Category Archives: Uncategorized

The Curmudgeon’s Dilemma

My fellow curmudgeon, Mark Herrmann, miffs the Slackoisie over at Above The Law by raising a hated presumption.

I’ve never met you, but I assume that you’re incompetent.

I realize that sounds a bit harsh, but it’s time someone told you the truth.

Why do I assume that all new people I meet are incompetent?

No, that’s too easy. Here’s the better question: Why am I right to assume that everyone’s incompetent, and why is that a helpful way to go through life?

A nice person functions in society by giving other people the benefit of the doubt.  We assume people are honest, kind, hard-working and caring.  We assume they know what they’re doing and desire to do whatever it is they do well.  We like kitteh videos too.

But Mark’s point doesn’t apply to nice people. It applies to lawyers.  Well, at least lawyers when they’re being lawyers.  They can be nice people the rest of the time, when they’re on their own time. But when they’ve got their lawyer hat on, it’s a different matter. Continue reading

The Chokehold Comes After A Lethal Move

Swirling around the controversy in the NYPD killing of Eric Garner was the use of a maneuver called a “chokehold” by those charged with giving names to the things cops do to people.  I say “swirling,” because some don’t see what happened as a chokehold, others don’t see it as choke-y enough to have done much damage to their lay eye, and still others watching the video decline to say with certainty that it was the cause of death.

Then there are those who wonder why Officer Daniel Pantaleo didn’t just pull his weapon, blow Garner’s head off and end the issue without risk of getting his uniform dirty.  After all, he could have just complied, so he was asking for it.

Of course, everyone believes they’re entitled to an opinion on such matters, because this is America and knowledge is a highly over-rated commodity.  NYPD Police Commissioner Bill Bratton saw a chokehold.  A former police officer and instructor here saw a chokehold.  But you didn’t. Well, your opinion matters too.  Just not as much as someone who actually knows something about the subject.

The “chokehold” uses the forearm to compress a person’s windpipe such that it cuts off the flow of air to the lungs, which in turn can cause death by asphyxiation. It’s considered a lethal maneuver, and its use was prohibited by the NYPD Patrol Guide in 1993Continue reading

See Something? Who Are You To Say Anything?

In a surprising burst of lucidity, Ross Douthat’s New York Times column, The Parent Trap, offers some excellent beef before reaching his requisite listicle.

For instance, they might have ended up like the Connecticut mother who earned a misdemeanor for letting her 11-year-old stay in the car while she ran into a store. Or the mother charged with “contributing to the delinquency of a minor” after a bystander snapped a photo of her leaving her 4-year-old in a locked, windows-cracked car for five minutes on a 50 degree day. Or the Ohio father arrested in front of his family for “child endangerment” because — unbeknown to him — his 8-year-old had slipped away from a church service and ended up in a nearby Family Dollar.

Or (I’m just getting warmed up) like the mother of four, recently widowed, who left her children — the oldest 10, the youngest 5 — at home together while she went to a community-college class; her neighbor called the police, protective services took the kids, and it took a two-year legal fight to pry them back from foster care. Or like the parents from two families who were arrested after their girls, two friends who were 5 and 7, cut through a parking lot near their houses — again without the parents’ knowledge — and were spotted by a stranger who immediately called the police.

Or — arriving at this week’s high-profile story — like Debra Harrell, an African-American single mother in Georgia, who let her 9-year-old daughter play in a nearby park while she worked a shift at McDonald’s, and who ended up shamed on local news and jailed.

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Eric Garner’s Killing: The Mindset Is The Issue

NYPD Commissioner Bill Bratton, to the surprise and appreciation of many New Yorkers, didn’t pull a Ray Kelly.  Instead, he immediately condemned what clearly appeared from the video of Eric Garner’s seizure and killing to be a prohibited chokehold.  It was just one of many problems with the needless killing, but former Commissioner Kelly would never have been man enough to admit the obvious.

