Author Archives: SHG

A Second Chance, For the Judge

While it’s hardly new to have a federal judge spill his guts these days, it’s also not the norm for judges to put themselves on the line in full public view. To his credit, District of Connecticut Judge Stefan R. Underhill does so in a New York Times op-ed, in which he openly questions a sentence he imposed years ago.

In 2006, I sentenced a man to 18 years in prison. I have been wrestling with that decision ever since.

As a federal district judge, I’ve sentenced hundreds of people, but I’ve rarely agonized as much as I did over this man’s fate.

Before delving further, two things need to be understood. Judge Underhill’s reference to the hundreds of people he’s sentenced, and to the fact that he has wrestled with his 2006 sentencing decision, speaks well of him.  But then, he was charged with sentencing human beings, a judicial responsibility, for which he was poorly prepared. Continue reading

An Apology Owed To District Attorney Robert James

While I gave DeKalb County, Georgia, District Attorney Robert D. James, Jr., the benefit of the doubt, it would be untrue to suggest that I thought he could pull it off.

Whether the announcement by the DeKalb County district attorney means that he thinks he’s got a shot a getting an indictment of Officer Olsen, or just wants to put on a play to show the public that he’s doing his job, isn’t clear. He seems sincere, but what’s running through his head is unknown.

Police Officer Robert Olsen shot and killed the naked and disturbed Anthony Hill.  There were plenty of reasons why Olsen should be indicted for the killing, but those reasons haven’t proven very successful lately ever.  And unlike the failed grand jury presentations for the murders of Tamir Rice and Eric Garner, to name a couple, the law in Georgia added an extra layer of problem on top of the usual latitude shown an officer who mouthed the “I feared for my life” free pass.

While this places the prosecution in a difficult position in any state but Georgia, creating that inherent conflict between the interlocking arms of the prosecutorial function, DA James faces a singular challenge.  Georgia law provides a police officer protections that can be found nowhere else.

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Because Thinking Is Too Damn Hard

Eight seconds.  According to Timothy Egan, that’s all there is.

A survey of Canadian media consumption by Microsoft concluded that the average attention span had fallen to eight seconds, down from 12 in the year 2000. We now have a shorter attention span than goldfish, the study found.

Attention span was defined as “the amount of concentrated time on a task without becoming distracted.” I tried to read the entire 54-page report, but well, you know. Still, a quote from Satya Nadella, the chief executive officer of Microsoft, jumped out at me. “The true scarce commodity” of the near future, he said, will be “human attention.”

While SJ isn’t a 54-page report, a typical post is going to require more than 8 seconds of your attention.  Likewise, to understand and process a legal issue, pretty much any legal issue, requires more than 8 seconds. This doesn’t bode well for law.

As I was somewhat testily responding to a commenter yesterday, whose beef was that I lacked sufficient empathy to quit using thought and, in its place, hold hands and cry with him, the ubiquitous trend toward resolving all complex issues by resort to emotion was uppermost on my mind.  How did this happen? When did people decide that their feelz answered all questions?  When did people give up thinking? Continue reading

Unreasonably Foreseeable To A Drunk

It’s not mere chance that so much bad law comes out of Nassau County, New York. The former District Attorney, Kathleen Rice, planned to ride her drunk driving crusade all the way to Washington, and she did. With the blessing of those who were only too happy to ship her out of town.

But we’re still cleaning up the mess she left behind, including the misbegotten prosecution of James Ryan for the bizarre death of Police Officer Joseph Olivieri.  At Fault Lines, Ken Womble provides the backstory from the Appellate Division, Second Department’s decision reversing the dismissal of homicide charges:

According to the evidence presented to a grand jury, on October 18, 2012, before dawn, the defendant allegedly caused two collisions when he drove his car on the Long Island Expressway while he was under the influence of alcohol. In the immediate aftermath of those collisions, the defendant’s stopped vehicle was in the eastbound High Occupancy Vehicle (hereinafter HOV) lane, facing perpendicular to the direction of traffic. Within a few minutes, a police officer responded to the scene. While the officer was standing near the defendant’s stopped car, he was struck and killed when the driver of a sport utility vehicle traveling in the HOV lane did not see him or the defendant’s stopped car in time to avoid hitting them.

