There Is No Need Greater Than Evidence

The irony of what police in Manassas, Virginia did, and plan to do, in inducing an erection in a teenaged boy by injecting him with drugs so that they can photograph his penis for evidence to prove that the image the boy took of himself was child porn, is beyond belief.  In fact, everything about this matter is beyond belief.

The prosecution of this teenager is wrong. The disparity of treatment between the boy and girl, who was first to sext an image of herself to the boy, is wrong. The forced photography of a teenager’s flaccid penis by police is bizarrely wrong. But what’s coming up makes all this pale in comparison.

For anyone who feels that badly written, poorly conceived, knee-jerk criminal laws will be sorted out by the good graces of police and prosecutors, this story should put the nail in the coffin of that ill-conceived nonsense. But there is nothing about this case that is more wrong, more disgustingly wrong, than what the police want to do to create evidence to nail down their conviction.

As much as I appreciate the dozen or more emails and twits about this story, Rick Horowitz has already written a post that captures the depth of all this wrongfulness.  There’s no need for me to pile on, as Rick has said what needs to be said. Go read Rick’s post.


Who Is More Deserving Than The District Attorney?

Chief Judge Jonathan Lippman has sought to bring the spirit of helping others to New York lawyers by his creation of a pro bono requirement for admission to the New York bar in the hope of instilling a lifelong desire to help those who are truly worthy of pro bono publico.  Can there be anyone more worthy than Nassau County District Attorney cum United States Congressperson, Kathleen Rice?

When suit was brought against Rice for making false allegations against Jesse Friedman to thwart his effort to prove his innocence, a law firm stepped up to the plate to defend the poor, the downtrodden prosecutrix, Debovoise & Plimpton.  At first, Friedman attorney Ron Kuby, assumed the obvious, that this defense could prove both expensive and unhelpful for the county footing her bill.

But Debovoise’s Andrew Levine was deeply hurt by the suggestion that the firm’s interest was in filthy lucre, and requested that Kuby make clear that the firm would not be charging the County for its services. Oh no, these services would be pro bono.  After all, this was Kathleen Rice.

Sure, there are some who would think that Biglaw’s pro bono efforts would be better directed toward the wrongfully convicted facing imminent execution, perhaps children facing deportation, or even to fill the gaping holes in underfunded representation of the indigent.*  But do they not appreciate the worthiness of Kathleen Rice? What about her need for a million dollar defense on the cuff? Continue reading

It Takes A Narco-Saint Expert

For anyone who hasn’t had the pleasure of defending against narcotics charges, the “indicia” of drug-dealing has always been a bizarre offer of proof.  The defendant had $324 in cash in his pocket?  Proof he’s a drug dealer, because drug dealers transact business in cash.  If he has no cash in his pocket, it’s proof he’s a major drug dealer, because major drug dealers have people who do the dirty transactions for them so they don’t get their hands dirty. See how that works?

It used to be the beeper that proved someone was a drug dealer, because drug dealers used beepers. Then it became cellphones. Same reason. What, you say?  Everybody used beepers and cellphones?  Ah, you don’t understand because you aren’t an expert in drug dealing.

For that purpose, you need a cop to testify.  The prosecution will put a cop on the stand, who the judge will invariably qualify as an expert based upon his “education and experience,” because he’s got tons of experience dealing drugs and learned all about it from the drug dealers teaching at the police academy, to explain to the ignorant groundlings on a jury why that cash in the defendant’s pocket is so fundamentally different than the cash in their pockets.  (Hint: It’s because he’s a criminal.) Continue reading

Say What? Is It Discriminatory To Require Employees To Speak English

Via Turley, the EEOC has charged Wisconsin Plastics, Inc., with discriminating against Hmong and Hispanics in violation of Title VII of the Civil Rights Act of 1964 for firing employees for not speaking English in the workplace.

EEOC Chicago Regional Attorney John C. Hendrickson stated that “Our experience at the EEOC has been that so-called ‘English only’ rules and requirements of English fluency are often employed to make what is really discrimination appear acceptable,. But superficial appearances are not fooling anyone. When speaking English fluently is not, in fact, required for the safe and effective performance of a job, nor for the successful operation of the employer’s business, requiring employees to be fluent in English usually constitutes employment discrimination on the basis of national origin — and thus violates federal law.”

The EEOC said that the action was taken after relatively short interviews to judge the English ability of the employees. In 2009 the agency issued a controversial order making a workplace English rule illegal.

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When The Judge Says “Meh”

At A Public Defender, Gideon writes yet again about the magically revealing evidence that somehow managed to fall between the cracks of Dejuan Hammond’s life when it was supposed to be disclosed.  The prosecution explains that they are disclosing it now, too late, out of an “abundance of caution.”  Hammond’s lawyer, Ted Shouse, is “furious” that evidence to which he was entitled five years ago is only surfacing now.

Gid does an excellent job of eviscerating the sham of the prosecution’s “oopsy” claims.  The prosecution is required by law to disclose, and to exercise due diligence to be certain that it has managed its file with sufficient competence to satisfy its duty.  Just as it concerns itself with amassing the evidence of guilt sufficient to nail the defendant at trial, the law requires it to show the same concern to disclosing evidence to the defense.

This would be an excellent place to point out the irony that the prosecution puts a person on trial for violating the law, while it simultaneously violates the law, but that only plays to the naïve. Reality is that we, the players in the system, both know this and live with this all the time. We have for as long as I’ve practiced law. Continue reading

Judge Kopf and the Appearance of Impropriety (Update)

In response to the Supreme Court’s Hobby Lobby decision, Nebraska Senior District Judge Richard Kopf did something that caused some heads to explode.  He told the Supreme to STFU.  Ironically, the volatility of the decision, which was the reason Judge Kopf thought the Supreme Court’s insertion into such a controversial political issue was destructive, gave rise to calls for Judge Kopf to STFU by some, including some academics.

