The Other Dark Meat

Before anyone would have believed that there could be a court in the United States of America that was closed to everyone but prosecutors, there was a need to keep certain things from prying eyes. There was a file kept in the clerk’s office at the old federal courthouse in the Southern District of New York, that held search warrant applications that had yet to produce arrests and indictments. You see, every paper signed by a judge has to be kept somewhere.

Not too many people knew about this file. It had a name and number, and could be requested from the clerks. And in it were secrets. Hard to find secrets, but secrets, there, in a file, for all the world to see if they knew the secret name and number. Then came FISC, the Foreign Intelligence Surveillance Court.  Even though it violated every precept of what a court was supposed to be since the Spanish Inquisition, it somehow didn’t bother us too much.

In 1978, Congress created the first secret court in our history — the Foreign Intelligence Surveillance Act (FISA) court. Staffed by Article III judges borrowed from federal district courts, this specialized tribunal issues surveillance warrants for foreign intelligence purposes. Understandably, given its mission, FISA court proceedings are ex parte and mostly secret, although the Snowden revelations in 2013 forced a partial lifting of the veil.

That’s not entirely correct, as criminal defense lawyers became aware of FISC long before, and raised holy hell about it, to which an appreciative nation went “meh.”  Of course, there was no internet back then, and the media wasn’t interested because everyone understood that the Constitution wasn’t “a suicide pact,” and we had to fight the commies lest we be forced to drink bad vodka. Our American fetish with law happening in a room where evil eyes could watch was obviously idiotic, and so a nation weaned on grossly sexist spy movies understood the need for secrecy. Continue reading

Bronx Defenders Sues To End Insufferable Delays (Update)

The class is huge, and every day, grows larger.  It’s made up of every person who is arrested and charged with a misdemeanor in The Bronx.  The complaint is that once someone goes into the system, it takes forever to come out.

Robin Steinberg, the Bronx Defenders’ executive director, said delays for people charged with misdemeanors — the lawsuit’s focus — had only gotten worse in recent years. Last year, there were more than 45,000 misdemeanor arraignments in the Bronx, according to court statistics cited in the suit. Ms. Steinberg said the misdemeanor cases accounted for the vast majority of the people entering the system.

So there are too many criminals in the Bronx?  Maybe so. Maybe not. It doesn’t matter, because even people who committed heinous misdemeanors, like smoking weed in public, are entitled to a speedy trial and due process.  The federal complaint is a “talker,” telling the stories of some defendants, like one of the named plaintiffs,  Michael Torres, who waited 877 days, through 14 court appearances, up to six hour waits each time he went to court, the loss of his job, only to have his case dismissed when the cop testified that he had no recollection of Torres.

Defendants charged with misdemeanors in the Bronx regularly see their cases languish far past the 60- and 90-day speedy trial limits set down in state law for various low-level offenses, because delays caused by the courts’ crowded calendar rather than the district attorney are not counted toward the limit. Defendants who wish to go to trial must often wait years and sometimes never get their day in court, a 2013 study showed.

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The War on Drugs Is Not Dead Yet

While some mouth the words of ending the drug war as an abysmal failure that’s destroyed hundreds of thousands of lives while accomplishing nothing, the mouth of an old-time drug warrior can be heard screaming and spitting. Welcome back, Bill Bennett.

The Sentencing Reform and Corrections Act now before Congress is based on a lie — that drug dealing is not a violent crime. Americans have been told this lie for years even as we witness the violence and death caused by drug dealers in our communities. Now, this lie is propelling legislation through Congress that will destroy more lives.

It’s not drugs. It’s violence. VIOLENCE! And anyone who says otherwise is a liar. A LIAR!!!

How can the drug trade be victimless when most Americans know a victim? How can it be non-violent when we witness the carnage every night on the local news?

The countless Americans victimized by drugs know the truth, as does anyone who has looked at the facts about America’s prison population.

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The Transgender Question On The Table

Attorney General Loretta Lynch has teed up a question that needs to be answered: is discrimination against transgender folks sex discrimination?  The Department of Justice has commenced suit against the State of North Carolina based upon its knee-jerk law in response to Charlotte’s transgender bathroom law.  Despite various issues with the NC law, the suit goes to some core questions:


Title VII applies to workplace discrimination.  It prohibits discrimination on the basis of sex. It makes no mention of discrimination on the basis of gender identity. Continue reading

Utah Struggles With Virginity: Punishing A Prosecutor For The First Time

What to do with an unethical prosecutor in Utah?  Such a hard, difficult, vexing question.  Not just because the courts are so very reluctant to hold a prosecutor accountable. They are, of course, because they would hate to make prosecutors feel the slightest bit skittish in protecting society from rapists and terrorists, but for a more legalish reason:  It’s never happened before.

