For those who care to debate the heady question of whether law is a business or profession, of the merit of non-lawyer, who have neither an ethical duty nor fiduciary relationship, ownership, meet Emanuel Roy and Peter Mayas. They’re lawyers, but of the sort that follows the business path rather than the profession path for which I often advocate.
From the Sun-Sentinel, via Walter Olson at Overlawyered:
Patrick Coulton’s lawyers ripped him off to the tune of $275,000 and left him to rot in prison.
The bizarre legal soap opera began in March 2008 when Coulton was arrested on federal drug and money-laundering charges for smuggling cocaine and marijuana.
His family hired Roy, who was a lawyer in New York and Florida at the time, and Roy brought his friend, Mayas, a Plantation attorney, on board too. Continue reading
A recent column in the Harvard Crimson by student Sandra Y.L. Korn raised a firestorm by challenging the foundation of academic freedom:
When an academic community observes research promoting or justifying oppression, it should ensure that this research does not continue.
The concept isn’t novel, the elevation of political correctness over the search for unpleasant truth. I had this weird inkling that it was related to something here long ago, but I couldn’t put my finger on it. I shrugged it off. At my age, forgetting things is like breathing.
Then an email arrived. Brief and unsigned, the only indication of its sender being its gmail address of “lattice.theory.” Continue reading
Having followed Kerri Kaley’s struggle to enable herself and her husband to fight charges of dubious merit since the circuit, an old question arose: Would the law that grew like a fungus in the bad, old drug days of forfeiture law that gave rise to such discreditable decisions as Monsanto, be perpetuated now that they were being applied to people who society didn’t inherently despise?
The Supreme Court answered the question in Kaley v. United States, a split decision by Justice Elena Kagan: Hell, yes!
In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the seizure’s legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury’s prior determination of probable cause to believe they committed the crimes charged. We hold that they have no right to relitigate that finding. Continue reading
It’s not as if New York Law School Professor Robert Blecker hadn’t staked his claim as the intellectual leader of the Kill ‘Em Now crowd already. He’d been out there, pounding the pavement to drum up business in advance. So when the review copy of The Death of Punishment, published by Palgrave Macmillan, arrived, I was all ready to rip it to shreds.
It opened as I would have expected of anyone who sought to take ownership of the joys of capital punishment, immediately forcing me to wonder what trauma happened to Blecker in his formative years to stunt his intellectual growth and leave him an emotional cripple. Maybe it was the simplistic notions instilled in him as a child, eye for an eye, revenge, retribution?
But a lousy thing happened on the way to hating Blecker’s book. Aside from the inexplicably warped view of capital punishment, there was a grudging respect for him. He was no mental midget, not by a long shot. This was a very smart man. Continue reading
Anyone who has ever sought to persuade another that their feelings on a subject are irrational knows that it’s a waste of time. Feelings aren’t based on reason; they’re feelings. Ultimately, it always devolves into, “well, that’s how I feel,” and the time spent discussing it is lost forever.
We used to be a society that embraced the “sticks and stones” mantra, which has since fallen into disrepute. For many, it’s been replaced with the assertion that hurt feelings are every bit as real and painful as broken bones, and for them, this is not an issue worthy of discussion. That’s how they feel.
But the substitution of tangible harms with emotional harms has become a driving force in the call for new crimes outlawing and punishing things that give rise to hurt feelings. Continue reading
An oft-repeated meme on the interwebz, and certainly one of my favorites, comes from a Peter Steiner cartoon, first published in The New Yorker on July 5, 1993.
Bearing in mind that Steiner recognized, more than 20 years ago, that we rarely have a clue we’re dealing with online, he was prescient. But just how prescient is made clear by Glenn Greenwald at The Intercept: Continue reading
Criminal defense lawyers are often accused of being callous, if not despicable, toward the victims of our clients’ crimes. We know they happen, and we may well feel the pain caused to others, but we shut that out of our mind in order to fulfill our function to our client. We have a job to do, and we do it.
But in Tarrant County, Texas, television station WFAA-8, an ABC affiliate, did something unusual. After Stewart Richardson* offered his apology, via a reporter, to the parents of young boy, 2 years old at the time he was left in a vegetative state because of Richardson’s drunk driving, the boy’s mother, Loubna Khader, asked WFAA if they would accompany her to the jail, with cameras shooting, to confront Richardson directly.
