Category Archives: Uncategorized

Provocation and Queer Fear

At Volokh Conspiracy, Eugene notes an amendment to California’s provocation defense to voluntary manslaughter.

Under U.S. law, killing someone is “voluntary manslaughter” rather than murder if the killer was (1) actually provoked into a rage by the victim, and (2) the killer’s reaction was seen as “objectively reasonable,” in the sense that the law empathized with the killer’s rage though not his conduct (which, after all, remains a crime, just a less serious crime).

While saying this is “under U.S. law” is unfortunate, given that this is a matter of state statute, and there is no such thing as “U.S. law,” it’s a fair generic explanation of the theory behind provocation.  But California’s law deals with a specific issue, one that (no doubt, surprisingly to many) is fairly common: men who are outraged to learn that the person with whom they just engaged in a sex act is not female, and thereupon react with extreme violence and kill the person.

The California Legislature has just passed AB2501, which provides,

(f) (1) For purposes of determining sudden quarrel or heat of passion [for purposes of the voluntary manslaughter test], the provocation was not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship. Nothing in this section shall preclude the jury from considering all relevant facts to determine whether the defendant was in fact provoked for purposes of establishing subjective provocation. Continue reading

The Outrage of the Victim’s Rap Sheet Must End

In the press conference addressing the killing of Akai Gurley by probationary Police Officer Peter Liang, Commissioner Bill Bratton made one thing absolutely clear: “the victim, Akai Gurley, had done nothing to provoke a confrontation with the officers.”

From the time of the shooting through the following day, the NYPD sought to excuse the killing by justifying why a cop would have a reason to be afraid of doing his job, but at least it shows the small degree of class, of integrity, by not following Rule 3 in the Cop Public Relations manual, smear the victim.  In an incident that left little to admire about the NYPD, this alone spoke well of its integrity.

By the next day, it was gone.

Gurley has 24 prior arrests on his record, police said.

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The Killing of Akai Gurley: A Mistake, Perhaps, But No Accident (Update)

There was no excuse offered. Akai Gurley did nothing, absolutely nothing, to cause probationary Police Officer Peter Liang to shoot him in the chest and kill him. Whether Gurley did anything wrong in his life before that, even the cops didn’t have the gall to try to taint him with priors so we wouldn’t feel too badly about his killing.  It wouldn’t matter anyway, but that rarely stops people from being stupid enough to connect unrelated dots.

No, Akai Gurley was shot dead for no reason whatsoever. His two-year-old daughter will have no father.  The job he was about to start with the city will be filled by someone else. He can’t do it. He’s dead. For no reason.

Police Commissioner Bill Bratton called it an accident.

The shooting, at 11:15 p.m. on Thursday . . .  But 12 hours later, just after noon on Friday, the New York police commissioner, William J. Bratton, announced that the shooting was accidental and that the victim, Akai Gurley, had done nothing to provoke a confrontation with the officers.

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Cosby In Context (Update)

One of America’s most beloved entertainers, Bill Cosby, is now not only a rapist, but a serial rapist.  As his lawyer, Marty Singer, correctly points out, most of the allegations now being raised aren’t new. Rather, they are debunked allegations renewed in the context of new social norms, where challenging such claims is viewed as a form of sexual abuse in itself. Victims can’t be blamed.

But the latest, victim number 7, provides an opportunity to appreciate how conduct that occurred (assuming it occurred) in one era is viewed through the prism of another era, and significantly misinterpreted.

In an interview on WPTV in West Palm Beach, Fla., the woman, Therese Serignese, 57, a registered nurse, accused Mr. Cosby of drugging and having sex with her after one of his shows at the Las Vegas Hilton in 1976 when she was 19.

The narrative of drugging a woman for sex is a recent one.  Today, there are roofies, drugs surreptitiously slipped into a drink to incapacitate a woman so she can be raped.  Concerns abound about men who will target a drunk or drugged woman as well, taking advantage of their incapacitated state.  In the context of today’s narratives, these are the images that come to mind when a woman talks of “being drugged.” Continue reading

The Dark Tactic of Stash House Stings

It works, right?  Isn’t that good enough?

“The conspiracy was real; the guns were real; the defendants’ intent to use them to violently rob a cocaine stash house was real; and the defendants’ criminal histories were real,” the federal prosecutors argued in their brief. The supposed stock of cocaine had to be set high, they said, to make the proposal credible.

How, anyone of good conscience must ask, can we feel badly for such defendants?  Well, the problem arises from the fact that these aren’t defendants caught engaging in crimes.  Rather, these are people who live and hang in poor neighborhoods, where the government sends its friends to troll for the miserable, the pathetic, the losers who might be enticed by visions of big money and an end to their misery. Continue reading

Your Emotional Rescue Meets Brown 25

Brown University was the site of a Janus Forum debate earlier this week on “How Should Colleges Handle Sexual Assault?” The debaters were Wendy McElroy, editor and “rape culture” skeptic, facing off against founder Jessica Valenti, an evangelist against “rape culture.”  The notion that such an issue could be subject to debate was more than Brown could stand. In response to student protests,

[Brown president Christina] Paxson declared in a campus-wide email that her counterprogramming, titled “The Research on Rape Culture,” will provide students with “research and facts” about “the role that community norms and values play in sexual assault.”

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Kickstart The End Of The Penalty

One of the questions often posed by people who are disturbed at what happens in criminal law is “what can I do”?  Here’s an answer: contribute to the kickstarter campaign to complete the document, The Penalty.

The Penalty is a 90-minute film that seeks to lift the lid on the human cost of the death penalty. Centered around three executions, the film pulls back the curtain on the people who are touched by capital punishment every day, but who are often far from death row. We follow the tentacles of the death penalty as they wrap their way around lawyers, innocent men, victims’ families and the political landscape.

