Untrustworthy, But Very Useful

Of all the potentially bad evidence presented at trial, a very large universe indeed, none is worse, less credible, less worthy of belief than the jailhouse snitch.  As Radley Balko notes:

The whole concept of jailhouse informants defies credulity. The very idea that people regularly confess to crimes that could put them in prison for decades or possibly even get them executed to someone they just met in a jail cell and have known for all of a few hours is and has always been preposterous. Not to mention the fact that these are people whose word prosecutors wouldn’t trust under just about any other circumstance. 

To say that prosecutors wouldn’t trust them is an understatement. These are the lowest of the low, the least credible of all, and to ask a prosecutor to believe them otherwise would bring about hysterical laughter.  Except when they bring something a prosecutor needs, at which point they magically turn into the most believable guy ever. Continue reading

Name That Vertical, The Contest

As some of you know, I have been writing posts and doing videos for my pal, Lee Pacchia, at Mimesis Law.  The idea is to create a legal news website based on substance rather than clickbait or the fluffiness that’s permeated so many other websites that make people stupider.  It will include different practice niches, and may well give the sort of people who go to the Puddle to learn how to be a lawyer a terrible headache. We can only hope, anyway.

So what’s a “vertical”?  It’s one of those cool, businessguy-type words that Lee likes to use to prove he’s not just another pretty face. In this instance, it’s going to be the criminal justice piece of Mimesis, kind of a cable channel for criminal law.  Think Velocity or Food Network, limited in scope and focused on one thing.

But it needs a name.  No, SJ can’t be the name, because it’s the name here.  Move on. Continue reading

Sharp Words (Oberlin Choir Update)

In anticipation of the presentation of Christina Hoff Sommers at Oberlin College, a gaggle of students sent a “love letter to themselves” to the college newspaper. It was, as propriety demands, preceded by a trigger warning:

Content Warning: This letter contains discussion of rape culture, online harassment, victim blaming and rape apologism/denialism.

It’s a good thing this trigger warning was included, as it distinguished this anticipatory condemnation from the brutal trauma of actually hearing words before deciding they’re worthy of condemnation. Then again, thinking is so old school, when there are feelings to be felt.

In any event, the love letter was the stuff of banal childish gender politics, of no importance beyond serving as the punchline for a joke to be named later, involving safe spaces, puppies and Play-Doh.  Except, perhaps for this one line: Continue reading

In Search of Loot

The travesty of civil asset forfeiture isn’t exactly a new issue, but when law enforcement’s objective is so flagrantly directed at seeking out random cash to  seize that it appears to everyone, save anyone on the government nipple, to be cynical theft, it can’t be ignored.  Joseph Rivers, a 22-year-old out to make a music video, found that out.

Rivers changed trains at the Amtrak station in Albuquerque, New Mexico, on April 15, with bags containing his clothes, other possessions and an envelope filled with the $16,000 in cash he had raised with the help of his family, the Albuquerque Journal reports. Agents with the Drug Enforcement Administration got on after him and began looking for people who might be trafficking drugs.

Why they say that the DEA agents were looking for people “who might be trafficking drugs” isn’t clear, but it seems likely that this comes from the official police version of events because people find it palatable to have the DEA out there looking for drug traffickers.  Continue reading

Greta’s Big But

Among the sadder things that happened when Rupert Murdoch made Fox News a thing was his taking Greta Van Susteren from us.  Once a highly-regarded criminal defense lawyer, she was replaced by a woman with a lovely nose who toed the company line.  So sad.

When Eric Wemple wrote of Greta’s views on Pamela Geller’s Garland fiasco, it came as no surprise that they would be shrouded in the “yes but” formula that has become de rigueur.  But what was not quite so anticipated was what Greta found to be the greater concern.

