Category Archives: Uncategorized

If It’s “Constructive,” It’s Not Journalism

Stephanie West Allen sent me a link to a wikipedia page the other day to alert me to a new “thing” called “Constructive Journalism.”  At the top of the wiki page, it read, “This article has multiple issues.”  That was an understatement.

This article is written like a personal reflection or opinion essay that states the Wikipedia editor’s particular feelings about a topic, rather than the opinions of experts.

Why? Because it was front loaded with malarky.

Constructive Journalism is an emerging domain within journalism that is slowly getting grounded within academia and involves the field of communication that is based around reporting positive and solution-focused news, instead of revolving around negative and conflict-based stories. It aims to avoid a negativity bias and incorporates findings from positive psychology research to produce novel frameworks for journalism.  Continue reading

Around The Jail In 80 Days: Andrew Domino Got Lucky

Andrew Domino has a few things to be thankful for. After 80 days in the clink in Frisco, his case was dismissed.  That there was evidence that the accusation against him was a lie. But most importantly, that it happened in San Francisco.  That’s because the Public Defender there is Jeff Adachi. That’s because his office is adequately funded. That’s because his staff is good. No, excellent.

From the Public Defender’s press release:

Andrew Domino, 25, was released from San Francisco County jail Tuesday after
prosecutors dropped all charges against him. He lost his job and parental rights during his
incarceration, said his attorney, Deputy Public Defender Eric Quandt.

Domino’s legal saga began Jan. 30, when his then-girlfriend reported he grabbed her
throat during an argument. Police noted that the girlfriend had no signs of injury and
declined medical treatment. Domino was arrested for misdemeanor domestic violence but
remained out of custody.

Eight days later, the woman went to police with terrifying text messages she claimed
were from Domino, including threats to tie her up naked and beat her to death in the back
of a public housing complex, and to kill their infant child.

Continue reading

Judge Block’s Curious Parsimony

Eastern District of New York Senior District Court Judge Frederic Block is something of an enigma. In his book Disrobed, he straddles a fence between boldness and, well (and I mean this in the nicest possible way), cluelessness.

While Judge Block tells this story to show his boldness, fairness and concern, stepping up to reveal impropriety, it inadvertently reveals that he was totally unaware of what was happening around him. Given that this was well-known by every criminal defense lawyer in the county, it’s disconcerting that he had no clue until he read about it in the paper.

It’s as if he means well, but the entire world happens around him and, until someone smacks him in the head about it, just doesn’t register. What makes this even more astounding is that Fred Block, the lawyer, was the guy who won Clayton, giving rise to the motion for dismissal in the interest of justice. It was a huge win, a great win. And Fred Block did it.

He’s been a federal judge since 1994, when President Bill Clinton nominated him to fill Eugene Nickerson’s seat, so it’s not as if he’s just discovered that sentencing is part of a federal judge’s job.  Yet, his decision in United States v. Nesbith seems to reflect an epiphany. Continue reading

Nicholas Kristof And The Comfort of Ad Hominem

Nicholas Kristof, the noted racist and sexist token neocon columnist at the New York Times, tried a thought experiment.

In a column a few weeks ago, I offered “a confession of liberal intolerance,” criticizing my fellow progressives for promoting all kinds of diversity on campuses — except ideological. I argued that universities risk becoming liberal echo chambers and hostile environments for conservatives, and especially for evangelical Christians.

As I see it, we are hypocritical: We welcome people who don’t look like us, as long as they think like us.

It’s rare for a column to inspire widespread agreement, but that one led to a consensus: Almost every liberal agreed that I was dead wrong.

“You don’t diversify with idiots,” asserted the reader comment on The Times’s website that was most recommended by readers (1,099 of them). Another: Conservatives “are narrow-minded and are sure they have the right answers.”

Continue reading

Bond. Jane Bond

The remake of Ghostbusters with four women in the lead roles gave rise to a backlash because of its politically correct casting, which was then exacerbated when it was hooked to Hillary Rodham Clinton’s “woman card” candidacy.

To the surprise of Sony, Ms. DeGeneres announced on May 17 that her talk show had booked Mrs. Clinton — a friend, political ally and repeated past guest — to appear Wednesday on an episode for which she had already scheduled the “Ghostbusters” stars Melissa McCarthy, Leslie Jones, Kristen Wiig and Kate McKinnon….

But the not-quite-joint appearance came as less-than-welcome news to Sony, whose marketing team has been fighting to tamp down what it sees as a misogynistic, Internet-based assault on the movie. The first trailer for the new film, released in early March, became the most disliked trailer in YouTube history after a coordinated campaign by a group of mostly male naysayers.

Sony wants its movie to make money. If it can trade off the current trend of gender politics, great. After all, why else would they cast four women? But that doesn’t mean they believe in the political statement being imposed upon its movie, or that they want the movie to be inextricably connected to the candidacy of a woman for president. Continue reading

The Team Sport of Criminal Defense

Got a call from a law prof who was considering bringing a Qui Tam action (whistleblower suit) against a New York 18-B lawyer.  Section 18-B of the County Law provides for private lawyers to represent the indigent and be compensated by the county.

She told me of the things this lawyer did, pretty outrageous but for the fact that this was a common, bordering on pervasive, problem.  This shocked the prawf, who asked why other lawyers and judges don’t end this atrocity, which is not only tantamount to stealing, but extremely damaging to the client. The short answer is because lawyers don’t want to rat out someone on their team. Sometimes the thief is a friend. Sometimes he’s just a nice guy, aside from the fact that he’s a thief or incompetent.