Bratton moved on his cops, for the chokehold if nothing else:

The officer who placed Mr. Garner in what appeared to be a chokehold while trying to put him under arrest, Daniel Pantaleo, was ordered to turn in his badge and gun; another officer who first approached Mr. Garner, Justin Damico, was reassigned to desk duty; and the roles of the other officers at the scene who helped wrestle Mr. Garner to the ground are under review by the Police Department’s Internal Affairs Bureau as investigators await the results of an autopsy by the medical examiner’s office.

In the past, it’s unlikely the names of the cops involved would have been released, because police deserve privacy, according to their defenders, to go with their special rights.  Instead, media statement number 6 would be trotted out, about how we need to reserve judgment, about how an investigation will be conducted that will take at least 3 years, about how if you don’t like cops, next time call a criminal.  The usual. Continue reading

FACE Time (Update)

There is no one as passionate as a mother in defense of her child, and indeed, when that child has suffered the indignities of the legal system in one of its many permutations, the need to do something can be overwhelming.  Often, this passion serves as a driving force for change, for good.  But passion is just part of the equation.

Emails arrive announcing new organizations dedicated to good causes all the time.  Often, they’re a bit disconcerting, like when the Marshall Project went public with its goal of being the savior of criminal justice because no one had been doing or writing a damn thing until it showed up.  It’s not merely insulting to those toiling in the fields long before the saviors arrive, but it reflected the arrogance of one niche (journalists) presuming to know better than those who actually did the very work they could only see from afar.

The other day, another new organization appeared on the scene, with a press release that came as a bit of a shock.  It was Families Advocating for Campus Equality (FACE).

Fargo, ND – Families Advocating for Campus Equality (FACE), a newly formed not-for-profit organization dedicated to ensuring fairness and due process for all parties involved in allegations of sexual misconduct on college campuses, was officially launched today, it was announced by Sherry Warner Seefeld, president and one of the organization’s co-founders. Continue reading

Teaching Law, For Real

Lawprof Brian Clarke raised another dirty little law school secret problem at the Faculty Lounge that implicated an issue that non-academics have long pondered: what’s so horrible about real world experience?  He questioned why significant practice experience was not valued in tenure track professors:

I was unpleasantly surprised by the prevailing wisdom regarding practice experience when I went to the meat market in 2010.  Back then the conventional wisdom seemed to be as follows:  Ideal:  zero to 3 years of practice; Acceptable: 3-5 years of practice; Potentially Disqualiying: more than 5 years of practice up to 10 years of practice; Disqualifying: more than 10 years of practice.

This is not an absolute rule, there always being an exception (like Suffolk Law’s Jeff Lipshaw, who practiced 26 years), but it’s certainly the general rule.  They’ve even got derogatory expressions to characterize it, “retiring to teach” being a description to suggest that old guys want to ease out of the hard work in the trenches to the cushy job in the Ivory Tower to spend their last years making big bucks while telling war stories to kids.

This issue has taken on added relevance over the last year or more given the changes taking place in legal education and in the larger legal economy.  (See, for example, this post from PrawfsBlawg, and this one and this one from Conglomerate, this one and this one from ProfessorBainbridge, and, of course, a vast number of message board comments [including some on the foregoing posts]).  There is a greater focus on the need for experiential education for all law students (due to ABA mandates and otherwise) and on the aspiration that law schools produce something close to “practice ready” lawyers.

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Indicting The Messenger

In the future, everyone will be a cop for 15 minutes.

– Apologies to Andy Warhol

And if you don’t fulfill your duty, the government will indict you.  United Parcel Service decided it was a better business move to pay off the government, at a price tag of $40 million.  Federal Express refused. The government has now indicted FedEx for its refusal to capitulate.  Via Mike Masnick at Techdirt:

Apparently, FedEx was unwilling to fall on its sword and cough up a similar amount to the US government, so the DEA and DOJ have announced they’ve gotten a grand jury to indict the company for delivering drugs associated with internet pharmacies. You can read the full indictment, which tries to spin a variety of stories into evidence that somehow FedEx “knew” what was in those packages.