So Van Susteren scolded Geller for holding the cartoon contest. “My message is simple — protect our police. Do not recklessly lure them into danger and that is what happened in Garland, Texas at the Muhammad cartoon contest,” she said. “Yes, of course, there’s a First Amendment right and it’s very important, but the exercise of that right includes using good judgment.”

Many have fairly asked whether Geller’s decision to court disaster was needless stupid and provocative.  And that being a question directed at personal choices, it’s hard to argue that this was either wise or necessary.  What it was, however, was her choice, so the rest of us may well hold an opinion on whether we would have done the same thing, but we don’t get a vote. Geller gets to make her own decision, and we don’t have to like it. Continue reading

The Federal Grass Is Always Greener

No, not that kind of grass. Get a grip.  As happened in Ferguson, Missouri, Baltimore Mayor Stephanie Rawlings-Blake has called for the federal cavalry to sweep into the city and right the pattern and practice of unconstitutional abuse and discrimination.  In Ferguson, the feds issues a damning report, and we kvelled over it.  Oh, the feds are the ginchiest. So fair. So wonderful. So trustworthy. So federally.

As some correctly note, the feds consist of more than one person, one division, one agency, and so the involvement of, say, the Department of Justice’s Office of Civil Rights, where they ship all the people who believe in unicorns to keep them far away from the Office of Legal Counsel, there are voices more trustworthy than others within the humongous structure of Main Justice.

But still, what we’re seeing is an adorable belief that the federal government DoJ apparatus exists on a higher plane of trust than our local governments, and this gives rise to a phenomenon of generalized faith in them.  This translates into a belief that federal law enforcement is better than the nasty, brutish local thugs who kill black kids, and the feds have magical powers that allow them to do it better, wiser, more fairly and with the utmost integrity.  The locals suck, and so we invite the feds in because they are the epitome of the new professionalism. Continue reading

If You See Something, Say Nothing

The question arises regularly, whether it’s because of the random person with different color skin, the guy around your house who is unfamiliar or the parents who let their kids do something you wouldn’t.  What to do?  Call the cops.

Ya know, I’m just going to complain and get some stuff off my chest.

So I’m working last week and get dispatched to a call of ‘Suspicious Activity.’ Ya’ll wanna know what the suspicious activity was? Someone walking around in the dark with a flashlight and crow bar? Nope. Someone walking into a bank with a full face mask on? Nope.

It was two black males who were jump starting a car at 930 in the morning. That was it. Nothing else. Someone called it in.

People. People. People. If you’re going to be a racist, stereotypical jerk…keep it to yourself. Don’t call the police and make them get involved into your douchebaggery.

That’s all. End rant.

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Death To Hate Speech

The New York Times takes a blind leap into the popular pool with its editorial entitled, “Free Speech vs. Hate Speech.”  The phrase, “hate speech,” has been all the rage in academia, uttered by every sophomore editorial writer who feels compelled to wear his heart on his pen.  But the Times?

There is no question that images ridiculing religion, however offensive they may be to believers, qualify as protected free speech in the United States and most Western democracies. There is also no question that however offensive the images, they do not justify murder, and that it is incumbent on leaders of all religious faiths to make this clear to their followers.

But it is equally clear that the Muhammad Art Exhibit and Contest in Garland, Tex., was not really about free speech. It was an exercise in bigotry and hatred posing as a blow for freedom.

Free speech but is how it always seems to start.  Is it “equally clear” that the Garland contest was not “really about free speech”?  Is it clear because it was “an exercise in bigotry and hatred posing as a blow for freedom,” because somebody at the Times thought it was WRONG? Continue reading

Rakoff: And Judges Too

There are a handful of federal judges who, while still on the bench, have chosen to speak out about the legal system in a way that doesn’t extol its virtues or mention that platitude that it’s the best anyone has created.  Easy as it may be tell the truth, even the ugly truth, when you’re no longer on the payroll, doing so when you still have enough juice to make it count is rare. Southern District of New York Senior Judge Jed Rakoff has, once again, proven himself a rare judge.

