventh Circuit’s firebrand is the “Dick” in the title, which is what some of the participants call him in the dialogue. Not Indiana lawprof Dawn Johnsen, however, who offered this parenthetical:

(I note that by using Judge Posner rather than “Dick,” I hope I am being appropriately but not “too respectful;” addressing a judge known from clerkship days by his first name feels to me as unnatural as would calling my fourth-grade teacher “Lee” and not Mr. Tintle, even decades later.)

Like Johnsen, I call judges “Judge,” though my reason is somewhat different. It’s not because of some personal clerkship quirk, or any concern about being obsequious. I will call them “judge” while being slightly critical of their decisions. No, my reason is institutional. They’re judges and I’m not. They get to be called by their title out of respect for the institution and the fact that they hold an office in it which I do not. Continue reading

Hacking Makes Privacy Unreasonable? Meh (Upate)

Much as USA Today’s Brad Heath is to be commended for bringing to the forefront another mind-numbingly dumb thing a judge said, it’s not without a problem.

heath

This is from United States v. Matish, another of the Playpen cases where the feds took an ongoing kiddie porn site, continued to commit the crime it contends is so heinous to identify its users by dubious means, and are now facing challenges in various federal courts around the country.  This decision was from Virginia Senior United States District Judge Henry Coke Morgan, Jr.  And it’s not only ignorant from a computer point of view, but its logic fails by any calculus. Continue reading

You Can’t Handle The Truth, Prosecutor Edition

At Reason, a former federal prosecutor turned defense lawyer tells all. Granted, it’s just one guy’s story, but it is his story whether you like it or not. As it happens, that one guy is my buddy, Ken White.

When I left the U.S. Attorney’s office after more than five years, my disenchantment with the criminal justice system had begun to set in. Now, decades later, my criminal defense career has lasted three times as long as my term as a prosecutor. I’m a defense-side true believer—the very sort of true believer that used to annoy me as a young prosecutor.

Once again, nobody taught me to think that way, and nobody had to. I learned it by watching how the system ground up clients indifferently and mercilessly. I learned it by watching prosecutors make the sorts of arguments and decisions I had made, and seeing how they actually impacted human lives. I learned it by watching prosecutorial suspicion—and even paranoia—from the wrong end. I learned it by watching how the system crushed indigent clients, and by how it could destroy the lives of even wealthy clients with minimal effort or cause.

What follows is an explanation of the forces that framed his mindset, his perspective. Whether this is an overarching explanation for all prosecutors, or just how one came to be the prosecutor he was, and his epiphany that he was the prosecutor he didn’t want to be, I dunno.  Continue reading

How’s That Crowdsourcing Working For You Now?

In the aftermath of the Brexit vote, while all the really smart people are explaining that the Brits who voted to leave are stupid racists, few (if any) seem to factor into the equation that this is what happens when you leave decision-making to the will of the majority. You can argue whether the vote actually reflected the will of the majority, but that, too, is a fool’s argument. They took a vote. Leave won. That’s how voting happens. Excuses don’t change it.

Watching the blind adoration of every nouvelle concept in the past decade, there would seem to be no way to miss the fact that early adopters, loud and passionate, at the fringes keep trying to push their way to the center, to make their idea the mainstream. They talk their way past the objections, sometimes with slogans, other times with anger and viciousness, always with the certainty that simpletons clutch to their chest that they are right.

Maybe the Brits who voted to leave are stupid racists. So what? Even stupid racists get to vote. More realistically, even regular folks who aren’t on the cutting edge, who aren’t willing to sacrifice what few gains they’ve made in their own life to your gender and racial politics, to the sacrifices you feel are worthy because of whatever sense of fairness and equality you feel, get to vote. Continue reading

One Less Twitter Follower For All The Wrong Reasons: @Ebolamerican

Milo Yiannopoulos, who twits under the name @Nero, trades in outrageousness to make his gay conservative point as tech editor at Breitbart. Hate him all you want (and for SJWs, that was plenty), but it failed to serve as compelling justification to remove his blue check mark. Robert Stacy McCain wasn’t so lucky, being stricken from the twitters for being too harshly conservative.

Now, it’s Josh Smith.

Josh Smith, a Cornell graduate who runs a private legal practice in Pennsylvania, had his account [email protected] suspended and then restored five times over the course of six months, without any explanation from Twitter. This led Smith to believe that his suspensions were “false positives” – a flaw in the platform’s algorithms.

Josh Smith comes across as polite, mild-mannered, and intellectual. He publishes long, thoughtful posts on politics, the law and society on his personal website, which only rarely descend to personal attacks. If he wasn’t a conservative, he’d be the last person you’d expect to have had his Twitter account suspended multiple times.

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Strict And Strictiness

The outcome of Fisher v. University of Texas, holding that the holistic consideration of characteristics such as race that would otherwise violate the Equal Protection Clause of the Fifth and Fourteenth Amendments is constitutional, is one I support on a policy basis.  In other words, I believe that a diverse student body provides inherent virtues.

But “stuff I believe” is hardly a valid legal test, any more than stuff you (or anyone else) believes. And indeed, it wasn’t the test applied by the Supremes, because the law requires that UT’s race-cognizant admissions pass muster under strict scrutiny.  Before you scream that strict scrutiny is too high a bar, remember that it’s the same test if the same characteristics were used, but in the opposite direction. Would a college admissions policy favoring whites only be constitutional? Strict scrutiny applies there too. Happy now?

But Hans Bader raises a problem that might easily be obscured by the fact that UT’s policy is on the side of the angels.

The Court conceded that under its own past precedents, “A university’s goals cannot be elusory [sic] or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.” It then upheld the use of race to promote vague “educational values” whose achievement was unproven (and which would probably not be measurable to begin with) as a “compelling government interest”: Continue reading