The producer, Laura Shacham, who last year made a web series profiling death row exonerees, called One For Ten, is about half way through filming The Penalty.  They need money to finish the project.

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The Theft of Transparency

Not that there is anything new when it comes to the politicalization of views as to Ferguson, Missouri, and the killing of Michael Brown, but Paul Cassell at Volokh Conspiracy has added a new twist of extraordinary bias and cynicism to the mix.

It appears to be widely (although not universally) assumed that the grand jury will not return any charges against Ferguson, Mo., police officer Darren Wilson for shooting and killing Brown. Some persons sympathetic to the filing of charges have argued that this procedure is not “transparent.”  Part of the argument is that grand jury proceedings are typically kept secret — and it is expected that this proceeding will be no different.

But this claim overlooks the possibility that grand jury information can be released to the public.  And, indeed, the prosecutor supervising the Michael Brown grand jury has promised (in the event that no charges are filed) to try and make the grand jury information public as soon as possible. [Paragraph break added for readability.]

Well, yes.  St. Louis County Prosecuting Attorney Bob McCulloch has said he will try.  And, for reasons that serve McCulloch’s self-interest, there is no reason to doubt his word. Continue reading

Judge Buzz Arnold: No Harm, No Foul, No Chance

The argument took place in 2008, but it’s just coming to light now because terrorists.  Tim Cushing at Techdirt offers some highlights of the government’s view of how and why the government justifies its surveillance, contained in the just-released “oral arguments presented by Yahoo’s counsel (Mark Zwillinger) and the US Solicitor General (Gregory Garre).”

Included are such gems as this:

Zwillinger opens up the arguments by questioning the government’s methods of determining who should be placed under surveillance.

Why I show this to you is because I think it’s a perfectly fair question for you to ask the Solicitor General of the United States how a name gets on this list. This isn’t reviewed by a — the FISA Court. These names aren’t reviewed by the Attorney General of the United States. The difference between surveilling an account and exposing someone’s most private communications and not is how a name gets on this list; and all we know about it from page 47 of their brief, is that an intelligence analyst puts it on the list.

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How And Why Lawyers Are Killing Our Profession (Update)

I stumbled across a post by Dan Jaffe at LawLytics, a lawyer marketing company, that every lawyer needs to read.  Ironic for a legal marketer, Jaffe explains, in a very lengthy, but deeply substantive and nuanced fashion, how we are diminishing ourselves for a buck, and why that buck is going to others rather than us. Much as I occasionally touch on pieces of this problem, Jaffe lays it all out, chapter and verse.

The post is titled “How much is that lawyer in the window? The secret commoditization of the legal profession,” and he means it.  And he explains it.  Just to whet your whistle,  consider:

The internet has created a culture of instant gratification in consumers. The best lawyers know that if they aren’t available when a potential client wants to talk, a lesser lawyer will be there to take the call, and that many potential clients will not wait. To many potential clients the internet makes it impossible to tell the difference between excellence and mediocrity. And the more legal fees that flow to the mediocre lawyers, the more money they have to reinvest in marketing, and the dumbing down of the bar continues in a twisted mutant evolution that serves neither lawyers nor clients.

Given the length of Jaffe’s post, and your need to take the time to read it (rather than this), I’m cutting this short.  And for any of you bar association “listservs are cool tech” types, post a link on your listserv and tell the ten other goofballs to read it as well. Just do it.

Update:  Dan Jaffe responds by noting, after a generic thanks, that what I wrote about him “stuck in his craw.”

However, in reading his post, something he said stuck in my craw.  He referred to me as a “legal marketer.” While labels, especially objectively true ones, don’t generally concern me because I know who I am, I noticed that the context of Mr. Greenfield’s reference to me as a “legal marketer” did.

I completely understand, Dan, and would feel at least the same if someone called me a legal marketer.  And yet, what choice did I have?

Good News? The Cabbie Got Paid. Bad News? Everything Else

I’m going to go out on a limb here and suggest that Candice Padavick had no plan, after having gotten out of the cab after she was told the cabbie didn’t take plastic, gone up to her apartment on Collins Avenue in Miami Beach, of returning to pay her $16.90 fare.  Once she undressed and put on a robe, she was calling it a night.  It’s wrong to beat the cabbie out of a fare.

But then, a security guard in her building, Juan Camona, a gentleman by any standard, gave the cabbie a $20 to cover the charge.  It’s unfortunate that it came after the cabbie called the police about the fare beater.

According to court documents recently obtained by NBC, Padavick took a cab home one night several months ago and was unable to pay him with a credit card, so she had to go to her apartment to get him his money.

“It was $16.90. I wont forget. I tried to pay with a credit card and when I tried to pay he said no no I only take cash,” Padavic told reporters. Continue reading

The Bright Line of Prosecutorial Discretion

The topic is immigration.  The question is highly political.  And yet, what comes of it may well prove critical to criminal law at its most mundane.  From the New York Times Room for Debate:

Frustrated by congressional inaction on immigration, President Obama is said to be considering executive orders to protect up to 5 million unauthorized immigrants from deportation, including parents of children who are citizens or legal residents and even more undocumented immigrants who came to the United States as children.

But does the president have the power to decide unilaterally whether to exempt millions of immigrants from deportation?

Before we go any farther, keep your opinions about immigrants, pro or con, to yourself.  Just because the Times says this is about immigration doesn’t make it so.  Rather, the fact that the issue arises in the context of immigration, because it’s not like the president, who, according to Attorney General Holder, strongly believes that crack cocaine should be sentenced on a one to one basis with powdered cocaine, would be capable of using the same argument to accomplish that goal.  Continue reading