Author Archives: SHG

@RoomForDebate: Do We Need a Law Against Catcalling? (Updated)

The New York Times Room for Debate series has, of late, ranged from the irrelevant to the presumptive, which is unfortunate given the size of its soapbox and its ability to offer meaningful insight into issues confronting society.  There are often good arguments on both sides of an issue, worth knowing if a thoughtful society is to make intelligent decisions.

One of the problems reflected in the editorial choices made is their favoring advocates and academics as their “debaters,” the former bringing a woeful lack of doctrinal knowledge and the latter bringing a woeful lack of real world experience.

More often than not, the debaters fail to inform, and instead inflame as die-hard advocates of the cause. Rarely does the Times invite a knowledgeable practitioner, say a criminal defense lawyer, to opine, when they raise questions of, say, criminal law.

Today’s Room for Debate, brought to my attention by Liliana Segura, is one of both great interest and concern to those of use who address the intersection of criminal law, First Amendment law and, dare I say it, feminist concerns.  The question posed: Do We Need a Law Against Catcalling? Continue reading

But For Video: Fear Factor Edition

While I’m not usually inclined toward things that raise emotional or visceral reactions, this video does exactly that, and for a truly worthwhile reason.

Via the Free Thought Project, the video shows Alejandro Natividad, who somehow had the wherewithal to start recording with his phone, stare at the business end of police pistols and yet refuse to lie down upon command because he had committed no crime. Continue reading

Apple’s Cool iPhone Fingerprint ID Means You’re Screwed

Biometrics seems like such a cool way to control access, so when Apple offered fingerprint ID in place of a PIN to access its iPhone, what hipster could resist?  Of course, David Baust in Virginia Beach may well wish he had gotten a droid instead.

A Circuit Court judge has ruled that a criminal defendant can be compelled to give up his fingerprint, but not his pass code, to allow police to open and search his cellphone.

The question of whether a phone’s pass code is constitutionally protected surfaced in the case of David Baust, an Emergency Medical Services captain charged in February with trying to strangle his girlfriend.

While the Supreme Court has held that police must obtain a warrant to search a cellphone, the question now becomes whether a warrant is sufficient to compel a person to provide the police with access to his cellphone.  This is where it gets trickier, and far more technical. Continue reading

Proof of Consent in Rape Cannot Be Shifted To The Accused

The Washington State Supreme Court faced up to its own earlier error, holding in State v. W.R.  that the burden of proving consent in a juvenile forcible compulsion rape case cannot be shifted to the defendant.

Throughout the police investigation, W.R. consistently denied ever having sexual intercourse with J.P. Shortly before trial, he admitted that they had engaged in sexual intercourse on January 2, 2011, but defended it as consensual. To support his defense, W.R. testified that J.P. had a crush on him and that the two had engaged in sexual intercourse on a prior occasion in July 2010.  J.P. initially denied ever having sex with W.R. before the January incident. At trial, however, she admitted to having sex with W.R. on both occasions but insisted she did not consent to either. Although W.R. ‘s sister did not witness the alleged rape, she was in the vicinity when it occurred and testified that J.P. had a crush on W.R.

The trial court found J.P. credible, and W.R. and his sister incredible. The court found that W.R. committed forcible rape, and that the W.R. had failed to prove an affirmative defense of consent by a preponderance of the evidence.  The Supreme Court reversed, rejecting its earlier precedent in State v. Camara, 113 Wn.2d 631, 639-40, (1989). Continue reading

Your Rights In Geek Hands

On top of the news of the FBI spoofing the Seattle Times in an email to plant a virus on a target’s computer comes Nina Totenberg’s NPR post about a black bag job in Vegas.

Some legal cases do more than raise eyebrows — they push the legal envelope to change the law. Such is a federal case in Las Vegas now working its way through the courts. The question is whether federal agents can disrupt service to a house and then, masquerading as helpful technicians, gain entry to covertly search the premises in hopes of finding evidence that might later justify a search warrant.

Yeah, yeah. Another day, another violation of the Fourth Amendment.  Another ruse to circumvent the warrant clause, because knowing, intelligent and voluntary is such an archaic view of consent.  To the lawyer, this subterfuge specifically designed to obtain voluntary entry is a good idea only when compared to “consent or I’ll shoot your children.” Continue reading

Avvo’s 15 Minute Solution

Its launch has been fairly quiet, but Avvo has reinvented itself again, this time with Avvo Adviser:

Avvo, the leading online legal marketplace, today announced the launch of Avvo Advisor®, available online or via a free app for iOS® devices. Avvo Advisor offers consumers on-demand legal advice from an experienced, top-rated lawyer anytime, anywhere, for a fixed-fee of just $39 for 15 minutes over the phone – a savings of up to 71% over the average hourly fee for a lawyer.

Certainly a step up from the leading legal Q&A website, with its awful Avvo Answers, which have proven a substantive disaster and ethical gutter, as lawyers paraded across jurisdictions and practice areas to log as many “calls to action” as possible.  But this could be different.