It is a question the Utah Supreme Court is pondering in the case of a former Davis County prosecutor. Whatever the ruling, it will break new ground in attorney-discipline issues — it being the first time the justices have weighed in on a case in which a prosecutor is accused of violating his or her special duties.

There isn’t any question that Larsen is a total unethical scumbag. That much is firmly established.

Larsen has been appealing a seven-month suspension of his law license. He was fired from his job as a Davis County prosecutor after alleged misconduct during a 2010 aggravated robbery trial in which he showed the robbery victims a photo of the defendant, but did not show them any other photos as part of a proper photo lineup. This was not disclosed to the defendant’s attorney, who asked for — and was granted — a mistrial when one victim testified that Larsen had shown her the single photo.

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Randazza’s Anti-SLAPP Would Make No Sound In New York

Despite a certain irony in Dan Bilzerian suing TMZ for publishing a story about a woman who claimed to have gotten chlamydia from him, it happened.  The story was first published at The Dirty, which makes infinite sense, and then picked up by TMZ.  Bilzerian sued the Dirty, and then TMZ. Why? Because he can.

Dan Bilzerian is an Internet celebrity, known for his extravagant, jet-setting and partying lifestyle. He has a particularly strong social media presence on the website <> (“Instagram”), boasting over 12 million followers. He regularly shares photographs of himself
posing with scantily-clad women, large sums of cash, expensive cars, planes, firearms, and extravagant homes. He has been dubbed the “King of Instagram” and “Instagram’s Playboy King.”

You can’t tell instagram followers whom to love, right? But then, when a guy has a few bucks, and is willing to part with them, suing media who write about your alleged loathsome diseases is an excellent way to make sure no one writes about stuff that drips from one’s penis. And that’s precisely what Anti-SLAPP legislation exists to prevent.

Strategic Lawsuits Against Public Participation (“SLAPP” suits) are an affront to the freedoms of expression and of the press. Plaintiffs file SLAPP suits against media outlets not because of any objective merit, but to punish defendants for exercising their free speech rights. Such suits have a chilling effect on others who might also be inclined to do so.

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Hating Redskins

Like any real Giants fan, I hate the Redskins. Always have. Not the sort of hate that makes me want to take up arms and do them harm, but the sort of hate that makes me proclaim that they don’t deserve to be on the same playing field as my beloved New York Giants. Heck, they shouldn’t even be in the NFC East. They should be an AFC team, because I hate them that much. Yes, I’m ridiculous when it comes to my Giants.

But what about the name?  What about the word, Redskins?  My pal, Greg Prickett, who is part Menominee Indian,  responded to a post at Fault Lines noting the Supreme Court’s grant of cert in the Slants case, in which the Redskins weaseled their way onto the certiorari coattails.  Greg wrote:

This is not a free speech issue. Snyder can call his team anything he wants, but the government does not have to offer trademark protection to such an obviously racist team name.

He’s not exactly wrong, but he’s not right either. Yes, Redskins is an “obviously racist team.” And name for a team, too. So while Snyder, the owner of that horrible team, may be entitled under the First Amendment to use it, is he also entitled to the protection of his mark by the government? Continue reading

Person Who Was Convicted Of A Felony (Formerly Known As Felon)

It’s unlikely that you haven’t noticed this before, but there is a war against words going on. It’s not a new war. Words have always been subject to scrutiny, arising when they’re acceptable, then declining when deemed pejorative.

Same word. Different feeling. Usually accompanied by a tedious explanation for why the word that was once the savior of hard feelings is now the cause of them. This isn’t true of all epithets, some of which arose as pejorative terms, and were always intended as insults, but those aren’t the words under discussion.

A perfect example is offered in Dan Barry’s op-ed about the “intellectually disabled.”

For many years, the preferred term was, simply, idiot. When Massachusetts established a commission on idiocy in the mid-1840s, it appointed Dr. Samuel G. Howe, an abolitionist and early disability rights advocate, as its chairman. The commission argued for the establishment of schools to help this segment of society, but made clear that it regarded idiocy “as an outward sign of an inward malady.” Continue reading

The Three Most Important Things to Know About Making A Citizen’s Arrest

In a demonstration of bizarrely inexplicable irresponsibility, the New York Times Sunday Magazine includes a “how to” guide to making citizens’ arrests.

