Category Archives: Uncategorized

The Constitution, Huffington Post Version

It’s not that Justin Curmi doesn’t deserve some sympathy for his struggles. It couldn’t have been easy for him.

Justin Curmi is a graduate from Baruch College in Manhattan, New York. He received his Bachelor’s degree in Philosophy and Political Science. His college career was a battle due to personal battles with dyslexia. These battles have forced him to learn how to teach himself difficult subject matters without help. Through anguish and painful moments, he has overcome major hurdles that dyslexical presented to him. Now, he is looking towards unorthodox thoughts and methods to analyze political matters.

Aside from an excessive use of the word “battle,” there is no apparent reason why he was “forced” to “learn how to teach himself difficult subject matters without help.” One of these battles appears to be writing ability. Another, reasoning ability. The bio would be understandable but for one thing: this is Curmi’s bio at the Huffington Post, where Curmi has been given the opportunity to use this soapbox to explain his understanding of the Constitution.

Thus far, Curmi has written three posts on the subject.  His first deals with the Preamble: Continue reading

Mind The Gap: Outrage For The Wrong Reason Redux

If you didn’t know better, you would scream that this can’t be.  After all, this wasn’t a case of some post hoc regret, or a couple of beers used as an excuse to claim lack of consent when there was consent aplenty, but no personal responsibility. As the Guardian explained, this was the real deal.

An Oklahoma court has stunned local prosecutors with a declaration that state law doesn’t criminalize oral sex with a victim who is completely unconscious.

The ruling, a unanimous decision by the state’s criminal appeals court, is sparking outrage among critics who say the judicial system was engaged in victim-blaming and buying outdated notions about rape.

What sort of insanity can this be?  Does this prove how the courts care nothing about rape and sexual assault?  Did the Oklahoma Court of Criminal Appeals blame the victim? Did they care nothing about this unconscious young woman?  Outrageous!

Except it’s a lie. The court did nothing of the sort. Continue reading

Satire And Baekdal’s Sad Feelings For Jeff Jarvis

There was, according to your perspective, a hysterically funny/horribly wrong clash on the internet about somebody named or not named Jeff Jarvis.  One Jeff Jarvis (not the pediatrician, @drjeffjarvis, but the egomaniac who thinks he’s the only Jeff Jarvis in the world).

The fake Jeff Jarvis published a piece about the real Jeff Jarvis in Esquire, and the real Jeff Jarvis, a journalism professor, used his clout to get Esquire to remove it. Which, naturally, caused all hell to break loose, especially when the real Jeff Jarvis made law-noise, because what about his rights?!? For a ‘splainer, see Ken White’s dissection at Popehat.

In defense of his friend’s honor, a fellow named Thomas Baekdal propounded the curious challenge of arguing that satire is only satire if you tell everyone it’s satire.  Otherwise, it’s a lie.

The first thing you think when hearing about this is ‘that it can’t be right’. How can a professor of journalism be instrumental in taking down a satiric article? Doesn’t that go against everything we know as journalists? Aren’t we supposed to protect satire as a form of free speech?

Well, yes. But this wasn’t satire.

Continue reading

When Felons Vote

Terry McAuliffe did something rare in politics. He did something. He did something that was sure to be unpopular in certain circles. And yet, he did something.

Gov. Terry McAuliffe of Virginia used his executive power on Friday to restore voting rights to more than 200,000 convicted felons, circumventing the Republican-run legislature. The action effectively overturns a Civil War-era provision in the state’s Constitution aimed, he said, at disenfranchising African-Americans.

Whether McAuliffe’s originalism is accurate or facile historical revisionism, so trendy these days, isn’t particulary important. All but two states restrict voting by felons, so it’s not about Virginia’s particular brand of racism.  Then again, tying a move to racist motives makes it more palatable to supporters and more difficult to oppose, which explains why McAuliffe is a governor (even if it didn’t help Bob McDonnell enough).

Naturally, the New York Times applauded this bold move, showing its love for McAuliffe’s confession: Continue reading

But For Judges, They Wouldn’t Be Dead In The Name Of Science

This isn’t the sort of thing anybody wants to say, but I hope they were guilty. Because the alternative pushes the boundaries of even the hardest hearted bastard.

The Washington Post published a story so horrifying this weekend that it would stop your breath: “The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.”

What went wrong? The Post continues:“Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far.” The shameful, horrifying errors were uncovered in a massive, three-year review by the National Association of Criminal Defense Lawyers and the Innocence Project.

Chillingly, as the Post continues, “the cases include those of 32 defendants sentenced to death.” Of these defendants, 14 have already been executed or died in prison.

Continue reading

The Killer Tomato’s Revenge

Trevor King had a marketable commodity to sell. He was an Atlanta police officer, which meant he could beat people with apparent impunity, which was what Walmart was buying. There was no reason why Walmart couldn’t hire and train its own personnel to perform the loss prevention function, but a cop comes with benefits.

After all, King was trained at the expense of the people of Atlanta. He had a shield paid for by the people of Atlanta. He had a gun paid for by the people of Atlanta. And anything he did in the performance of his side job would be covered by his blue brothers.  And they did.

Representatives for the Atlanta Police Department provided an incident report saying Carnegay pushed past the loss prevention officer and tried to push past King when he was asked to return the stolen items. King said he hit Carnegay with the baton only after he ignored commands to get on the ground and tugged on King’s gun belt in a struggle.

“Upon completion of the investigation Mr. Carnegay had a receipt for a tomato, and it appears that he either got another one, or replaced the one that he had without letting the store know about it,” the report said. “Also in Mr. Carnegay’s black bag was set of nunchuks.”

