Category Archives: Uncategorized

Burton’s Button

What made lawyer Andrea Burton wear a Black Lives Matter button to Judge Milich’s Youngstown courtroom? She wanted to. When it comes to an expression of political opinion, it requires no more reason than that. Which is why some found it outrageous that Judge Milich held Burton in contempt for her refusal to remove the button.

Burton argued that her First Amendment rights overrule the Supreme Case law — and Milich’s discretion — and refused the his instructions because she didn’t want to remain “neutral to injustice.”

There is a serious question as to why Judge Milich felt it necessary to flex his judicial muscles over a BLM button. It’s not as if Burton’s button was disruptive to the decorum of the courtroom. If anything, the judge’s demand that the button be removed was more disruptive at the time, and certainly more disruptive in the long haul as it becomes a source of debate and anger.

Whether this is properly described as making a mountain out of a molehill, it was a choice made by the court that Judge Milich didn’t have to make. Like Burton’s choice to wear the button, it was Judge Milich’s choice to make a big deal of it. But he did. Continue reading

[Enter Default] President

The New York Times’ newest public editor explains the anomaly:

They don’t come in swarms but they land at a steady clip, these reader letters probing why The Times refers to some women as “Ms.” and others as “Mrs.” This week, readers were circling the convention coverage, suspicious as to why Donald Trump’s wife, Melania, was labeled “Ms.” Trump while the president’s wife, Michelle Obama, was deemed a “Mrs.” One person writing in suggested that whoever made this decision must have intended to disparage the Trump marriage.

The Times disparage Trump? Pshaw.  But with Hillary Clinton a mere heartbeat away from the presidency, a position that has been subject to the title “Mr. President” ever since George Washington decided “your awesomeness” wasn’t appropriate, what to do?

It’s the women who get to choose their courtesy titles at this modern institution. According to The Times’s internal rules, women will be referred to as “Ms.” unless they’ve elected to be a “Mrs.” Michelle Obama chose Mrs. back when her husband was seeking the White House. As for Melania Trump, she has yet to express a preference (thus the default “Ms.,” although reporters have been asked to determine her preference).

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Harris County’s Devon Anderson Strips Naked

What the Houston district attorney’s office did to a rape victim known as “Jenny” was nothing short of atrocious.

In Houston, Keith Hendricks was on trial for the rape of “Jenny.”

Jenny, who suffers from bipolar disorder, couldn’t continue her testimony on Dec. 8, 2015.

Court transcripts show she was incoherent, broke down and ran from court saying she’d never return.

Which is understandable. Having to relive that experience would be tough on anyone, let alone someone already suffering from mental health issues. The trial was adjourned until January, but the prosecutor, Nicholas Socias, wanted to make sure that Jenny would be available to testify. He asked for a body attachment, which the judge granted. Initially, she went to the local mental hospital, where eventually her condition improved. As soon as her mental health stabilized, she went home to her family for the holidays she was locked up in the Harris County Jail, where she remained until January 14, when the trial was over.

And Jenny did not do well in the Harris County Jail. Continue reading

P.O. Jonathan Aledda: A Cop’s Truth

This was the best they could come up with:

The officer “thought Kinsey’s life was in danger,” John Rivera, head of the Miami-Dade Police Benevolent Association, said at a news conference.

The idea is that if they throw words against the wall, others will take them seriously, or at least seriously enough to discuss them as if there was some potential they could be an accurate reflection of what happened. This is, of course, a gambit. The police union knows that its job is to cover its cops, and its efforts to test how gullible the public is have often proven shockingly effective.

This all refers to the shooting of Charles Kinsey in a ubiquitous video, with Kinsey lying in the road, hands up, trying to explain that the autistic man next to him was playing with a toy truck and not a gun. Or even a Wii. Kinsey was picture perfect in his conduct, compliant to a fault. So, Aledda shot him anyway, with a long gun from a distance, because you can’t get too close to an autistic man with a toy truck or it could be thrown at him and take his eye out. Continue reading

Kopf To Greenfield: You’re An Asshole SJW

Not exactly, but sort of.  As a prelude to his discussion of the responsibilities of criminal defense lawyers toward their clients who snitch, which largely involves keeping them alive, Judge Richard Kopf called out a slice of lawyer:

Before I get to my “tips” on snitches, I have two points.