In the past, Judge Rakoff has discussed the infirmities of federal sentencing, the charade of junk science and coercing defendants into pleas.  That these are all related, and overlap, comes as no surprise to anyone engaged in the system.  In the New York Times Review of Books, Judge Rakoff goes in a different direction, and one where a sitting judge almost never treads: Mass Incarceration: The Silence of the Judges. Sure, we know about all these problems, but are judges the cure or the disease when it comes to mass incarceration?

The basic facts are not in dispute. More than 2.2 million people are currently incarcerated in US jails and prisons, a 500 percent increase over the past forty years. Although the United States accounts for about 5 percent of the world’s population, it houses nearly 25 percent of the world’s prison population. The per capita incarceration rate in the US is about one and a half times that of second-place Rwanda and third-place Russia, and more than six times the rate of neighboring Canada. Another 4.75 million Americans are subject to the state supervision imposed by probation or parole. Continue reading

The Third Party Doctrine Lives

Doc: I’m very sorry, but your illness is terminal.

Patient: Well, I want a second opinion.

Doc: And you’re ugly.

The 11th Circuit, en banc, has weighed (and I use that word purposefully, given that the entire opinion comes in at 102 pages) in on United States v. Davis, and proclaims the Third Party Doctrine alive. It’s alive!

My ersatz law clerk, Orin Kerr, has dutifully described the underlying circumstances of the case, the arguments and the holding, and done a damn fine job of it, I might add, if you don’t mind his gratuitous insertion of his pet mosaic theory.  The core rationale travels the well-worn path of precedent:

For starters, like the bank customer in Miller and the phone customer in Smith, Davis can assert neither ownership nor possession of the third-party’s business records he sought to suppress. Instead, those cell tower records were created by MetroPCS, stored on its own premises, and subject to its control. Cell tower location records do not contain private communications of the subscriber. This type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes, does not belong to Davis, even if it concerns him. Like the security camera surveillance images introduced into evidence at his trial, MetroPCS’s cell tower records were not Davis’s to withhold. Those surveillance camera images show Davis’s location at the precise location of the robbery, which is far more than MetroPCS’s cell tower location records show.

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The Brotherhood of the Knife

Lawyers for Baltimore police officers Garrett Miller and Edward Nero, both charged with the false imprisonment of Freddie Gray for having arrested him without probable cause, have gone on the offensive.  Good. That’s what they’re supposed to do, aggressively defend their clients.

But having raised some issues, the media has seized upon them and, in furtherance of their desired outcome, awarded the cops the win.  Not so fast, guys.

Mosby correctly notes the “knife was not a switchblade”—but police never said it was.

“The knife was recovered by this officer,” Officer Garrett Miller wrote in the arrest report, “and found to be a spring-assisted, one-hand operated knife.”

Spring-assisted knives open on their own after a small push on the blade by a finger, unlike switchblades, which shoot out with the press of a button.

Despite their differences, they’re both illegal in Baltimore.

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Rape Culture? Blame Grandma

At five, relatives used to kiss my cheeks even as I winced and turned away. 

Jordan Bosiljevac, The Forum, Claremont McKenna College

Me too!  In fact, even today I avoid social kissing, when someone I meet goes to kiss me on the cheek, and I don’t want them to.  I don’t mean to be rude, but I just don’t like kissing, or being kissed by, random mouths or cheeks. But then, I make a choice.

These incidents, unfortunately, are not unique to me. In discussing this experience with friends, we coined the term “raped by rape culture” to describe what it was like to say yes, coerced by the culture that had raised us and the systems of power that worked on us, and to still want ‘no.’ Sometimes, for me, there was obligation from already having gone back to someone’s room, not wanting to ruin a good friendship, loneliness, worry that no one else would ever be interested, a fear that if I did say no, they might not stop, the influence of alcohol, and an understanding that hookups are “supposed” to be fun.

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