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

Leave It To The Pros

That’s professionals, not prostitutes. Not that there’s anything wrong with that, but it’s not what I meant. Doug Berman at Sentencing Law & Policy points to a new law review article by William & Mary lawprof Adam Gershowitz that raises a very interesting idea. It begins with an explanation:

When a fatal traffic accident happens, we expect the local police and prosecutors to handle the investigation and criminal charges. When a fatal airplane crash occurs however, we turn instead to the National Transportation Safety Board. The reason is that air crashes are complicated and the NTSB has vast expertise. Without that expertise, investigations falter.

It then gets to its point:

It is easy to point to a similar series of mistakes by local prosecutors and defense attorneys in many death-penalty cases around the country. If we are to continue utilizing capital punishment in the United States, the death-penalty system should follow air crash model, not the car crash model. Capital cases should be handled by an elite nationwide unit of prosecutors and investigators who travel to capital murder sites the way the NTSB travels to airplane and other catastrophic crashes.

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Butthurt Bites Bainbridge (and lawyers are laughing) (Hasen Update: What About ME!!!) (Bainbridge Update: Counting to 3)

Among the handful of truly important things within the legal academy, intellectual honesty was pretty high on the list.  It was fine to disagree about something, but misstating facts (or, as lawyers are more inclined to call it, lying through your teeth), was not only frowned upon, but the kiss of death for scholarly respectability.  It appears that someone took a crayon and crossed it off the list.

When Judge Richard Kopf questioned the Supreme Court’s decision to wade into the deep end of controversy, he closed with this phrase:

As the kids say, it is time for the Court to stfu.

Colorful, even if not your cup of tea.  Naturally, he was attacked for his fresh mouth nasty fingers by the prissy, who found his use of the vernacular disturbing.  This was noted in my plea for the judge not to cease writing, which included the criticism of three law professors, Stephen Bainbridge (who bizarrely called Judge Kopf’s post “thinly veiled anti-Catholicism”), Rick Hasen (who felt that it undermined the dignity of the judiciary) and Jonathan Adler, who had no reason but didn’t want to miss the train. Continue reading

Why Does Nashville Police Officer Michael Pyle Hate Babies?

An 8-day-old infant was inadvertently locked in a car on the way out of the pediatrician’s office. The firefighters couldn’t get the door unlocked, so the doctor, Stacey Williams, got a hammer from her office to break the car window and free the baby, even though this wasn’t quite the way the firefighters preferred to deal with the situation.  Enter Metro cop and brave hero, Michael Pyle.

PyleOfficer Michael Pyle was dispatched to the call after firefighters said an unruly person was interfering with their rescue attempts.

Unruly? Continue reading

Command Presence Doesn’t Care About The Black Robe

In the courtroom, the judge is god.  But on the street, the judge will do as he’s told.  In New York, Supreme Court Justice Thomas Raffaele was taught that painful lesson, although he never really appeared to get it.  In California, it was Judge David Cunningham’s lesson to learn.

[Los Angeles County Superior Court Judge David S. Cunningham] claimed that two campus officers cuffed him and threw him into the back of a squad car after he had finished his morning workout at a gym in Westwood on Nov. 23, 2013.

The officers acted after he got out of his car to retrieve his car insurance and registration information and refused orders to get back in his car, the university said.

You have to love it when the media reports that the judge “claimed” something happened, just like ordinary folks do. From the LA Times: Continue reading

The Magic Bullet Isn’t Always Shiny

For years, one of the rallying cries of the defense bar and criminal justice advocates has been to require recording of interrogations.  That would prevent a laundry list of ailments, from coercive questioning that led to false confessions to revelation of police duress that would show how a defendant’s free will was overcome.  The jury would then be able to see how the sausage was made, for better or worse.  Yes, that would fix the problems.

I was never quite so sanguine.

Whether it’s videotaped confessions, or double-blind sequential line-ups, we insist that this will “fix” the system.  They may well improve things, at least until law enforcement figures out a way to use it against us.  But our expectations in magic bullets has no better chance of being the fix than did those 9 squad car cameras have of showing the reporter being subjected to excess force.

It’s not the procedures or the equipment that makes things go terribly wrong.  It’s the people, the judges, prosecutors and police.  It’s the criminal defense lawyers as well, who lack the nerve to fight the good fight.  No one has come up with a magic bullet that will change the people.

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The Integrity To Walk Away (and the guts to do so) (Update)

No one likes to think of themselves as incapable of doing that for which they went to school, were trained, dedicated their career.  This is especially true of lawyers, who sometimes view their ticket to practice law as a bullet-proof shield that allows them to take on the responsibility of another person’s life with impunity.  Modesto, California lawyer Steven O’Connor saw it differently.

From the Modesto Bee:

Defense attorney Steven O’Connor said in court that he was not competent and wanted off the case.

“I’m not going to proceed in this case,” O’Connor told the judge. “You can find me in contempt. You can notify the State Bar.”

Read more here:

O’Conner was defending Nicholas Harris in a murder case, and lost in the guilt phase.  It would have been far better had he realized that he wasn’t up to the task before trial, but he didn’t. Better late then never. Continue reading