“There are very strict rules of engagement,” says Jeromy McHenry, who owns a private security firm in California and has made over 1,000 citizen’s arrests. Statutes governing when and how laypeople can arrest their compatriots vary. Know your state’s laws.

Know your state’s laws? Because people just happen to walk around with a deep, encyclopaedic knowledge of the elements of crimes in their state?  And what about important federal law, like John Bad Elk? Are you mad?

If you do get involved, act with authority. “Speak in a stern, matter-of-fact voice,” McHenry says. Announce loudly: “You’re under citizen’s arrest.”

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Harvard Men

Who could have seen this coming? Harvard has dropped the hammer on male-only clubs. Not by outlawing the clubs, as final clubs* were already de-institutionalized in the last wave of feminist hysteria, but by blacklisting members of the clubs from the benefits conferred by the elites.

Starting with the class that enters Harvard in fall 2017, members of single-sex clubs will be prohibited from holding leadership positions on campus, according to a statement released by the university’s president, Drew Gilpin Faust. This would include athletic team captains; many club members have historically been captains. Members will also be barred from receiving the official recommendations required for prestigious postgraduate fellowships and scholarships, such as the Rhodes and Marshall Scholarships, the statement said.

One might point to the hypocrisy of Drew Faust’s having enjoyed the benefits of an all-women education at Bryn Mawr, or point out that freedom of association is a right protected by the Constitution, but such criticisms detract from the banal truth.

The all-male final clubs at Harvard University have long been bastions of money, power and privilege. But on Friday, 225 years after the oldest club was founded, the university announced restrictions on the organizations that could ultimately be their undoing, or at least significantly change their character by forcing them to become coed.

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Shira Scheindlin: More Judges, Better Judges

Having hung up her robe, Shira Scheindlin is now free to speak her mind, and so she does in a New York Times op-ed.  For those who may not know why this matters, getting your case wheeled out to Judge Scheindlin was like winning the criminal defense lottery in the Southern District of New York.

It didn’t guarantee a win by any stretch, but you were pretty well assured that she would listen to your arguments and give them serious consideration. That’s the best we could hope for. And unlike other judges, who would work hard to find a reason, good or otherwise, to deny whatever it was you sought, sometimes Judge Scheindlin said yes. For those of you who only see the system from afar, you have no idea how rare that is. Law sounds great on paper, but it’s brutal and ugly in the trenches. It’s that occasional “motion granted” that we live for.

Judge Scheindlin was unfairly smeared, and excoriated by her own branch, for her ruling in the Floyd and Ligon cases, where she held the NYPD’s “stop and frisk” program unconstitutional.  It was one of Commissioner Ray Kelly’s best tricks, name the tactic after something that’s perfectly lawful, but perform it in a flagrantly unlawful way. It confuses the crap out of the public and most politicians, and was easily wrapped up in a lie that soothed white New Yorkers at the expense of blacks and Hispanics.

Throughout the litigation and its bizarre appellate aftermath, Judge Scheindlin was constrained to bite her tongue. She was a judge. She didn’t get to write op-eds, take to the airwaves, to explain to an ignorant public why their elected officials were totally full of shit, lying to them, deceiving them.   Continue reading

A Lie Too Far?

At Techdirt, Tim Cushing writes about a doggie search on an Amtrak train from Chi-town to the left coast.  During a stop in Nevada, Detective Madhu Kurup decided to take advantage of Shaun Estes’ desire for a quick smoke.

Shaun Estes, who was traveling by train from Chicago to California, was confronted by Amtrak detectives (yes, there is such a thing) while smoking a cigarette during a brief stop in Reno, Nevada. Detective Madhu Kurup approached Estes based on nothing more than the fact that Estes’ one-way ticket had been purchased with a credit card belonging to someone else. Seeing this on the passenger manifest, Kurup requested the assistance of local officers and their drug dog. That’s when things went from bad to worse to farcical.

Estes was asked if he was carrying any drugs, weapons or [cash register noise] “large amounts of money.” Estes claimed he wasn’t. Kurup asked for permission to search Estes’ cabin and belongings. Estes refused. Kurup then informed him that a drug dog was on the way and that his belongings would be seized while a warrant was obtained if the dog alerted.

Nothing out of the ordinary here, so Kurup did what brave law enforcement officers do every day. He lied. Continue reading