Author Archives: SHG

6th Circuit to Burleys: Tough Nuggies

Nine years ago, Geraldine and her daughter, Caroline, Burley were the victims of a forced entry into their home by masked men. They later came to learn that the men were identified as Team 11. Radley Balko was on it years ago, and is still on it now.

Geraldine, now 70, pleaded with the man to let her move to the floor slowly, explaining to him that she’d had both of her knees replaced. Instead, another officer approached, grabbed her by the face, demanded that she “get the [f–––] on the floor,” then threw her into a table. She tumbled to the ground. At that point, she said later in a deposition, everything turned to “a fire, white and ringing in my ear.” Another officer came up from the basement with her grandson, stepping on her knees in the process. She cried out again in pain.

Were these dangerous felons in need of a “dynamic entry,” the euphemism preferred by police because it sounds so much better than any more accurate phrase, by a SWAT team to rid society of their violent crimes?  Not quite.

According to the Burleys’ accounts, the officers who raided their home were clad in black. Some wore balaclava masks or face shields that hid all but their eyes. Others pulled their hats down low to shield their identities. They had also obscured their names and badge numbers. Once the Burleys’ house had been thoroughly searched, both women asked the officers for their names. After holding an impromptu meeting, the officers told the Burleys that they wouldn’t divulge any information that could identify them individually. Instead, they told the women that they had just been raided by “Team 11.”

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The Cost Of A Movie In Aurora, Colorado

There are people for whom we can feel enormous sympathy. Real victims. True victims. Undeniable victims. And still, they can make poor choices and, ultimately, suffer the consequences in court.  For some of the victims of James Holmes’ rampage at Cinemark’s Century Aurora 16 theater in Aurora, Colorado, the bill just came due at $700,000.

The question was never whether the plaintiffs were injured. They were, and their injurious were grievous. And there was no fault on the part of the plaintiffs, ordinary people who did nothing more than go to see a movie.  The question was whether the movie theater breached a duty to these patrons by failing to provide sufficient security to address a crazed shooter like Holmes. Was the theater liable for their injuries? Of this, the plaintiffs were certain:

“It was the 12th hour, we were all feeling the same way. We all knew they were liable. We knew they were at fault,” [victim Marcus] Weaver said.

The plaintiffs knew what was coming. They were told. There was a state case that resulted in a jury verdict for Cinemark, that they couldn’t have foreseen Holme’s rampage.  Judge R. Brooke Jackson actually told them that he would issue a decision against them, ending the case, the following day.  And Cinemark put a settlement offer on the table. Not a good offer from the plaintiffs’ perspective, but an offer. Continue reading

I Didn’t Take Goose Baxter’s Britches

Aside from the honor of being an Admiral in the Great Navy of Nebraska, I’m also a Tennessee Squire.  Many years ago, I was graced by the kind folks from Jack Daniels with plot f20377 in Lynchburg.  Every once in a while, I get a letter from one of the neighbors about some confounding issue, and one arrived yesterday from Goose Baxter’s wife, Debbie.

Goose Baxter's Britches

It’s not that Debbie accused me of anything, as it would be un-neighborly to do so. But let’s be frank, that’s what she meant.  So unlike some folks who never denied that they didn’t kill Noel’s puppy, I did not take Goose’s britches.


The Guerrilla In The Law School Classroom

The head-scratcher was why the ABA, which has been granted the authority to accredit law schools for reasons that haven’t aged well, decided that Texas needed yet another new one when it conditionally approved one at the University of North Texas-Dallas. Were there not enough unemployed, starving new lawyers vying for jobs at Dairy Queen already?

The answer may be found in the critique of this inexplicable decision at the Chronicle of Higher Education.

Texas as a state has no shortage of lawyers. However, UNT has sought to train lawyers interested in representing lower-income residents by admitting students from more diverse, and non-traditional backgrounds. The school, which was launched in 2014, also placed a lower priority on LSAT scores than many institutions. Instead, it looked for work experience and other accomplishments that indicated applicants could succeed in classes and on the bar exam. And UNT is charging thousands less in tuition and fees than even other public law schools in the state.