Putting aside the hyperbole of “an experienced, top-rated lawyer,” which begs the question of Avvo’s ratings trustworthiness and acquiescence in scoundrel lawyers abusing Avvo for their financial gain, the idea of biting off smallish chunks of time for a quarter of a $156 per hour fee, prepaid, changes the equation.  After all, if a lawyer has an open chunk of time, he can fill it with a phone call.  It’s not a bad deal for the lawyer, as he’s not forced to take the call or under an obligation to make himself available at midnight. Continue reading

Restitution Follies: Heads, you win; Tales, I lose

Ward Farnsworth, guest-blogging at Volokh Conspiracy because he has a book to sell, offers some insight into the law of restitution.  For context, bear in mind that restitution is meant to make someone whole, to restore them to the status quo ante as if whatever bad thing that happened never happened.  Because victims.

I steal your $100 and use it to place a bet at a casino. I get lucky and win $100,000. Do I owe you the whole $100,000? Indeed I do. You can collect it all from me in a suit for restitution.

The case shows why it sometimes isn’t enough to make wrongdoers just pay for the harm they cause. The harm to you was $100; merely paying it back would leave me too well off and would tempt me to do it again (assuming I’m not in prison!). Sure, you could sue in tort and try to argue for punitive damages, but those are discretionary and are sure to be much smaller. You would be much better off bringing a restitution claim and asserting that the winnings are yours as a matter of right.

Continue reading

Five New York Counties Prove We’re Still Rubes

Onondaga, Ontario, Schuyler, Suffolk and Washington.  Those are the names of five upstate counties in the blue state of New York that make court administrators in deepest, darkest, Alabama laugh.  You see, us New Yorkers pretend to be very sophisticated and enlightened, but then we rarely travel above Duchess County, except to go the occasional swearing of a friend in Albany, after which we leave as quickly as possible.  No one ever notices the cows in Troy fields.

The New York Times applauds the “landmark settlement” between the state and the New York Civil Liberties Union (with the muscle of Shulte, Roth and Zabel behind them).

Across the state, many poor people get no legal assistance at all; the lucky ones get an overworked, undertrained lawyer. Often, there is no investigation or money to pay for expert witnesses. Overburdened lawyers frequently have no more than a few minutes with a client before advising him or her to plead guilty.

The broken system is largely a result of a 1965 decision by state officials to pass off the costly job of providing public defense to county governments. Last week’s settlement properly returns that responsibility to the state and its much deeper pockets.

Continue reading

Like Everything Else, Anger Is Tactical

A good, old fashion debate has broken out in the blawgosphere. Lord, I miss the days when we debated all the time, but I’ll take what I can get from as much of the blawgosphere as remains. It started with Jamie Koehler’s post about a young lawyer who engaged in an “ugly” argument with a judge.

Last week I watched from the gallery as a young attorney got into an ugly argument with the judge. Who knows, the lawyer might have been right when it came to the substance. But everything else about it was wrong. You do not talk over the judge. And you do not pick fights that you are going to lose, particularly when you have your client standing there right next to you. Judges are people too, and they can have long memories. Watching the judge’s body language the next day when dealing with the same lawyer on a different matter confirmed for me everything I needed to know.

As a general rule, this was fine. Gratuitous fighting with the guy who makes decisions rarely ends well. For the most part, it’s an indulgence, the lawyer venting his frustration over the judge not agreeing with him. There’s a lot of that around these days with young lawyers, who can’t understand why everyone doesn’t appreciate their brilliance and bend to their will.

But then Jeff Gamso jumped in: Continue reading

Even Paranoids Have Enemies: Seattle Times Edition

When the DEA created a phony Facebook profile for its snitch, Sondra Prince, there were howls of protest.  Sure, it was wrong to impersonate someone without their knowledge, but it’s both hard and, frankly, more than a bit disingenuous, to get too bent out of shape about the government taking liberties with a cooperator.  That’s what it means to be a cooperator, you Pollyannas.

But when the Seattle Times learned that the government secretly used its identity as part of a scheme to plant spyware on a suspect’s computer, it was furious.

Seven years ago, the FBI used a kind of spyware known as a CIPAV to track down and arrest a 15-year-old hacker who was sending bomb threats to a high school near Olympia. Old news for privacy watchdogs. But today, ACLU analyst Christopher Soghoian trawled through an arcane set of the bureau’s records and came across something startling: in order to get the suspect’s computer infected with the spyware, the documents suggest that the FBI sent a message to him that masqueraded as an e-mail from The Seattle Times. Continue reading

The Other Side of the American Rule

Much as I admire Wally Olson’s standing guard against the stupid and venal in law, his effort to demonstrate the inconsistency of the American Rule, that each party pays its own legal fees, through the case of Alabama prisoner, Anthony Warren, is a poor choice.  Warren isn’t exactly the most sympathetic of “victims”:

Warren is serving a 20-year sentence for attempted murder stemming from his running over a police officer during the chase, in which he also hit a school bus and a patrol car before crashing and being ejected from his vehicle.

And for this he gets paid?

The incident gained public attention with the release of a 2008 video of police officers punching and kicking Anthony Warren as he lay on the ground after leading them on a roughly 20-minute high-speed chase. Continue reading