Because Even Bad Law Makes For Good Warrants

The excuse was that the Baton Rouge Police Department takes complaints about its officers very seriously.  That, according to BRPD spokeswoman Mary Ann Godawa, is why the “department uses unenforceable laws to gain information.”

It began with an email to the mayor about a cop asleep on the job. Maybe.

The initial complaint was somewhat innocuous — a photo pulled from Facebook of an officer apparently pretending to be asleep in his patrol car while on duty.

Whatever this means, the next step was abundantly clear.

BRPD, according to department spokesman Cpl. Don Coppola, first responded to the sender with an email suggesting that if the potential whistle-blower was 1) a regular citizen, he or she could be charged with defamation or 2) if a BRPD cop, he could be in trouble for violating the chain of command.

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The Marshall Project’s First Victim: Defense Lawyers

There was no announcement in the New York Times when SJ went live, but I’m no Bill Keller, former executive editor of The New York Times.  The Marshall Project, on the other hand, had yet to do anything when it proclaimed itself the savior of criminal justice in America. That was worthy of a New York Times announcement.

It went live with a two-part, more than 9,000 word, examination of how the one-year deadline under 28 U.S.C. §2254-5, Clinton’s compromise of the Great Writ in the Antiterrorism and Effective Death Penalty Act of 1996, created a morass of rules that served to wreak havoc with post-conviction challenges.  This is nothing new to those of us who are either familiar with criminal law or care about the issue.  The law ends with the provision:

The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.

Will anyone read those 9,000 plus words who isn’t already well aware of the problem?  Who knows. But it doesn’t hurt to put this on the front burner, even if its old news.  And if it takes Neil Barsky’s promotional skills to do so, so what? Continue reading

History, As Written By The Losers

Adrien Chen offers a counterfactual history of Anonymous at The Nation, and twitted about it the day the group hacked the twitter account of the Ku Klux Klan, outing members in typical Anonymous fashion.  Chen’s point is that Anonymous may be today’s heroes, but that ignores its history.

To a large extent, Chen critiques a new book by McGill professor, and Anonymous supporter, Gabriella Coleman:

Her new book, Hacker, Hoaxer, Whistleblower, Spy: The Many Faces of Anonymous, is an artful advertisement for Anonymous, bolstered by endless spools of chat logs collected over six years embedded with Anonymous, during which she became essentially an honorary member.

As a narrow oral history, the book offers interesting anecdotes and insider information about a little-understood topic. But in arguing that Anonymous is an exciting new model of political action, Coleman exaggerates Anonymous’s achievements, downplays crucial failures, and is blind to the ways this supposedly novel way of organizing protest rests on bad old myths. Hacker, Hoaxer, Whistleblower, Spy helps us understand how well-meaning and intelligent people can fall for the Anonymous mystique, and exactly why that’s a bad thing.

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A Safe And Orderly Protest in Ferguson (Update)

Among the many things that protest organizers in Ferguson, MO, are not anticipating is an indictment of Police Officer Darren Wilson.  Had he not been a cop, he would have been indicted by close of business the day after Michael Brown was killed. But he is a cop. And he wasn’t indicted.  And he won’t be. And everyone knows it.

While the rest of us have gotten back to our regular routine, protests continue in Ferguson without 24/7 cable TV news coverage.  On the 100th day, protesters conducted a “die in.” It was a dramatic representation, but most of us were too busy contemplating the utility of Kim Kardashian’s butt to pay attention. Life goes on.

But the announcement that the grand jury will “no true bill” Darren Wilson will be coming soon, and those who have not forsaken either the killing of Michael Brown or the opportunity to use his death as part of a broader protest of the dehumanization of young black men by police are preparing for it.