And then there is the best, and worst, excuse: other lawyers know. Judges know. If they say nothing, why should a lawyer on the same team? Why should someone on the same side evoke the ire of his teammates when others don’t bother?

A few years ago, then-NACDL president Lisa Wayne wrote about this in the Champion, where she decried criminal defense lawyers being critical of their “brothers and sisters”: Continue reading

Abelove Played The Gap And Sabotaged The Prosecution Of A Cop

Did Troy Police Sgt. Randall French murder 37-year-old DWI suspect Edson Thevenin?  Maybe.

French told investigators that he fired eight rounds from his service weapon, killing Edson Thevenin, a 37-year-old DWI suspect who was unarmed. French opened fire when Thevenin’s car rolled into the officer’s legs, pinning him against a police cruiser following a brief pursuit, according to Troy police officials.

Two people who told police they witnessed the shooting, Keith Millington, 26, of Cohoes, and Phillip E. Gross III, 35, of Troy, told investigators they did not believe the officer was in imminent danger when he fired the rounds through Thevenin’s windshield. Millington told investigators he was very close to the incident and saw Thevenin’s car roll forward after the shots were fired, according to a person briefed on his statements to investigators.

If nothing else, there is a good chance that French fired eight bullets for no good reason, and that the “car roll” excuse was a lie. And even so, there remains a logical gap between killing Thevenin and the excuse, since killing a driver doesn’t prevent a car from rolling, and is likely to cause it to happen, as the witnesses claimed it did. But that’s just logic, which plays no particular role in “split second decisions” made by cops with guns. Continue reading

How Can You Tell When A Lawyer Is Lying?

When your world consists of unicorns prancing on rainbows, where nobody ever questions or challenges anything, it’s ripe for the pickin’s. And Derek Bluford picked and picked. And picked. You will think ill of him when you read the details of his crimes as set forth by Bob Ambrogi, but before you over-react, consider this.

For a man who is still a year shy of his 30th birthday, Bluford has found success as an entrepreneur, first starting California Legal Pros (CLP), a company that markets various legal services to both consumers and lawyers. then QuickLegal, a service that provides on-demand legal advice to consumers, and then most recently QuickLegal Practice Management, a cloud practice management platform for lawyers.

In 2014, Bluford was named a Techweek Los Angeles LAUNCH competition champion and was  recently selected to appear on the popular ABC television show Shark Tank. (As far as I can tell, he never actually appeared on any segment that was aired.)

Not too shabby, eh?  There are tons of adherents of the Future of Law gods who would give their left testicle, if they had one, to be in Bluford’s trendy square-toed shoes. Continue reading

Eight Justices And A Balancing Test

In the afterglow of the Supreme Court’s decision in Foster v. Chatman, one thing was painfully clear. The chasm between how the decision was viewed by those who actually pick juries and those who see law through a more distant lens was huge.  Why, in the face of academics and advocates cheering the wondrous outcome of ruling against the racist use of peremptory challenges by prosecutors to cleanse a jury of blacks, were criminal defense lawyers so, well, underwhelmed.

In his ground level explainer of the decision, Andrew Fleischman captured the problem:

It’s time to stop patting ourselves on the back for our “freedom.” For the occasional crumb of liberty that drops from eight unelected lawyers. We’ve replaced constitutional guarantees with an unwieldy pile of balancing tests.

I added the emphasis. Sue me. This is brilliantly insightful (which is my way of saying I wish I wrote those words, but I didn’t and he did). This is what the back-patters don’t get. In the trenches, where law actually happens and people’s lives are destroyed, we work with rules. Hard rules. Bright line rules. Black letter law.  Continue reading

Peter Thiel, Hero Of The Big Lie (Update)

I was asked by a reporter yesterday whether there was any First Amendment scholar who would back up the notion that Hulk Hogan’s lawsuit against Gawker didn’t violate the Free Speech and Press clauses of the Constitution. “Absolutely,” I replied, “but that’s because they’re willing to lie and have an agenda to push.” I was unhelpful.

Now that Peter Thiel has been outed as financier for Terry Bollea, the personality split from the wrestling clown, Hulk Hogan, in his suit against Gawker, the media was hot to trot on litigation financing, a concept that has been around for a while now, even if it hasn’t been on anyone’s front burner. Champerty and maintenance were once illegal. Barretry still is in most places.

Like most things legalish, if one can spin it to one’s advantage, to serve one’s agenda, people deny the downside and promote the virtue of their lie. It’s the American way, the end justifies the means when you like the end. Many who thought poorly of Gawker were happy to suspend the Constitution even though its application was obvious to anyone willing to be honest about the First Amendment.

It turns out that Thiel, who simultaneously supported free press when it was the sort of free press he thought worthy, had mounted a covert war against Gawker for its subsidiary, Valleywag, outing his sexual preference.  Continue reading

Peter Thiel Was Hulk Hogan’s Pay Pal

How often do you get to think about champerty and maintenance these days?  The words ring vaguely from the first year of law school, but they play little role in modern litigation, as they are archaic notions, that some outsider would finance litigation, whether for a piece of the action or other reasons. Those “other reasons” could be a belief in a socially utilitarian outcome, or to vindicate some personal butthurt.

Enter Peter Thiel, the co-founder of PayPal and a billionaire as a result. Thiel had a special hate on Gawker. Not like your hate because it’s such a horrible, disgusting, low-brow online media outlet reflecting our taste for the sordid. Thiel’s hate came from a Gawker subsidiary, Valleywag’s, effort to out him.

“Valleywag is the Silicon Valley equivalent of Al Qaeda,” Thiel said at the time.

Somebody really hated Gawker, and had the money to turn his hate into lawfare. Then came some clown in a bandana, and boom! Continue reading