Sotomayor and Kagan, An Unforgivable Denial

It’s the case that the Supreme Court said it had been waiting for.  It’s the case that embodied not merely the wrong of sentencing on unconvicted conduct, but the outrage of sentencing on acquitted conduct.   The Supreme Court denied cert in Jones v. United States (see pages 14-16 of the order).

The case is better known for defendant Antwuan Ball, convicted of a single sale of crack and acquitted after trial by jury for a larger drug conspiracy.

To recap, the defendants were charged in a massive crack conspiracy, plus violent crimes. They went to trial, which took 8 months. The jury deliberated for more than two months before returning a verdict.  They acquitted on all counts, except a single distribution count of 600 grams of crack.  Great result? Not so fast.

At sentencing, the district court nevertheless found that all three defendants had engaged in the charged conspiracy and, based largely on that finding, sentenced them to terms of imprisonment ranging from fifteen to nearly nineteen years.

But, but, but . . . acquittal?  Not in this system, pal.

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Judge Kane Rejects Regulating Today’s “Tom Paine”

Colorado’s Coalition for Secular Government isn’t exactly the largest group around.  Its description is a “small think tank” consisting mostly of Diana Hsieh, who holds a doctorate in philosophy.  In her effort to do things in accordance with the law, she registered her “group” with the state.

While it was self-funded initially, Dr. Hsieh ultimately sought donations online, which ranged from $200 in 2008 to $3500 in 2014.  Under Colorado law, that’s sufficient to require it to be subject to onerous state regulation, think SuperPac, because of the state’s abiding interest in making sure that political speech, fueled by secret big money sources, never happens without its oversight.

When the push for Colorado’s “Personhood Amendment,” to limit a woman’s right to an abortion, was proposed, the CSG took action:

CSG recently released the paper, “The ‘Personhood’ Movement Versus Individual Rights,” which Diana Hsieh and [Ari Armstrong] coauthored. The paper argues (among other things) that the so-called “personhood” measure on Colorado’s ballot, Amendment 67, would violate women’s rights to seek an abortion, to use the birth control of their choice, and to seek common in vitro fertility treatments. The paper also makes the philosophic case for a woman’s right to seek an abortion.

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De Minimis Extensions and Frisbee Golf

Following the discussion about the utility of the Supreme Court stating a rule as to whether, and for how long, a car stop can be extended beyond its lawful justification, all of which arose out of the Supreme Court’s grant of cert in Rodriguez v. United States, a video appeared that makes the point less poignantly:

As explained at Addicting Info:

After getting pulled over for a minor traffic violation, an Ankeny, Iowa police officer appears to at first want to make small talk with the driver. He casually asks the man, who had at this point begun filming the encounter, whether he played Frisbee golf. The man replied “I do a lot actually. I play out at Heritage park.” The conversation then takes a bizarre turn as the cop awkwardly asks the man about his drug use based on that hobby.

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As The Definitions of Rape Slide Down The Slippery Slope (Update)

It’s not like I didn’t tell you so. I’ve been harping on definitions, much to the chagrin of those who get headaches from all that legal mumbo jumbo, for the nouvelle crimes that have become ubiquitous.  Many have wondered why so much real estate here has been dedicated to questions about how sex on college campuses has become untethered from any meaningful definition.  This is why.

With an effort also underway by the American Law Institute to reconsider when an assault becomes rape, some legal experts predict that changes to criminal laws in many states may not be far off.

Indeed, with academics throwing around words like “rape” and “sexual assault” as if they were humpty dumpty, they are bringing up baby in a world where these words have come to mean whatever individuals choose them to mean.  Who cares if they are all fuzzy around the edges, defined post hoc, limited only by the feelings of their victims?  What about the victims?!?

When the issue arises in the context of campus discipline, many tend to shrug it off.  After all, it’s not really a criminal proceeding, but just some kangaroo court, or perhaps an inquisition, by a bunch of amateurs who have no clue what they’re doing.  The worst of it is that someone will be expelled from college.  That doesn’t strike some people as a big deal. At least not in comparison to the suffering endured by the victims of rape and sexual assault. Continue reading

Ferguson: Whiteness or Copness

In an unsurprisingly confused New York Times op-ed, Kate Manne, assistant professor of philosophy at Cornell University and writer on moral and feminist philosophy, seeks to explain the phenomenon of police treating protesters in Ferguson “like animals.”

On Sept. 26, two peaceful protesters were arrested in Ferguson, Mo. Watch this video (warning: includes profanity) and you will see two white officers arresting a young black woman who is wearing a red hoodie. One tackles her in a chokehold and yanks her hands behind her back. She whimpers, and they force her face down on the pavement. They then carry her off with one officer holding her by an arm, and the other holding her by a leg. Her body has gone limp; they dangle her between them carelessly. Why were these two men handling her “like an animal?” asks the protester recording the scene with her cellphone. It is a good question. And its answer is not obvious.

That her attention is drawn to the mistreatment of a protester, giving rise to her questioning why some human beings treat other human beings so callously, is good.  But as one commenter to the post notes, Manne blindly assumes that the analysis begins with race.

Manne has an agenda and plugs Ferguson into her favored paradigm. Continue reading

Direct Inverse Proportion: Words to Worthiness

I spent a few hours this morning researching some nice folks I’ve been asked to introduce at a panel I’m moderating next weekend, and I thought immediately of Jeff Gamso’s intro of a panel yesterday at the Ohio Association of Criminal Defense Lawyers conference.