Several dozen people gathered in a dim church basement here on Thursday night to share plans for what to do if a grand jury chooses not to indict the white police officer who shot Michael Brown, an unarmed black youth, three months ago. Among their ideas was to descend in large numbers on the nearby county seat of Clayton at 7 a.m. on the day after the grand jury’s announcement to snarl business. Continue reading

Thought Rape By The @NYTimes, Courtesy of Yale Law’s Jed Rubenfeld (Update x3)

In one corner, Jed Rubenfeld, a professor of criminal law at Yale Law School, formerly of the United States Attorney’s office in the Southern District of New York.

In another corner, the New York Times, the paper of record, the Grey Lady herself.

And in between, every person who read this bizarre and absurdly irresponsible op-ed, entitled “Mishandling Rape.”  Almost every “fact” alleged in the piece is either false, baseless or grossly misleading.  At the same time, Rubenfeld’s “fixes” cover nearly every conceivable base from claiming rapists almost always get away with it while falsely accused rapists are wrongfully convicted.

OUR strategy for dealing with rape on college campuses has failed abysmally. Female students are raped in appalling numbers, and their rapists almost invariably go free. Forced by the federal government, colleges have now gotten into the business of conducting rape trials, but they are not competent to handle this job. They are simultaneously failing to punish rapists adequately and branding students sexual assailants when no sexual assault occurred.

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Prisons, Off The Hook

In posts at Hercules and the Umpire, Nebraska Senior Judge Richard Kopf has posed questions relating to the use of empirical proxies to ascertain the likelihood of recidivism.  One questions why poverty, of highly correlated with recidivism, shouldn’t be considered.

While some have seen his raising this question as a reflection of his disdain for the poor, and by extension, minorities because of their disproportionate representation among the poor, I see it as an effort on his part to find a better, more reliable, methodology to sentence than what is used now.  Judge Kopf is big on empiricism.

The current method, which might be best described as “gut sentencing,” may have its virtues in that it allows advocates to use whatever factors present themselves, and to make as persuasive an argument as possible that the sentencing factors of §3553(a) are best served by a particular sentence.  That said, it remains, without a doubt, a hit or miss proposition.

By raising the question of poverty as a proxy, which fails in my opinion for a variety of reasons ranging from “correlation not proving causation,” to its inadequacy as a proxy (say, a 74% reoffend correlation rate, statistically significant for empirical purposes, means 26% of defendants will be sentenced to a longer sentence than parsimony would allow, which is just plain wrong), to its placing the full weight of recidivism on the defendant.  “What,” you ask? Continue reading

Avvo Avarice

When I reviewed Avvo’s latest effort, Avvo Advisor, my perspective was whether this notion, clients reaching out to lawyers for a 15 minute consultation for $39, could provide a meaningful service to clients.  Clients. That’s where my head went.

But as Sam Glover at The Puddle relates, I may have completely, totally missed the point.

But now I realize that’s not really the point of Avvo Advisor. Although some clients will certainly get the advice they need, it’s really a lead-generation service for lawyers. Granted, lead generation services for lawyers are a dime a dozen. I get please-write-about-our-company requests from lead-generation companies almost daily. They mostly follow a similar model: the company finds the potential clients, you pay a fee for each “lead,” and you do the legal work. The problem is that a lot of the leads are tire-kickers looking for free advice or just dead-ends (wrong jurisdiction, wrong practice area, etc.).

Duh. What was I thinking?  So this isn’t a means of providing inexpensive, quick legal advice to clients at all, but just another lead generation gimmick designed to eliminate the tire-kickers, the freebie question callers, by sucking $39 out of the naïve and making them pay the freight for lawyers to use the 15 minutes to throw on their hotpants, strut down the boulevard and score the case? Continue reading

The Idiot’s Guide To Fixing Parole

Just when it appeared that the New York Times’ Room for Debate was finding its way back to relevance, it veered off a cliff and fell to its brutal, painful death.  This happened in a “debate” it calls “The Parole Paradox.”

The question posed:

With the increasing notoriety of cases in which prisoners have proved their innocence, some parole boards have permitted the release of inmates without the traditional requirement that they admit their guilt, if there is strong evidence of wrongful convictions.