The nunchuks, wholly irrelevant to anything beyond their potential to taint Carnegay as a martial artist or potential terrorist, is a great touch. Since he apparently lacked the similarly irrelevant but always convenient prior criminal history with which to smear, the best the cops could do was nunchuks. Why would a legit guy have nunchuks in his bag at Walmart? Of sure, he could have been on his way home from a work out, but he also could be a bad dude. See how it makes you wonder? Continue reading

What A Difference A Day Makes, Kansas Edition

But it couldn’t be more obvious.”

–Non-lawyers on what the Constitution means, Daily, 1789-2016

It’s not that lawyers disagree with the premise that the law should be clear, precise and comprehensible to everyone. I know, you think we keep it obtuse so that you have to pay us to explain it to you. Nice tin foil hat. And you read the words, just like we read the words, and it’s all obvious to you.

Why doesn’t everybody else see it when you can see it so clearly?

Before you tell me how wrong I am, and how Humpty Dumpty nailed it, go back to Kansas, Dorothy, where the Supreme Court explained: Continue reading

Is “Under No Circumstances” Acceptable, Judge?

Gems keep coming out of the papers in the battle over the discovery in Jay Michaud’s child porn case.  It’s already come out that the government doesn’t trust prosecutors enough to tell them the truth, because they might turn to the dark side one day and become defense lawyers.  And the government’s been lying to judges because it’s just too easy, since judges will believe anything they say.

But what happens when a judge orders the government to disclose something that government would prefer to keep to itself?  Brad Heath provides the answer:

 

Continue reading

When Is Enough Enough? Finality v. Legitimacy

It was bad enough when Congress passed the AEDPA, the Anti-Terrorism and Effective Death Penalty Act of 1996, that included the functional death of the Great Writ, but even when the Supreme Court holds a law unconstitutional, the poor schmucks in prison cells for having broken it still don’t get to pack their bags to go home. Crazy, right?  Not so, argues my favorite prosecutor, Andrew King, at Fault Lines:

This is not some diabolic scheme to keep people in jail on unconstitutional charges. Rather it is consequence of the rules promoting finality in judgments. Eventually, everyone involved in the matter needs to have confidence that the judgment is final and can now move on with their lives. Granted, though, that inmates do not really get to move on with their lives until their sentence is up.

But eventually memories fade, people die, victims want to move on and heal, and evidence is lost or spoiled. It can become practically impossible to retry some cases after enough time elapses. So, finality of judgment often promotes just and desirable ends, sometimes even when some aspect of a criminal case changes constitutional directions after conviction.

The competing interests are finality versus fairness. It’s not that people argue the virtue of keeping people imprisoned for violating an unconstitutional law. It’s that all good things must come to an end or nothing will ever be final. Continue reading

Why A New York Law Office?

The Second Circuit was asked a pretty straightforward question: why should an attorney admitted to practice law in New York and New Jersey, but whose primary practice is in the Petroleum State, be required to have a physical office in New York? The claim was that it violated the Privileges and Immunities Clause of the Constitution, art. IV, § 2, which putatively allows residents of one state to enjoy the rights given residents of another state. Because, we’re all Americans, right?

The court held that New York Judiciary Law § 470 was not unconstitutional.  Well, of course not, and for a bunch of good reasons, like the ability to effect personal service on an attorney who just ruined your life because of incompetence, or to retrieve your file when the lawyer took your money then did no work on your case or failed to appear in court. Lots of good reasons. Tons of them. Except those weren’t the reasons upon which the court ruled.

Instead, the basis for the court’s conclusion was:

As this history demonstrates, the in‐state office requirement was not enacted for the protectionist purpose of burdening nonresident attorneys in practicing law in New York.  Rather, it was enacted to ensure that every licensed New York lawyer, whether a state resident or not, could practice in the state by providing a means for the nonresident attorney to establish a physical presence in the state (and therefore place for service) akin to that of a resident attorney.  A statute enacted for such a nonprotectionist purpose is not vulnerable to a Privileges and Immunities challenge.

Continue reading

But Comments Can Be Mean and Hateful

When Above the Law decided to eliminate its comments, I suggested it prefaced a shift in direction from its last ten years of lurid T&A content to its new focus on insipid social justice-y clickbait. I think some of the folks there are angry with me, even unfollowed me on the twitters, for revealing their secret plan.

But then, the New York Times Room for Debate raised the issue as well.

Many newspapers and online media companies have begun disabling comment sections because of widespread abuse and obscenity. Of course, that vitriol is not meted out equally: The Guardian analyzed its comments and found the 10 most abused writers of the past decade were female and/or black. (The Times moderates comments in an effort to keep them on-topic and not abusive.)

Have comment sections — once thought to be a democratizing force in the media — failed?

Continue reading

Corey Who?

The Palm Beach Post revealed that there is audio of Corey Jones’ murder.

An audio recording of the controversial shooting of Corey Jones by a Palm Beach Gardens police officer six months ago does exist, The Palm Beach Post has learned, and it doesn’t completely match what the officer told investigators.

Corey who?  Just a dead black guy on the side of the road who had the misfortune of his car breaking down.  Nothing to concern yourself with, especially when compared to critical matters of racial injustice, the papercuts of oppression that are so painful and horrible that they demand our complete attention rather than, say, the murder of Corey Jones.

Quick, crank up the outrage machine. I hear there’s a white guy in dreadlocks who might get away with it. And don’t worry your pretty heads about Corey Jones. He’s dead. He no longer feels any pain, unlike you sad papercut survivors.