First, if you are the kind of criminal defense lawyer who says he or she will never represent a snitch then you are probably an asshole unworthy of the designation lawyer, let alone criminal defense lawyer. We have plenty of Social Justice Warriors and not enough criminal defense lawyers to represent people they would otherwise despise.

Some background seems in order. While rats (my preferred epithet) have always been around, the phenomenon of racing to the U.S. Attorney’s office to be the first to snitch didn’t become a “thing” until 1989, after Mistretta, when the federal Sentencing Guidelines were held constitutional, and obviously long before the Supreme Court’s Booker decision, when they announced, “only kidding.”

As a result of the pervasive use of conspiracy to charge what were previously state drug prosecutions in federal court, in combination with the absurdly harsh guidelines sentences, criminal defense lawyers told their clients that nobody wins and they have no choice but to rat if they ever want to see sunlight again. The rush to snitch was on. Continue reading

Without The Box, Employers Are Left With Naked Racism

The law of unintended consequences is brutal. An idea that seems to make enormous sense, that is well-conceived and well-intended, flips on you to bite you in the butt. It’s so unfair. After years of struggle to eliminate a terrible thing, it ends up worse than before. This is the experience after Michigan banned the box.

“Ban the Box” legislation seeks to open doors to employment for people with criminal records by barring employers from asking about records on employment applications. More than 20 states and over 100 municipalities have passed such laws in recent years, some of which govern private employers.

But a major new study released today by researchers at the University of Michigan and Princeton University points to a serious unintended consequence of these laws: While they may indeed improve the prospects of people with records, this gain comes at the cost of encouraging a substantial increase in racial discrimination by employers.

“This consequence is clearly unintended—in fact, Ban the Box is often presented as a strategy for increasing black men’s access to employment,” said Sonja Starr, professor of law at the U-M Law School. “Unfortunately, we think our results strongly suggest that when it comes to this goal, it has backfired.”

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Grieving: Freddie Gray and Marilyn Mosby

There are two unquestionable data points. The first is that Freddie Gray shouldn’t be dead. The second is that the prosecution of police officers for Freddie Gray’s death by Maryland State’s Attorney Marilyn Mosby has been an abject failure of massive proportions. Some will insist there’s a connection between these two data points. After all, if there is a wrongful death of a person in the hands of police, there must be a criminal cop who must be convicted.

Unfortunately, that isn’t how law works.  It’s not just a matter of the usual stumbling block, the “reasonably scared cop rule,” but that a criminal conviction requires proof of criminal conduct.  The “but for” rationalization that many rely on as a substitute for evidence isn’t good enough to get a conviction. And indeed, every case taken to trial by Mosby has failed to result in a conviction.

The failure to obtain a conviction does not mean that the death of Freddie Gray is unworthy of being grieved.  But is the failure to obtain a conviction deserving of Mosby being grieved? George Washington law prof John Banzhaf has aggressively taken the position that it does. Continue reading

Obama To Police: “We Have Your Backs”

Yes, the President of the United States, in the aftermath of the police murders in Dallas and Baton Rouge, has gotten off the fence. Up to now, he spoke in irreconcilable tones in an effort to offend no one, no side, by arguing that police were needlessly killing black men while praising the police for the great job they were doing, when he just said the job they were doing was needlessly killing black men.

But that was then and this is now. If the GOP convention rhetoric about crime and police is disconcerting, then this open letter from the president should be a big eye opening to those who refuse to recognize that this isn’t a one-party issue. Continue reading

This One Cool Trick Could Save Your Life

Black men getting killed by cops? Cops getting killed by black men? Waterbury Police Chief Vernon Riddick, Jr., wants to end the bloodshed, bring us closer together in the spirit of cooperation. Who doesn’t want cooperation? Who doesn’t want to survive? All you have to do is cooperate. Radley Balko asks if that’s so hard?