Should prisoners for whom there is substantial evidence of innocence be required to admit guilt to be granted parole?

This question is filled to the brim with irony.  We’ve been told forever by prisoners that they were innocent, but we didn’t know.  And then DNA exonerations changed everything, so that we now know, with certainty, that it happens.  But there was no “substantial evidence of innocence.”  There was the same evidence of guilt as in the cases of most others, except for the tiny detail that it was wrong.

As any trial lawyer knows, when you ask the wrong question, you get the wrong answer.  But then, it also matters who you ask. Continue reading

Harsh Ideas For Delicate Minds

WK: And by, “the c-word,” you mean the word [c-word]?

–Transcript of “Challenging the Ideological Echo Chamber: Free Speech, Civil Discourse and the Liberal Arts’ in The Smith Sophian

Smith College Alumna, lawyer and FIRE Board of Advisors member Wendy Kaminer committed an “explicit act of racial violence” from her seat on the panel. No, she took no bludgeon and struck a person with it because of their color.  She spoke a word.

She spoke a word.  She did so to make a point, that the mere utterance of the word didn’t make the heavens part, the sky fall, plague descend or life as we know it end.  Oh wait, the last did happen, which was pretty much Kaminer’s point.

The word she uttered was “nigger.” She is not the first to do so for this purpose. Continue reading

Attack of the Killer Analogies* (Update)

There are few things that offend intelligence more than false analogies.  The reason is plain: they’re effective tools of persuasion, and utterly wrong.  Sometimes, the problem derives from their use among people who lack the basis of information to recognize the logical fallacy, and other times it’s because people can’t be bothered to think too hard. It makes their head hurt. Either way, the use of false analogy reflects poorly on its maker.

When its maker is an academic, the poverty of proposing a false analogy not only suggests a significant level of dishonesty, but suggests that it’s done to conceal the emptiness of any direct, valid argument to be made in favor of a position. This is abundantly demonstrated here**:

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Because “Crazy” Hurt The Detective’s Feelings

Among the most ridiculous cases of the year, the search warrant in Manassas, Virginia to photograph the erect penis of a 17-year-old boy charged with sexting his girlfriend stands apart.  To describe what happened there as “crazy” is to be tepid. It was totally batshit crazy and every person complicit in the insanity was a flaming nutjob.

Jessica Harbeson Foster, who represented the teen, said as much.  Well, she was kinder.

Foster told The Post, in an article published online on July 9, that her client had already been arrested and his genitals photographed at the county jail. She said Assistant Commonwealth’s Attorney Claiborne Richardson told her on July 1 that the teen must either plead guilty or police would obtain another search warrant “for pictures of his erect penis,” for comparison to the evidence from the teen’s cell phone.

The online article concluded with this paragraph, which is the subject of Abbott’s complaint:

“Foster said Detective Abbott told her that after obtaining photos of the teen’s erect penis he would ‘use special software to compare pictures of this penis to this penis. Who does this? It’s just crazy.’”

See? Under the circumstances, a rather restrained expression of opinion. So naturally, Detective David Abbott, unsatisfied with being ridiculed for his involvement in the execution of a warrant to force a teenage boy to have an erection so it could be photographed, has chosen instead to add a new source of ridicule to the mix. He’s suing Foster for defamation. Continue reading

Revenge of the Poor House

For reasons that completely elude me, Judge Richard Kopf found a question in my acidic post about Tina Brown’s celebrity bash:

I am wondering about a question that Scott’s article very indirectly raises. If crime is highly correlated with poverty, and I believe that it is, can’t one make a compelling argument that imprisoning the poor for long periods of time when they commit crimes is far cheaper than truly trying to eradicate poverty? If that is so, maybe we need more, rather than fewer, prisons. Just a thought.

I would like to take this opportunity to answer the judge’s question. No. Absolutely not. Under no circumstances whatsoever does poverty, whether or not a proxy for potential recidivism, justify enhancing a sentence of imprisonment. Nope. No.

I’m glad we could have this chat.