Unlike federal law, New York allows a defendant to move to dismiss charges in an indictment for legal insufficiency. The trial court tossed charges against Ryan based upon the disconnect between his conduct, drunk driving, and the death of Olivieri. The appellate court reversed. Continue reading

Quasi-Criminal, But They Keep Promising To Be Fair

The University of Kentucky tried once, resulting in a one-year suspension of a guy who was on the losing end of drunk sex. How drunk isn’t known, but drunk enough to lose under the peculiar view of two drunk kids means the guy is a rapist and the gal is a survivor.  But to its credit, the decision was reversed and sent back for a Mulligan.

The second time, the sentence was a five-year suspension. That will teach him not to appeal, and indeed, he learned the lesson after the Appeals Board tossed it a second time and sent it back for round three.  Instead, he took it to federal court in an effort to hop off the merry-go-round.

The male student complained that the “hearing” provided by UK was constitutionally deficient, in that he was denied due process by the “withholding of critical evidence and witness questions,” as was held on appeal. The second try wasn’t any better.

The UK response was a promise that they would do better the third time. Really, they would, and that they were entitled to try under the Younger abstention doctrine. Continue reading

Don’t Blame Judge Judy That Students Are Clueless

When CNN published a story about the report of the American Council of Trustees and Alumni, everybody went nuts over the last sentence of the opening paragraph.

There is a crisis in American civic education. Survey after survey shows that recent college graduates are alarmingly ignorant of America’s history and heritage. They cannot identify the term lengths of members of Congress, the substance of the First Amendment, or the origin of the separation of powers. They do not know the Father of the Constitution, and nearly 10% say that Judith Sheindlin—“Judge Judy”—is on the Supreme Court.

That means 90%* know that Judge Judy is an entertainer, playing a judge on TV, where she amuses the audience by her prescient cries that one of her small claims litigants is lying before they even say a word.  How much fun is that!

Well, Jonathan Turley isn’t amused. Continue reading

Beg Your Pardon

Deborah Leff is resigning in frustration. To which you say who? She held a position in the Department of Justice, to which you say, “so?”  She took her current position on November 2, 2014, though she held it as an interim position since April 30, 2014. “Enough,” you say. “Who cares?”

You should, because Leff is the Pardon Attorney.

The Office of the Pardon Attorney assists the President in the exercise of executive clemency. Under the Constitution, the President’s clemency power extends only to federal criminal offenses. All requests for executive clemency for federal offenses are directed to the Pardon Attorney for investigation and review. The Pardon Attorney prepares the Department’s recommendation to the President for final disposition of each application. Executive clemency may take several forms, including pardon, commutation of sentence, remission of fine or restitution, and reprieve.

There is no requirement that there be a Pardon Attorney. The power to pardon belongs to the President of the United States, and is unreviewable. If the president says pardon, then pardon it is. But the president doesn’t say pardon unless and until the Pardon Attorney does her voodoo, because that’s the choice the president has made.  And the other choice is to be spectacularly frugal in using the pardon power. Continue reading

Patrick Zarrelli Tests The Stupidity Of The Internet

Whether you can blame this on Gary Ostrow, just because he was foolish enough to hire reputation dudebro Patrick Zarrelli to salvage the online reputation he worked so hard to destroy, is hard to say.  One might have expected a minimally intelligent dudebro to find some other endeavor at which he could be remarkably incompetent. But not Zarrelli.

Instead, he made the flagrant tactical error of thinking his mad computer skillz and overwhelming power would be strong enough to pick off the low-hanging fruit.  So he went to Keith Lee and threatened to ruin him.
Patrick-Zarrelli-threat-keith-lee-attorney Continue reading

Tinkering With The Mechanics Of Death (Of Public Sector Unions)

I’ve made no bones about my antipathy toward public sector unionism, a fundamentally flawed concept that never should have been.  And I remain a bit miffed at the “D” I was given on the issue by a socialist, if not anarcho-syndicalist, professor in college.  It’s not that unions don’t have their virtues or accomplish good things for their members, but that public sector unions are conceptually flawed.