The station agreed, and the result was an extraordinary video. Continue reading
Derek isn’t the only Jeter making news around these parts, even if these parts are extended to reach Bloomfield, New Jersey. Marcus Jeter was looking at five years, facing charges of “trying to elude [police], resisting arrest, [and] assaulting a police officer.”
What makes this remarkable is its unremarkability. No one, but no one except his lawyer and those who cared about him, would have blinked an eye had Marcus Jeter gone down on the charges.
It all began when police were called to Jeter’s home in Bloomfield, New Jersey. After a brief conversation, Jeter left his residence as no charges were filed.
Jeter was driving down the Garden State Highway when everything suddenly changed. Continue reading
Bill Keller will soon step away from the New York Times to lead the Marshall Project and save the world, but as a columnist, the opportunity to start early is open to him and he’s already taken his first/parting shot:
I’ll begin by making his excuses. The president’s powers in this area are limited. The action (and there is a lot of it right now) is mostly at the state level. His first term was entangled in economic crisis and health care. This president has faced tireless and often petty resistance from the Republican House on almost every initiative. Historically Democrats have risked being Willie-Horton’ed if they don’t maintain a tougher-than-tough-on-crime posture. And African-American constituents — who are also disproportionately the victims of crime — are not necessarily bleeding-heart voters. In short, it was probably naïve to assume that Obama was going to be the Criminal Justice Reform President.
There is little choice but to begin with excuses, Continue reading
I, for one, welcome our new Computer overlords.
– Ken Jennings, upon losing to Watson on Jeopardy
Unbeknownst to most, one of the start-ups in the Big Data tech arena of law is a company called Lex Machina. For the moment, it’s limited to the IP niche of law, but what it seeks to do is rather astounding:
We mine litigation data, revealing insights never before available about judges, lawyers, parties, and patents, culled from millions of pages of IP litigation information.
We call these insights Legal Analytics, because analytics involves the discovery and communication of meaningful patterns in data.
In other words, they purport to be able to cull from the pages of court documents Continue reading
In my effort to understand and appreciate the controlled rhetoric of sex offenses, traditional and newly conceived, I’ve raised questions about the definition of rape and the definition of revenge porn. While it’s fine to non-lawyers to cry “rape is rape,” the fuzziness of feminist rhetoric makes it difficult, if not impossible, to nail down what they’re talking about so that anyone who hasn’t OD’d on the Kool-Aid can discuss intelligently the merit of their view.
One reaction that comes with regularity, and the anger that suggests that anyone who doesn’t grasp and embrace it is, by definition, the scum of the earth, is the phrase “rape culture.” It’s a catch-all justification for feminists, and spit at people as if no further explanation is needed. If one doesn’t “get” rape culture, it’s proof of their misogyny. Not only do I not get it, but I didn’t really know what it meant as it was be thrown my way. I may be thick, but it wasn’t part of my worldview.
Wikipedia, which is beyond dispute as a font of wisdom, has a “rape culture” page. The definition is: Continue reading
Checking Radley Balko’s morning links, I came across a bullet point that simply said
• “The Sorry State of Indigent Defense”
How could I resist? It was criminal defense lawyer clickbait, and I fell for it. The link took me to The Crime Report, another of those self-important websites that claims to be “your complete criminal justice resource,” as determined by the John Jay College of Coppery and Shoe Repair. What it lacks in depth, it more than makes up for in superficiality.
The post was by Sheldon Krantz, whose description at the bottom of the post says:
Sheldon Krantz is a Distinguished Visiting Professor of Law at the University of Maryland Carey School of Law. For close to two decades, he was a litigation partner at DLA Piper, Continue reading
The initial reaction to a huge win is always the same: Elation. It doesn’t happen often, and it means one more innocent life is snatched from the belly of the beast. And so the Court of Appeals decision in People v. Adrian Thomas, suppressing his confession made after hours of coercive interrogation, was cause for celebration.
Inasmuch as we conclude that defendant’s inculpating statements were not demonstrably voluntary, we reverse the order of the Appellate Division affirming defendant’s conviction (93 AD3d 1019 [3d Dept 2012]), grant defendant’s previously denied motion to suppress those statements, and direct a new trial.
Sure, it would have been sweeter had the Court phrased it differently, that the “inculpating statements” were the product of manipulation, coercion, compulsion, but “not demonstrably voluntary” will do. After all, without the confession, there is no evidence of guilt. The “new trial” is a formality. They’ve got nothing. Continue reading
Via the Daily News’ crack court reporter, Oren Yaniv, a decision was issued in New York’s first “revenge porn” prosecution:
New York’s first “revenge porn” case was nixed.