Maybe it did. Maybe it didn’t. So what?  FedEx is in the business of delivering packages. There is no crime in that.  It is not in the business of assessing the lawfulness of the contents of the packages it delivers.  And this is what pissed the government off. Continue reading

A Voice Against Academic Hysteria

There was no good reason to discuss the false rape claims of Crystal Magnum against three young men on the Duke Lacrosse team, or the outrageous conduct of prosecutor Mike Nifong.  No matter what I might say, Brooklyn College history professor K.C. Johnson would have already said it, and said it better.  His blog, Durham-in-Wonderland, was the mother lode.

Johnson announced that he is done, which makes it a particularly good time to note both the service he has provided all of us, and the impetus for his blog in the first place.  As will become apparent, it is both a critical problem and, sadly, a problem that has continued to grow and pervade all walks of academic life.

When I first started writing about the lacrosse case, . . . I did so in reaction to the Group of 88 statement. Then (and now) I considered the statement an indefensible betrayal by professors of their own school’s students, an action that contradicted many of the basic values on which American higher education rests.

The Group of 88 statement was Continue reading

NYPD Kills Eric Garner on Video (Update)

From Carlos Miller at Photography is not a crime:

New York City police officers killed a man Thursday after he had broken up a fight between two other men, insisting on placing him in a chokehold and slamming his head to the pavement, piling on top of him as he gasped for air and as he continually told the cops he couldn’t breathe.

The entire incident was caught on video from a witness who kept telling the cops that the man had not committed a crime.

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The Grand Jury As Sword

Former Chief Judge of the Court of Appeals, Sol Wachtler, offered that a grand jury would indict a ham sandwich if a prosecutor wanted it to.  That the grand jury was conceived as a buffer between the authority of the state to prosecute at will and the right of a citizen not to suffer prosecution in the absence of probable cause is long forgotten.

Grand jurors, ordinary citizens whose civic virtue extends as far as facilitating a prosecutor’s job, are hardly skeptical about accusations put before them, but rarely quite as viciously engaged in the inquisitorial role as they were when Erica Jean Dockery testified before the Harris County grand jury in 2003.  Via the Houston Chron’s Lisa Falkenberg,

They seemed convinced that Ericka Jean Dockery’s boyfriend of six months, Alfred Dewayne Brown, had murdered veteran Houston police officer Charles R. Clark during a three-man burglary of a check-cashing place, and they didn’t seem to be willing to believe Dockery’s testimony that he was at her house the morning of the murder. Continue reading

Nothing Stands In The CHP’s Way When It Gets Caught Dirty

The video of Marlene Pinnock being pummeled about the head on the side of a highway by the unidentified California Highway Patrol Officer (because confidentiality matters, sometimes) was outrageous enough.  But in contrast to the experience of anyone who has ever watched a cop show on television, the shock when they learn that the police don’t actually investigate most crimes, but rather arrest someone if they’re lucky enough to trip over them, this time an investigation will be done.  Oh yes, this time, the CHP will show its mad investigative skillz.

Except not with regard to the cop who beat Pinnock, but Pinnock, the victim of the beating, who was arrested for viciously attacking the cop’s fists with her face.

But so many questions remain unanswered, and no investigative agency worth its salt would let that happen, so the CHP obtained a search warrant for Pinnock’s medical records; Continue reading

Voting With My Feet

Dr. SJ made an appointment for me with a dermatologist.  I hesitate to use his name, as I can’t say for sure that he deserves to be maligned by the likes of me.  I didn’t want the appointment, and I avoid such appointments to the extent possible because nothing good ever comes of them. Dr. SJ sees things differently, and insisted I go.

When I arrived ten minutes early to the appointment, I did so begrudgingly.  But I was there, despite my belief that anywhere else would have been a better place to be.  I went to the receptionist, but before I could give her my name, she instructed me to put my name, reason for coming, insurance information and some others stuff that eludes me, on a piece of paper sitting atop the receptionist’s desk.

I said no.

She said I must.  I said that “must” may not be the word she intended, given that she was unarmed.  She said, “it’s our policy.” Continue reading