If oral argument in Friedrichs v. California Teachers Association is any indication, the Supreme Court is about to suck the lifeblood out of public sector unions. Steven Greenberg calls this “a ticking time bomb.”

A decision for the plaintiffs in Friedrichs would tell the nation’s 6.2 million unionized state, city, county and school district employees that they can enjoy the benefits offered by their unions without having to pay for them. By some estimates, between 1 million and 2 million workers could be expected to stop paying union fees, at a cost to public-sector unions of $500 million to $1 billion a year.

Since public sector employees can’t be compelled to become union members, they can, per the Supreme Court’s decision in Abood v. Detroit Board of Ed., be compelled to pay agency fees, justified as a fee for the service of negotiating a contract on behalf of non-union members of the collective bargaining unit. Continue reading

If It’s A Loophole, It Must Be Closed

No one credibly argues that domestic violence isn’t a problem, and a problem in need of fixing. Historically, police left violence within the home to families to work out, outside the legal system. This didn’t work very well, as it just left the victims of domestic violence to get beaten some more until they eventually ended up dead.

Of course, cops had a horse in the race, but then, there has been a significant shift in policy to not just taking domestic abuse very seriously, but a “zero tolerance” approach requiring police to make arrests in every instance, regardless of whether there was significant doubt about who assaulted whom, or whether it would be best, in the exercise of discretion, to give the participants a chance to work it out because destroying the family unit. Except when the perp was a cop, because, well, cops.

Add to this problematic mix the latest round of gun hysteria, and the New York Times has called for closing a “loophole.”

Yet shortcomings in federal and state law allow many domestic abusers to have access to firearms, even after courts have determined that the abusers pose a threat to their partners. Continue reading

The ACLU Is Totally Wrong, But Completely Right

At Fault Lines, Noel Erinjeri writes about the ACLU’s lawsuit against the Orleans Public Defender and its chief, Derwyn Bunton, following the decision to refuse to take on more cases than it can ethically and constitutionally handle.

In its introduction, the complaint on behalf of three detained defendants both explains the obvious and makes a critical error:

3. However, OPD has refused to accept Plaintiffs as clients due to budgetary shortages and excessive caseloads. OPD has instead placed Plaintiffs on a waiting list for appointed counsel. OPD’s refusal to represent Plaintiffs means that they must languish indefinitely in jail without counsel until OPD secures adequate resources to provide them with an attorney.

That these three defendants “languish indefinitely in jail” is certainly true. That they do so because of OPD, however, is certainly wrong. The Orleans Public Defender didn’t arrest them. They didn’t set bail. They certainly didn’t set unmakeable bail. And the OPD neither has the wherewithal to “secure adequate resources,” nor has somehow neglected to do whatever it is the ACLU apparently thinks they should have done to “secure adequate resources.” Continue reading

The Sweet Fumes of Chevron

Can you still hear it?  It was the thunderous applause of the 99% when first The Intercept, then the New York Times, ripped the proposal that a mens rea requirement of “knowing” be imposed upon regulatory offenses. All because the Koch Brothers supported the bill, and anything the Koch Brothers support must be evil.  So can you still hear it?

Wanna bet it’s still ringing in Juan Esquivel-Quintana’s ears? He’s no corporation, and it wouldn’t have helped him anyway, but he probably gets it after the Sixth Circuit’s split decision in Esquivel-Quintana v. Lynch.  He lost, after the majority held that they’re bound by the Supreme Court’s ruling in Babbitt v. Sweet Home Chapter, Communities for Great Oregon. At Volokh Conspiracy, Jonathan Adler explains.

At issue was whether a state law conviction of unlawful sexual intercourse with a minor constituted a conviction for “sexual abuse of a minor” under the Immigration and Nationality Act. The majority, in an opinion by Judge Danny Boggs (and joined by Judge Deborah Cook) concluded Chevron deference was appropriate and that such a conviction did qualify. Judge Jeffrey Sutton dissented on this point, finding Chevron deference inappropriate.

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