Lawprof Stephen Bainbridge, who made the specious assumption that Judge Kopf’s post was fueled by ‘thinly veiled” anti-Catholic animus, and later seized upon a joke written by the judge that he never cared enough about in the first place to know happened and still doesn’t grasp (and if Bainbridge doesn’t get it, it can’t be a joke), offered his deep thoughts:

Dude, you really need to STFU.

At Election Law Blog, lawprof Rick Hasen writes:

A judge who blogs should not say “STFU” to the Supreme Court. Continue reading

The “Really, Really Guilty” Rule

Recently, I wrote about the problem arising from young lawyers, law students and law profs writing in a more mainstream forum on an interesting, topical issue about which they knew nothing.  Some people asked for examples, which I was reluctant to give.  My purpose wasn’t to out a law student as a dumbass. Their fault, if any, was seizing the opportunity to make themselves appear important at the expense of every reader’s intelligence. Can you blame them?

But an example appeared that’s both opportune and causes no qualms about outing.  New York Law School professor Robert Blecker, who has sought to make his scholarly bones as the foremost, if not only, law prof cheerleader of execution, somehow managed to get a piece posted at CNN Opinion.

What readers will remember isn’t the name Blecker, but that someone at the “prestigious CNN” thought the ideas so worthy as to give it space.  Little do they know how desperate websites are for content, but that’s another issue.  To the uninitiated, if it’s worth space in CNN, it must be true.  Or at least credible. Continue reading

With My Deepest Apologies

It’s not that I’m a big fan of Gilbert Gottfried, but the guy is an apology savant.

Let me begin by saying I’m sorry. I’m truly, deeply, unequivocally sorry. I apologize to the people I offend with this essay, and I apologize to the people who aren’t sure why they’re offended but are pretty sure they should be. I don’t know how I live with myself, and I hope you’ll find it in your heart to forgive me.

You see what I did there? It’s called a preemptive apology. I apologized in advance, before any of you had a chance to demand one.

When you say something publicly, beyond “hugs” and “you’re the ginchiest,” you’re going to piss someone off. Someone will disagree. Sometimes they will “respectfully disagree,” but more often they will be deeply upset at the lack of respect you’ve shown for their feelings. Continue reading

Legal Fees Lost

A line stood out in Radley Balko’s post about another forfeiture outrage.

It took Nelson nearly five years to get back his money and property. I don’t know if his attorney took his case pro bono, but if he didn’t, Nelson won’t be reimbursed for his legal costs. Nor will be reimbursed for any money he had to spend traveling to Nebraska for hearings or depositions. He also won’t be paid any interest he might have earned while the Nebraska State Police held on to his money.

The post is about a 22-year-old kid from Cedarburg, Nebraska, John Nelson.  He took his life savings of $48,100 and headed for Colorado.  A few weeks later, after buying some personal use pot and learning that Denver didn’t love pit bulls, he decided to turn his RV around and head back to Nebraska. Stopped along the way, bad things happened.

During the stop, the trooper began to suspect Nelson was transporting a large amount of high grade marijuana. Specifically, the trooper reacted to Nelson travelling in a large, uneconomical vehicle from Denver, a marijuana transportation hub city, to Milwaukee, a distribution city. The trooper also found suspicious Nelson being nervous, under-representing his criminal history, and falsely claiming snowboarding had been his reason for having traveled to Colorado. Continue reading

New York’s Happy Workers Unite

So what if the New York Court of Appeals held its aggravated harassment law unconstitutional? Who cares if Albany County’s cyberbullying law is unconstitutional?  Not the New York Senate, which just finished up with a revenge porn law embodying every constitutional failing it could think up. Certainly, there must be more they can do to keep the courts busy?

Just in the nick of time, the Senate Labor Committee voted in favor of its workplace bullying bill, called the “Healthy Workplaces.”  Who doesn’t want healthy workplaces?


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Investigation Reveals He “Became Unresponsive”

They say smoking kills, but this wasn’t what they were talking about. Not even in a city that bears the name meaning brotherly love, as interpreted by the moral descendants Frank Rizzo rather than William Penn.  Philadelphia has long been a tough place to be black.


THE DAY WAS almost done, the street emptying out from a community barbecue. Inside Deborah’s Hair Salon in Nicetown, stylist Margo Broaddus put the finishing touches on her last customer, as her husband helped drag chairs inside from the day’s fun.

She needed cigarettes. So she gave Sean Broaddus $7 to run to the corner store. But seconds after her hubby disappeared inside the Dalvis Grocery, she said, cops emerged seemingly from nowhere and swarmed the store so quickly on Broaddus’ heels, it was as if the salon’s picture window had morphed into a TV screen showing a crime movie.

Not just cops. The Narcotics Strike Force.  Continue reading

The View From Below

My old pal Gideon Strumpet twitted something the other day that caught my eye.

I love when law students become internet famous for the law and write columns but don’t represent clients.

Law students, new lawyers, law professors are all busy writing about very interesting subjects of great social and legal import, about which they know nothing.  In the past, I’ve noted the problem when non-lawyers write about the law, giving what would appear to others to be sound legal advice. Except it’s totally wrong.  But hey, they aren’t lawyers and have no obligation to get it right. They have a right to be as wrong as they want to be, and anyone who doesn’t realize they’re being fed garbage gets what they deserve, right?

But what about those who seek to appear credible?  They promote their qualifications to wrap themselves in ascribed credibility, and perhaps write (for free, naturally) for a high-readership rag that gives them attributed credibility.  The only thing they lack is attained credibility, but readers will never realize that they have done nothing to earn cred. Continue reading