A Clash of Tactical Experts Over Whose Life Matters

There is little doubt that the insertion of a law enforcement “tactical” expert in the trial process will have an overwhelming impact on the jury’s “understanding” of what they see on video.  The word “understanding” is in scare quotes because it is, in this usage, scary: there is nothing remotely resembling understanding coming out of the clash of experts informing the jury what they’re seeing.

Rarely is it as flagrant as in the Dallas case of Jason Harrison, a mentally ill man killed by the two officer who came to help.

Harrison’s mother had called 911 the morning of June 14 to request that officers come to her Red Bird home to help bring Harrison, who his family said was bipolar and schizophrenic and off his medication, to Parkland Memorial Hospital.

She had called police frequently for help with her son, who often stopped taking his medicine, Sean Harrison said.

Officers Andrew Hutchins and John Rogers, who both have training dealing with the mentally ill, shot Harrison five times after he disobeyed their commands to drop the screwdriver. They were protecting themselves after Harrison lunged at them and moved the screwdriver in a “stabbing motion,” said their attorney, Chris Livingston.

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How Does A Federal Judge Defend Himself? (Update)

When word spread like wildfire that United States District Court Judge Mark Fuller of the Middle District of Alabama was a wife-beater, and then pleaded guilty (Edit: this is wrong, see update below)  to it, the only question left was whether he would skulk out of the courthouse on his accord or have to be dragged out kicking and screaming.

As an Article III judge, Fuller had life tenure in the position, subject to good behavior.  Wife beating certainly isn’t good behavior, but it would require impeachment by the Senate to remove him from office. And bad though it seemed, it wasn’t something he did on the bench, though his judicial career had its share of controversy.

The Alabama judge was criticized for sitting on cases brought by the government even as his aviation company was getting hundreds of thousands of dollars in taxpayer-funded business. Appointed by a Republican, he was denounced for putting a former Democratic governor in manacles after a corruption conviction.

He was the talk of the courthouse for having an extramarital affair with his courtroom assistant, and for his messy public divorce.

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Durst’s Mumbled Confession

Almost every lawyer and lawprof, upon learning of Robert Durst’s confession caught on video and microphone and aired in the finale of HBO’s “The Jinx,” thought the same thing:  He’s toast. Staring into a bathroom mirror, he muttered:

“What the hell did I do? Killed them all, of course.”

Then came the questions. But isn’t it hearsay? What about Miranda? How can it be authenticated? What about chain of custody?  Was it an illegal wiretap?  Lawyers shook their heads. Continue reading

Lawprof To CJ Roberts: You Like Us. You Really Like Us

When Supreme Court Chief Justice John Roberts gave his speech to the Fourth Circuit Judicial Conference in 2011, academics everywhere cried sad scholar tears.

Specifically Roberts claimed that legal scholarship is not relevant to the work of lawyers and judges, saying he . . . believes there is a great “disconnect between the academy and the profession.”

Roberts continued, “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

Mean, hurtful words indeed.  So mean, so hurtful, that they still sting today, which is why Richard Re at PrawfsBlawg felt compelled to prove them to be lies. Continue reading

Traffic Jams

As challenged in a New York Times editorial, the confirmation of Loretta Lynch for attorney general, which apparently isn’t otherwise problematic to senators of either party, is being held captive to more political concerns.

What does the abortion issue have to do with the prevention of human trafficking? Nothing.

What do either of those things have to do with Loretta Lynch, whom President Obama nominated more than four months ago to succeed Eric Holder Jr. as attorney general of the United States? Even less.

Yet Ms. Lynch’s confirmation as the nation’s top law enforcement officer — which seemed like a sure thing only a few weeks ago — is being held hostage to last-minute political mischief.

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The (kinda) Rules of the Prosecutors’ Game

Are there no rules?  It might seem that way, given how federal prosecutors handle their discovery obligations. Some prefer to bury you in 187 bankers’ boxes of junk, while others think the number 16 in the Rule refers to the total number of pages they’re required to disclose.

But Brad Heath at USA Today proves otherwise.

WASHINGTON – Five years ago, after a major corruption case imploded because federal prosecutors had improperly concealed evidence, the U.S. Justice Department ordered its lawyers to start turning over more information to criminal defense lawyers. But the rules for what prosecutors must share and when remained almost entirely secret, until now.

USA TODAY obtained copies of the department’s internal guidelines under the Freedom of Information Act and is publishing them here.

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The Conflicted ACLU

Immediately after the University of Oklahoma/SAE scandal broke, Brady Henderson of the Oklahoma flavor of the American Civil Liberties Union issued a press release:

We join with OU President David Boren, as well as the majority of OU students, faculty, and alumni, and with an overwhelming number of Oklahomans in their disgust at SAE’s conduct this past Saturday night.