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Nasty Case Begets Even Nastier Defense

Whether Roger Ailes is the pig he’s alleged to be will be known soon enough. But since he’s Roger Ailes, the now-ex-soul of the most hated conservative news channel on the tube with the best tagline, “fair and balanced,” he’s a lightning rod. Weird how controversial people, knowing that they have a target on their foreheads, do things certain to destroy them.

Two high-profile lawsuits against Roger Ailes, the former Fox News chairman, have painted a shocking picture of brazen sexual harassment at the network. In her bombshell complaint against him, the former Fox host Gretchen Carlson said that he told her, “I think you and I should have had a sexual relationship a long time ago.” Last week, another former Fox host, Andrea Tantaros, filed her own lawsuit, stating that Mr. Ailes told her to turn around so he could “get a good look” at her and that she was harassed by other employees and even show guests.

The details both women lay out portray Fox as a place where sexual harassers roam free, grabbing or ogling whatever they fancy, with consequences brought to bear only on the victims who speak up.

The image couldn’t be more unsavory, which, for a news source promoting traditional values, makes the irony delicious and the conduct reprehensible. Fox News wasn’t Bill Buckley’s flavor of conservatism, and Roger Ailes (not to mention many others who roamed the hallways), love him or hate him for his politics, gets no free pass for his conduct. Continue reading

Law Without Logic? No, Thank You

Oliver Wendell Holmes famously wrote in The Common Law,

The life of the law has not been logic; it has been experience.

By that, he meant that the law develops as it plays out in real life, rather than with mathematical certainty based upon axioms. And, indeed, experience in the trenches is that the most fundamental of legal doctrines, no matter how logical, often play out in ways neither intended nor anticipated. So the law adjusts. Continue reading

Is Daytime Like No-Knock?

At Volokh Conspiracy, Orin Kerr raises an interesting question arising out of the D.C. Circuit’s decision in Jones v. Kirchner.

The question in the case is whether a magistrate judge’s decision to limit a warrant search to daytime hours is binding, such that the officers necessarily violate the Fourth Amendment if they execute the warrant at night. The court presented the issue as easy and answered the question “yes.”

For most of us, there would be little question as to why anyone would find the decision otherwise. In some states, New York for example, executing a warrant at night requires judicial authority, and failure to obtain that approval is the end of the question. After all, what purpose is served by requiring a neutral magistrate to authorize a search if the cops are free to do as they please regardless?

But Orin throws a monkey wrench into this bright line rule: Continue reading

A District Attorney’s Gotta Eat, You Know

There has been much to appreciate about the changes implemented by the new(ish) Kings County District Attorney, Ken Thompson. not the least of which is he’s not Joe Hynes. Thompson has reviewed and tossed questionable past convictions, particularly by lying mutts like disgraced Det. Lou Scarcella. But hard work makes a guy hungry, and how can one do his best prosecuting when his tummy is growling?

When a food order came in from the Brooklyn district attorney, Ken Thompson, the officers in charge of protecting him knew the drill: Go pick it up — a bagel or a burger or, at least once, a piece of salmon — and pay out of their own pocket. Later, the district attorney’s office would reimburse them.

That bit of convenience for the elected chief prosecutor in Brooklyn went on for months after he took office in 2014, and included meals for Mr. Thompson when he worked nights and weekends.

The man worked nights and weekends. Do you think Cy Vance works nights and weekends? And misses all those garden parties in the Hamptons? Get a grip.* Continue reading

You Won’t Have Judge Persky To Kick Around Anymore

It’s hard to blame him for saying, “screw this, I don’t need to have my family go through this insanity.” It’s not that the voters who elected him to office have lost faith in him. It’s not even that the ridiculous petition of a “million” clueless feminists caused the system to give him the boot.

