Author Archives: SHG

The Volokh Question: Why Did You Stop?

One of the foremost law blogs on the interwebz, the Volokh Conspiracy, is now behind the Washington Post paywall.  We knew it was coming, so it’s not quite a surprise, but now that it’s happened, a pall is over the blawgosphere.  If that’s not bad enough, Radley Balko, one time Agitator who went legit, will be paywalled as well, but that’s another story.

Sure, the paywall is filled with holes, and VC posts are still available by RSS feed, but that kinda misses the point.  The Volokh Conspiracy was once a blog that offered some brilliant content, followed up by the mother lode of thoughtful commentary.  The commentariot there has taken a huge nose-dive into the toilet, and the content has devolved to posts by the principles of embarrassingly limited depth or flagrant advocacy from the likes of Stewart Baker and Paul Cassell.

On twitter, Orin Kerr asked a question, and since I like Orin very much, and appreciate all I’ve learned from him, I want to respond. Continue reading

The Case Against Pettiness

Following on the issue raised by the death spiral of Robert Earl Lawrence,  itself an offshoot in a way of Yale lawprof Stephen Carter’s critical admonition that we should make “no law you aren’t willing to enforce by death,” Paul Gowder at PrawfsBlawg offers an excellent (and far more comprehensible) perspective on trivial law and its impact on society.

To be clear, the concern is with laws that penalize ordinary behavior—behavior that many or most people do at least sometimes, either because that behavior is consistent with social norms (smoking a joint, not coming to a complete stop before turning right on red), or because it is easy to accidentally do the behavior (violate a complicated parking sign). And the worry is that such laws, when pervasively enforced, break the connection between genuine wrongdoing (in the sense of the violation of social norms, also in the sense of doing anything actually morally wrong) and negative interactions with the legal system.

When the law routinely penalizes ordinary folks for doing things that ordinary folks in the community do, or hammers people with large fines for understandable day-to-day screwups, legal punishment stops looking like a consequence of doing bad things to others, and the law stops looking like an expression of our collective sense of how we ought to treat one another.

Instead, it starts to look like a form of taxation, or a negative lottery, in the sense that the “lawbreaker” is one who just happened to have the bad luck to be in front of an official when acting like a normal person, and now has to pay the price. (Ed. Note: broken into paragraphs for readability)

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Tsarnaev’s Inconvenient Jury (Update)

Selection is scheduled to begin in the trial of the last living Boston Marathon bomber, Dzhokhar Tsarnaev.  The defense sought to delay jury selection as it needed more time to complete its preparations for trial, as well as move the trial to a location where there might be some hope of finding an impartial juror.  Judge George O’Toole Jr. refused.

O’Toole rejected the defense’s motion to delay jury selection, noting that it would pose too great an inconvenience to the more than 1,200 people who have been called in for that purpose. Mere inconvenience aside, delaying jury selection for too long could necessitate a re-summonsing, which would delay the trial for months. The trial has already been pushed back from a November start.

The “inconvenience” now is the by-product of the decision to move forward despite the defense’s requests for more time.  While the court’s concern for 1,200 potential jurors is slightly endearing, the system doesn’t exist for their convenience, but to provide the defendant with a fair trial. Then again, perhaps Judge O’Toole realizes that no amount of delay, no change in venue, is going to alter the outcome. Continue reading

No, Crazy Is Not A Capital Offense (Update)

Let’s get the bad stuff out of the way first. Robert Earl Lawrence was, well, nuts.  He was a sovereign citizen, and by definition, that places him squarely in the nutjob category.  But that doesn’t mean he should die for it.

Lawrence, described as being a sovereign citizen, was attempting to turn over a stray animal at the Dothan City Animal shelter at around 12:30 p.m., Eggleston said, but he became disorderly after he was told he couldn’t leave the animal without showing identification.

The context here matters. Lawrence brought a stray animal to an animal shelter.  That falls into the category of a pretty kind thing to do.  He was being a nice guy.  Even if his politics was off the wall, that doesn’t make him a bad guy, an evil person.  He’s kind to animals.  For a lot of people, that’s a pretty good indicator of the type of guy he is. Continue reading

Stop The Madness

One of the sorriest examples of academic cowardice has been the failure of law professors to publicly challenge the Department of Education’s Office of Civil Rights imposition of regulations on higher educational institutions to eviscerate due process in its war against the debunked “epidemic” of rape and sexual assault on campus.

A shining example of intellectual honesty appeared at Harvard, where 28 lawprofs stood up and challenged the university’s embrace of feminist fashion trends over the collateral damage of male students.  Nonetheless, the OCR concluded that Harvard violated Title IX, and the university reached a resolution with the agency, which included this remarkable condition:

Review any complaints of sexual harassment filed during the 2012-13 and 2013-14 school years to carefully scrutinize whether the Law School investigated the complaints consistent with Title IX and provide any additional remedies necessary for the complainants.

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Cops’ Response: Shooting Blanks

It’s not certain that these voices reflect the best that rank and file police in New York City have to offer, but there is a smell about them that leads me to think that it’s not happenstance that they showed up here and decided to offer rather long comments in defense of their position.