Gamso:  “This is so and so, who’s a good criminal defense lawyer.” /end

This may not be everybody’s cup of tea, but I liked it.  One of the things I find disturbing is the need for people to be self-aggrandizing, rather than to let their body of work speak for itself.  “What,” you say?  They have no body of work, so they have to be self-aggrandizing.  After all, if they didn’t tell the world how groovy they are, how would anybody know?

Well, true. And that’s the point. If they have to tell the world, then chances are extremely good that they aren’t all that groovy.  If they were, the world would know. Continue reading

Criminalizing Creepy (Update)

It turns out that there is a narrow slice of the world where creepy people can engage in kinda twisted stuff without committing a crime.  The place happens to be on the steps of the Lincoln Memorial.  From the Washington Post:

“There is no evidence Mr. [Christopher Hunt] Cleveland positioned his camera in any way or employed photographic techniques or illumination, so as to capture images that were not already on public display,” [D.C. Superior Court Judge Juliet J.] McKenna wrote in her ruling.

This appears to be technically true.

The move was opposed by U.S. Attorney Akhi Johnson, who wrote in a filing that “it would be difficult to dispute that women generally have a subjective expectation of privacy against photographs of their private areas while wearing clothing to cover the private area.”

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Falling For Technology’s Promise

According to 4Chan, the Snappening is imminent.

Hackers have warned that thousands of nude images sent via the mobile-messaging service Snapchat, many of which users believed self-destructed after being sent, are to be released online in a searchable database.

Messaging boards on the notorious website 4chan have been filling up with news of the imminent leak, already being referred to as “The Snappening”.

Snapchat is one of the tiny handful of tech ideas that survive the initial chuckle, filling a peculiar niche for people who want to show someone an image, but only once, and then have it disappear into the ether.  It’s not entirely clear why this is a desirable feature, but it is for some.  The reason for wanting an image to disappear isn’t hard to understand; what makes this dubious is the need to show the image at all if it’s not an image that a person wants to keep around. Continue reading

A Warm, Yet Disturbing, Vignette

When Jake DiMare sent me the link to Rawstory, he included the subject line “this gave me a feeling.”  I responded, “me too,” but wasn’t entirely clear what the feeling was.  You see, so many of these videos end with blood on the sidewalk, or if we’re lucky, only a man being led away in cuffs for having the audacity of being all black and stuff.  Not this one.

On its surface, one could see a man, Dennis Stucky, sitting on the curb, wrongly denied his right to be left alone even though it was a neighborhood where he appeared “out of place,” with a woman who came to his aid, a lawyer, who not only dealt with the police, but took charge of the man, walked him to freedom and made clear that the police were not welcome to engage in such impropriety in that neighborhood.

Jody Westby was a star.  A good person. A strong person. A person who stood up for another person in need.  While it’s possible she could have been at some risk, she gave it no thought. But then, a woman like Westby would never think she’s at risk from the police.  And for the most part, that’s true. Continue reading

Jenny Miranda Update: A Failed Plan

If someone had bet me that I would mention the name of sensitive publicist, Jenny Miranda, again, I would have taken that bet.  After all, she was a one-post wonder, and sufficiently butthurt that she was going to make magic happen so I could never again besmirch her reputation.

I informed you that you are in the Gorkana database as someone who receives pitches. I will call them myself and show them the blog you wrote and explain to them this is what can happen if you are not removed. I’d hate for another publicist to go through this.

I don’t plan on reaching out to you again. I’ll handle everything through Gorkana directly.

And had I taken that bet that I would never again hear from Jenny Miranda, I would have lost.  And lost quickly.  There it was, in my inbox, prominent, smirking at me, daring me, tempting me.  Another pitch from Jenny Miranda, PR Executive Consultant. Continue reading

Defying Gravity

Remember Riff, Bernardo and Tony?  Immortalized by Leonard Bernstein for your viewing pleasure:

These were simpler times, when gun referred to a zip gun, but the weapon of choice was the switchblade and gravity knife.  Ethnic gangs of New York held rumbles, and these kids used knives that could easily be deployed with the flick of a wrist. And so, New York Penal Law §265.01(1) followed, “fixing” the hysteria of the day by criminalizing  the sorts of knives that rumbling gangs preferred: Continue reading

Dot Lawyer

And because there are too few opportunities for lawyers to put on their hotpants and strut down the boulevard giving their sexy come hither look, ICANN came up with two new “general top level domain” names for your marketing pleasure.



Apparently, rumors that dot sleazebag would also become available were greatly exaggerated.   The new GTLD names became available yesterday, forcing guys like me to buy up our names so that someone else didn’t. Yes, I purchased and They forward to my old website,, which makes them a total waste of money.  But the alternative was to have Jamison Koehler buy them for his, ahem, massage services.  The tummy rub problem loomed large.

For those lawyers who were slow on the uptake and missed the opportunity to buy urls for their name, this is a second chance at establishing an internet existence.  There’s nothing wrong with that.  These new GTLD names are regulated, meaning that you are supposed to actually be a lawyer to get to use dot lawyer or dot attorney urls.  Whether that proves accurate has yet to be seen.  It doesn’t seem too hard to game, and I would shocked if it turns out that the use of these urls is actually limited to lawyers. Continue reading