We applaud President Boren’s aggressive response to the SAE’s actions, and we encourage the OU administration to be equally aggressive in ensuring that the due process rights of students remain protected throughout any disciplinary processes against Fraternity members.

Of course, President David Boren’s “aggressive response” was to eviscerate the First Amendment rights of those involved.  The Okies then changed their minds: Continue reading

StingRay Hits The Big Time

Sure, those of us who focus on cool stuff used by cops have been aware of the existence of the StingRay, the cell site simulator, which spoofs a cell tower to capture all cellular service within its sphere.  We’re also aware that its manufacturer, the Harris Corp., sells them subject to a non-disclosure agreement.

Based upon this, federal law enforcement agencies have lied to courts and the public about its existence, its function and its actual use in particular investigations.  But not because they’re bad people, but because the NDA requires them to, and they really can’t tell or the bad dudes won’t fall into their trap.

But that’s all done now, as StingRay has gone big time, gracing the pages of the New York Times.  Well, “done” may not be an accurate description.

The issue led to a public dispute three weeks ago in Silicon Valley, where a sheriff asked county officials to spend $502,000 on the technology. The Santa Clara County sheriff, Laurie Smith, said the technology allowed for locating cellphones — belonging to, say, terrorists or a missing person. But when asked for details, she offered no technical specifications and acknowledged she had not seen a product demonstration.

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The Other Internet Tax

The early days of internet shopping brought three huge benefits. First, it gave everyone access to goods that weren’t available at their local mom and pop shop.  Second, it allowed people to find the guy who sold the same item for half the price.  And third, internet sellers didn’t charge tax.  That meant a significant savings, on top of the other benefits.

Of course, government hated the fact that it didn’t get its cut, and so imposed a duty on internet sellers to collect taxes on their sales.  It presented a significant problem for sellers, as every local jurisdiction charged different percentages of sales tax, but that was the sellers’ problem.

A more problematic reason to collect sales tax was that it was killing local business.  Why pay an additional 8.25% for a good?  Brick and mortar stores not only had to pay rent, but had to collect tax. It wasn’t fair that they were put at such a disadvantage to internet sellers. Continue reading

Ferguson: Where Everyone’s A Criminal

The math tells the story:

By December of 2014, “over 16,000 people had outstanding arrest warrants that had been issued by the court.” The report makes clear that this refers to individual people, rather than cases (i.e. people with many cases are not being counted multiple times). However, if we do look at the number of cases, the portrait is even starker. In 2013, 32,975 offenses had associated warrants, so that there were 1.5 offenses for every city resident.

This comes from the Department of Justice report on Ferguson, Missouri.  While the actual numbers on the street work out somewhat different, since the number of offenses and related warrants aren’t divided equally amongst the population of 21,000, the point remains:

That means that the city of Ferguson quite literally has more crimes than people.

But that just scratches the surface of the problem, because the underlying offenses aren’t all murders and rapes, robbery or drug dealing. They’re mostly petty infractions, where fines and surcharges are imposed that people can’t possibly afford to pay.  While you can’t get blood from a stone, you can get a whole bunch of warrants for failure to pay. Continue reading

The Senate Feels Cassell’s Sad Tears

After the Supreme Court refused to bite on his appeal to emotion, and the suffering client was again left to ponder why her lawyers failed to mention that chances were good her cause would fail miserably, former judge turned lawprof turned radical victim advocate Paul Cassell tried an end run around the Constitution.

He went to Utah Senator Orrin Hatch, who picked up the torch with the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2015.  Hatch’s pitch for the law provides:

The Amy and Vicky Act creates an effective, balanced restitution process for victims of child pornography that also responds to the Supreme Court’s decision in Paroline v. United States. It does three things that reflect the nature of  these crimes. First, it considers the total harm to the victim, including from individuals who may not yet have been identified. Second, it requires real and timely restitution. Third, it allows defendants who have contributed to the same victim’s harm to spread the restitution cost among themselves. Continue reading

Two Heads And Three Generations of Imbeciles

A call came in asking whether I would be interested in working with another lawyer on a case.  The caller explained that he wasn’t dissatisfied with the other lawyer, exactly, but wanted a second opinion, a second head.  “Two heads are better than one, right?” he said to me.

Well, no.  Most of the time, two heads are not better, and often worse.

Aside from there being a platitude for everything (too many cooks spoil the broth), choices ultimately must be made.  Immediately after OJ Simpson’s acquittal, everybody wanted a “dream team” of lawyers, just like Juice.  Until, that is, they found out what a dream team costs.  Clients aren’t always good with numbers.

But the Simpson dream team did something smart. Each was charged with handling a specific aspect of the case, suited to their strength, so that they didn’t step on each other. Sure, there was massive conflict anyway, and some major hate grew out of the association, but it worked at trial, which is what they were there to accomplish. Continue reading