Maybe these are the talking points the union wants out there, the best defense the cops have to offer for their actions.  Maybe these are just the personal efforts of their writers, but I doubt it.  First came a comment by Kevin:

Funny how the only thing you mention in this article is the fact that cops are a disgrace and should let anyone walk all over them because the public pays their taxes. Police officers are the public as well, they pay taxes (more than most) to be treated with such disrespect. That is the sole problem, disrespect! No children these days are brought up with respect or morals. The people these days only care about themselves and no one else. Police officers all over the nation turned their back on the mayor of NYC because of his abandonment of the police, HIS POLICE! that same mayor also let the “public” down and turned his back on them when he let thousand upon thousands of protesters get violent and close down streets and bridges. Do you have any idea what the severity of that was? If a person has a heart attack they have 3 to 4 minutes to get to the hospital. Did the public care about the public then? No! We’re they assaulting police officers during their “peaceful” protests? Yes! This is by far the most ignorant and a mature article I have ever read. So hold the Pulitzer and the position at the New Yorker until you mature and figure out how to write the facts and not just your opinions!

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2014 Jdog Memorial Best Criminal Law Blog Post

This 6th annual Jdog Prize saw a turn in the practical blawgosphere, and not a particularly good turn.  In fact, I pondered whether the contest was still worthwhile, as the year saw few new criminal defense lawyers starting a blawg, while established blawgs saw fewer posts, some on my sidebar essentially dormant if not dead.

Before deciding to hold the Best Criminal Law Blog Post contest again, I asked my old buddy Bennett whether it was worth it, and he responded strongly that it was, that there were some great posts last year and they were worthy of recognition.  He was, of course, right, but that didn’t entirely answer my question.

It would appear that hard-core blogging is playing out.  Whether it’s because lawyers have decided that it’s just not worth their time, or that they’ve written all they feel compelled to write, or that they’re just not getting the level of feedback, or interaction, they used to get or want to get, is unclear.  As posts get more sporadic, it becomes harder to enjoy the synergy that we once enjoyed. Continue reading

And For What?

Mayor Bill de Blasio met behind closed doors with PBA boss Pat Lynch for a “private airing of grievances,” according to the New York Times.

The gathering, to which Mr. de Blasio had invited the union officials, appeared to yield no concrete results, providing no immediate balm for the fractious relationship between the mayor and his police force.

“Our thought here today is that actions speak louder than words, and time will tell,” said Patrick J. Lynch, the president of the Patrolmen’s Benevolent Association, who has been perhaps the most vocal critic of Mr. de Blasio in recent weeks.

Actions. Like job actions, such as reported by the New York Post as arrests “plummeted” in the week following the killing of two police officers. The union claims it had nothing to do with it, because that would be an unlawful job action, so it must have been a miracle that cops citywide somehow got the same idea in the head at the same time to show the City that if it questioned them, tolerated a challenge to their authority, the people of New York would pay for it. Continue reading

Dancing In The Streets

There is something called the “Ellen Dare Dance,” which sounds kinda fun and free.  Except in New York City, where police officers who aren’t Ellen DeGeneres fans see it as, well, a threat or an insult.  Clearly, something not to be tolerated as cops are busy showing respect and tolerance for the residents they risk their lives to serve.

Dancing.  We can’t have that.  When will New Yorkers appreciate how hard the police work to protect them?  On the bright side, they only threw the dancer, Alexander Bok, to the ground.  He lived. No big deal, right?

When The Snitch Turns

Whether one believes that Ronnie Coogle had a change of heart when his word was used to justify the killing of a guy who smoked some pot, it’s hard to come up with any other rational explanation for why a guy who always put his self-interest first would now risk his life. There just wasn’t any benefit in it. Yet he did.

A 50-year-old felon and drug addict, Coogle was the principal Tampa Police Department informer against at least five suspects this year. He conducted nine undercover operations. In their probable-cause affidavits, his handlers called him reliable. Even Tampa’s police chief praised his “track record.”

Coogle said they were all wrong. He said he repeatedly lied about suspects, stole drugs he bought on the public’s dime and conspired to falsify drug deals.

But as long as he was playing on the cops’ team, he was as solid as they come. Solid enough to send out the SWAT team after Jason Westcott. Continue reading

NYPD Compels A Bold Political Move (Update)

Of all places, the New York Times shows some fortitude in its editorial on the outrageous conduct of the New York Police Department over the past few days:

Mr. de Blasio isn’t going to say it, but somebody has to: With these acts of passive-aggressive contempt and self-pity, many New York police officers, led by their union, are squandering the department’s credibility, defacing its reputation, shredding its hard-earned respect.

Granted, the Times’ tongue-lashing remains tepid by normal measures, but it’s more forceful than anyone can reasonably expect of the mayor, the target of police threats, who has demonstrated little more than mewling pandering to police sensitivities, as if he might someday be loved not despised by the cops.

The New York Police Department is going through a terrible time . . . But none of those grievances can justify the snarling sense of victimhood that seems to be motivating the anti-de Blasio campaign — the belief that the department is never wrong, that it never needs redirection or reform, only reverence.

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Nothing Left To Compromise (Update)

The New York Times reports that Police Commissioner Bill Bratton finds himself in the position of negotiating a compromise between his police and the mayor of the City of New York.  The putative mission is to relieve the pressure created by the protest at the funeral of Rafael Ramos, the officer killed while sitting in his cruiser at the hand of a crazy.

The protest, officers in uniform turning their back on Mayor de Blasio during his eulogy, was not an exercise of free speech, but an act of insubordination and a manifest threat to the City. They will not tolerate the mayor’s “disloyalty.”

New York City mayors have long tussled with police unions, with off-duty officers rallying on the steps of City Hall or showing up at mayoral events with protest banners. But several city officials as well as current and former officers said the public protest by officers on Saturday at what was a highly ordered and solemn occasion appeared to have little precedent.

“You crossed the line,” said Eric Adams, the Brooklyn borough president, a Democrat and a former police officer. “We all played by one rule: that when you have that uniform on, you don’t get involved in the political atmosphere.”

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