I understand the argument that you shouldn’t mouth off to cops. I get the argument that you shouldn’t needlessly provoke them. I certainly agree that you shouldn’t physically resist them. It could get you killed.

But this is a police chief who, in a town hall meeting spurred by a rash of shootings both by and of police officers, is asking that citizens submit without question if an officer requests to search a vehicle, home or person. In the interest of “cooperation,” he’s asking a black audience to give up their Fourth Amendment rights.

Riddick isn’t just a police chief, but an African American police chief. When he walked into the Mount Olive A.M.E. Zion Church to speak with “a mostly African-American crowd of more than 200 people,” it wasn’t cop-splaining, but a person who shared the lived experience of being a black man in America. Would he steer them wrong? Continue reading

Cynical Capture? Not All Criminal Defense Lawyers

At Popehat, Ken White tells a story to show the distinction between the cynicism of belief that comes from having been told too many lies and taking defendant’s claims seriously enough to go through the effort of finding out whether they’re true.  It’s a curious point:

Just as prosecutors are captured by the system and its culture, so are defense attorneys. It is currently fashionable for defense attorneys to say “clients lie” and “most clients are guilty.” I wouldn’t agree with either proposition. Everybody lies; I don’t think clients lie more than anyone else in terrifying and stressful circumstances. Humans tend to remember a version of events that puts them in the best light, something we normally regard as a mere venal sin. It’s just that criminal defense scenarios require a level of precision and accuracy that most human interactions don’t.

In his anecdote, his client swore he was innocent and set up.  Ken’s initial reaction to his client’s claims was disbelief.

Client swore to me the gun and drugs found in his dorm-room dresser weren’t his. He said that someone — perhaps his roommate? — must have planted them. Sure, I thought. A BPU student acquired a gun and hard drugs and decided to use them to frame some rando — a rando who was, perhaps, not completely unfamiliar with drug culture. That makes perfect sense.

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Gender Assignment and Re-Assignment, Okie Edition

For the simplistic and overly emotional, issues are always easy.  But the person in charge of assigning dorm rooms at the University of Oklahoma is finding out that fortune cookie solutions aren’t nearly as easy to implement as they are to spout.

Amy Buchanan, director of marketing and communications for OU Housing and Food Services, emphasized the university’s commitment to its students.

“The University of Oklahoma is committed to providing a safe and comfortable living environment that enhances the overall learning experience of our students,” Buchanan said. “There may be some circumstances when a student’s success at the University of Oklahoma depends on the ability to live in a specific type of environment. Students who are concerned that they will be housed in a situation that could impact their personal development, ability to sleep and/or study at OU can apply for special consideration.”

That certainly sounds nice. Peace, love, happiness and, of course, accommodation. What could possibly go wrong? Continue reading

Too Much And Too Little Trust At A Very Reasonable Price

The law loves science. It doesn’t really understand science, and certainly can’t tell valid science from junk, but it loves that it removes the human variable and shifts responsibility off of untrustworthy human sensibilities and onto something irrefutable. We want proof so that nagging sense that we could be wrong will be eliminated, and science gives us that.  All for $2, which is a pretty good deal.

Field testing for narcotics is an improvement over guessing, which was the way it was done before. Not perfect, but certainly better than leaving it up to a cop’s “training and experience.” And so, a test kit was developed that would fall far short of perfect, but better than “it looked like drugs to me.”

The test . . . involves dropping a suspected drug sample into a vial of cobalt thiocyanate, which is supposed to turn blue in the presence of cocaine. But as Gabrielson and Sanders note, “cobalt thiocyanate also turns blue when it is exposed to more than 80 other compounds, including methadone, certain acne medications and several common household cleaners.” That is not the only cause of false positives:

Other tests use three tubes, which the officer can break in a specific order to rule out everything but the drug in question—but if the officer breaks the tubes in the wrong order, that, too, can invalidate the results. The environment can also present problems. Cold weather slows the color development; heat speeds it up, or sometimes prevents a color reaction from taking place at all. Poor lighting on the street—flashing police lights, sun glare, street lamps—often prevents officers from making the fine distinctions that could make the difference between an arrest and a release.

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