A Manhattan judge dismissed criminal charges Tuesday against a man who shared naked photos of his girlfriend on his Twitter account and also sent the nudes to her sister and employer.
“The Court concludes that defendant’s conduct, while reprehensible, does not violate any of the criminal statutes under which he is charged,” Criminal Court Judge Steven Statsinger wrote in a decision published Wednesday.
The opinion, People v. Barber, starts with a shaky premise: Continue reading
At the New York Times Room for Debate, the issue on the table was “Sentencing and the ‘Affluenza’ Factor,” which baits the question from the outset with the “affluenza” silliness that was a creation of the media rather than a rationale adopted by the court.
This month a judge in Texas ordered a 16-year-old boy who killed four people in a drunken-driving crash to enter rehabilitation as part of 10 years of probation she imposed without a jail sentence. A defense psychologist had said the teenager suffered from ”affluenza,” his judgement stunted by his pampered, privileged upbringing.
The case has angered many who have said that a poor person would have been imprisoned, without the same considerations. To what extent should life circumstances affect sentencing?
Despite the nuance of the question, Continue reading
The First Rule of Policing claims another victim. Via WSB-TV in Atlanta:
The family of a 17-year-old shot and killed by a Euharlee police officer has hired an attorney, and they say he had a remote control in his hand. They say it was not a gun.
Christopher Roupe, 17, was in the ROTC at Woodland High School and wanted to join the Marines. His friends said he looked after them.
The police went to Roupe’s home to serve a probation violation warrant on his father. No information is provided about why the warrant issued or why he was on probation, but warrants issue, for significant reasons or trivial ones. Continue reading
In a very provocative claim, Penn lawprof David Abrams contends that we’ve been wrong this whole time. Via Dan Markel at PrawfsBlawg:
Almost every teacher of criminal procedure is aware of the idea of the “trial penalty,” which conveys the sense that defendants who exercise their right to a trial will invariably get a worse result if convicted than if they plea bargain.
Comes now (or relatively recently at least) David Abrams from Penn with an article that slays the sacred cow of the trial penalty by providing, you know, data. And the data is the best kind of data because inasmuch as it’s true, it is SURPRISING data. Specifically, Abrams argues that based on the study he performed (which originally appeared in JELS and now appears in a more accessible form in Duquesne Law Review), the data supports the view that in fact there’s a trial discount not a trial penalty. Continue reading
A few days ago, an email came in from my friend, lawprof Ellen Yaroshefsky at Cardozo, with the first report from its Youth Justice Clinic. Among the many recommendations for dealing with youth incarcerated on Riker’s Island, foremost was the elimination of solitary confinement.
For an adult, long-term solitary confinement is torture. For a child, it is an inexcusable outrage. In considering sources to support these contentions, there are too many, too solid, to select one. If you feel compelled to demand support for the assertion, go Google it. There is plenty to read. In my view, the proposition that solitary confinement of children is inhumane requires no additional support.
The use of solitary confinement isn’t to protect the lives of corrections officers, but to teach prisoners who’s the boss. Continue reading
Will Baude at VC/WaPo pointed to a fascinating article by Florida lawprof John Stinneford, entitled “The Illusory Eighth Amendment.” As much fun as the 8th may be, the part that made this particularly curious had little to do with it, but rather with the Supreme Court’s punting in Miranda v. Arizona.
Discussion of Miranda these days is largely limited to two aspects, the first being that it’s a prophylactic rule, and the second that the Court expected that once given, no one would ever talk to cops again. After all, could it be any clearer that anything you say can and will be used against you in a court of law? Of course, experience has shown otherwise.
The surprise here, according to Baude, is that Stinneford raises what Miranda failed to address: Continue reading
Governor Andrew Cuomo took what a New York Times editorial called “a bold step” by promoting the notion that educating prisoners will stem the tide of recidivism.
On Sunday, Gov. Andrew Cuomo of New York took a bold step to restore some common sense to this contorted debate, announcing new financing for college classes in 10 state prisons. The initiative will offer inmates the opportunity to earn either an associate’s or a bachelor’s degree over the course of two to three years.
There are two things that come of a stint in prison. A person can leave more bitter and hate-filled, learning from fellow inmates how to be a better criminal and care less about others and the law. Or, a person can leave with some hope of a law-abiding future, putting past transgressions behind him. One tends to prevent recidivism. The other does not. Continue reading