Not even the law professor who disgraced Stanford Law School for her stupidity and nastiness, and who swears she will persist in her quest to cleanse the judiciary of judges who won’t rule through the feminist lens, won the day. It’s that Judge Aaron Persky, who imposed a sentence that feminists felt was too lenient, decided he didn’t need to put up with any more of this crap.

The judge, Aaron Persky, of the Santa Clara County Superior Court, will be moved to the civil division in San Jose, Calif., effective Sept. 6, according to an announcement late Thursday.

“While I firmly believe in Judge Persky’s ability to serve in his current assignment, he has requested to be assigned to the civil division, in which he previously served,” the Santa Clara County Superior Court’s presiding judge, Rise Pichon, said in the announcement, which was obtained from the court on Friday.

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The One Who Got Away

People often ask if there’s a sure-fire, fool-proof way to beat a criminal case.  There is, but it’s not recommended.

While Mr. Libous was convicted last year of lying to F.B.I. agents and expelled from the State Senate, prosecutors have said that the statute of limitations barred them from charging him with the more serious crimes that were the subject of his lies: crimes like bribery and fraud.

Now, more than a year after his conviction, and some three months after his death from prostate cancer at 63, it might be said that time is again on his side. And it appears likely to help him, in the eyes of the federal authorities, get away with more, including the crime for which he was already convicted, despite his death.

You read that right. The trick is to die before the conviction is final. Ha! That’ll show ’em.

That is because Mr. Libous died after he filed his notice of appeal, but before it had been adjudicated. A seldom-used legal doctrine known as abatement ab initio, or abatement by death, allows the family or estate of a felon, under such circumstances, to move to have the conviction vacated and the indictment dismissed. Continue reading

Why Does Columbia Teachers College Hate “Black Boys”?

Prologue: It was more snark than serious that the New York Times had started publishing mad libs op-eds just to troll its readers. After all, one totally incoherent op-ed doesn’t make a trend. But there’s a second, this time by an associate professor at Teachers College, Columbia University, Christopher Emdin.  Poe’s Law? Trend? Or can the Times’ editors no longer distinguish rational positions from gibberish?

When dealing with a subject of some serious importance, and the failure of young black men to be adequately educated in public to achieve success in life, whether to go on to a college or find sufficiently fulfilling and lucrative employment, it’s a problem for everyone. When a person is vested in society, has a decent education or job, he will strive to maintain and improve the norms of society. If you’re doing well, you want to continue doing well, to do even better.

One of the things a criminal defense lawyer learns from years of representing young black men charged with crimes is that their lifestyle choices are framed by two primary influences: the first is that they can’t overcome the challenges of their youth. The second is that they have few alternatives. We can attack them for not being strong enough, smart enough, tough enough, for not rising above their circumstances, but that doesn’t help. Not everybody is Hercules.

Some aren’t that smart, and struggle with a lousy education born of myriad reasons, strong street influences that are far cooler and more alluring than the boring, unhip prospect of working hard in a crappy job for a pittance. Some are very smart, but the distance from 125th Street to the C Suite is too far to bridge. Continue reading

The 6th Circuit Finally Said The Magic Word: Punitive

Of the many legal fictions enjoyed by judges, few have done as much damage to as many people as calling sex offender registries “regulatory.”  The trick is that if it’s characterized as regulatory, then it’s not punitive. And if it’s punitive, then it opens a whole slew of constitutional rights that would render the concept unlawful. But if legislators squint and write the “r” word instead of the “p” word, and judges squint and agree, problem solved!

To see this game in action, we need only take a quick stroll down memory lane to Rainer v. Georgia.

Writing for a 5-2 majority, Justice Harold Melton rejected arguments that the provision, as applied to Rainer, was cruel and unusual punishment. Sex offender registry laws, Melton wrote, “are regulatory, not punitive, in nature.” “Because the registration requirements themselves do not constitute punishment, it is of no consequence whether or not one has committed an offense that is ‘sexual’ in nature before being required to register,” Melton wrote….

See what Judge Melton did there? Continue reading