License To Kill

Last week it was the cyclists, dying on the fender of the devil car. This week, it’s the children.  Why does the New York Times hate cars?

Cooper was holding my husband’s hand as they crossed 97th Street and West End Avenue. They were in the crosswalk, with the light. By law, they had the right of way. The taxi driver failed to yield while making a left turn.

According to the mayor’s office, driver error is a factor in 70 percent of pedestrian deaths in New York City, yet motorists are rarely held accountable. The Department of Motor Vehicles reports that motorists are cited for careless driving in less than 1 percent of crashes. Even fewer drivers are charged with a crime. How can drivers who kill innocent pedestrians go free?

Seventy percent?  How is that possible?  It must be that the balance of pedestrian deaths comes from being run down by Chinese food delivery bikes and people walking head first into the ubiquitous scaffolding poles while deeply engrossed with Facebook updates. I would have expected 90% or better.

But Bill de Blasio has a tragedy, a child killed in a crosswalk, and it cannot go to waste. Continue reading

The Economist Discovers Plea Bargaining

The air is turning cooler. Leaves are turning from green to reddish brown. And plea bargaining sucks and should be discarded.  Autumn has returned.  Just as The New Yorker, in an article on the old Kalief Browder story, discovered that the legal system in the Bronx sucks, The Economist discovered that plea bargaining is fraught with evils.

It does a fairly sound job of listing the most obvious flaws with plea bargaining:

Alas, the process is open to abuse (see article). Prosecutors hold all the cards. If a defence lawyer offers a witness $100 for a false alibi, he is guilty of bribery. But if a prosecutor offers a co-operating witness something far more valuable—the chance to avoid several years in a cell—that is just fine. With so much at stake, snitches sometimes tell prosecutors what they want to hear. One study found that nearly half of the cases in which people have been wrongfully sentenced to death hinged on false testimony by informants, typically criminals who were rewarded with lighter punishments.

Hold the presses. They needed a study to tell them that snitches, typically criminals who were rewarded with lighter punishments, give false testimony?!?  Oh my! Continue reading

Puppy Time At The Supreme Court

No, not a post of puppy pics (sorry), but a question that’s been floating around since I read Orin Kerr’s post about the Supreme Court’s grant of cert in Rodriguez v. United States.  You may recall that the 8th Circuit held that prolonging a stop for 7-8 minutes was a de minimus delay, while the Supreme Court of Nevada held in State v. Beckman that nine minutes is too long.

This was the topic of a post a while back, but is back on the front burner in light of the cert grant.

Importantly, today’s grant is on whether there should be a “de minimis” rule at all, not on how low long it should extend.

Being all legal realist and all, the question is how will the cops be held to comply even if the Supreme hold that any extension or delay following the completion of the justification for the stop is prohibited? Continue reading

Choice, Poor Choice and Then What?

The hope, or maybe what is better characterized as the warning, that 25-year-old Maverick Ray wouldn’t resist the admonitions of so many other lawyers because he’s a young man of his generation who will not be bullied, died.  What is it about pushing back?

Ray, retained to handle a death case in Texas because his six months of experience as a lawyer made him every bit as capable as any other incompetent lawyer to do so, was hired because it struck his new client (beginning with Sharon Lynch, the defendant’s fiancé) as a really good idea.

“I didn’t want anyone from Walker County,”

She said she used the Internet to look for a criminal defense attorney in Houston. Lynch said she talked to “less than five lawyers” before speaking with Ray, who said he would take the case.

Lynch said she knew Ray had not been practicing long, but hired him because he was “fresh and not part of the old boy network.” She also said at the time she was under the assumption he was qualified to handle a death penalty case.

Continue reading

Gov. Cuomo: New York Can Be Just As Foolish

Never one to be the only person left in the room without egg on his face, Governor Andrew Cuomo is leaping blindly aboard the speeding train of collegiate gender politics by ordering the colleges and universities within the SUNY system to adopt the “affirmative consent” rules enacted by California.  Take that, Governor Moonbeam!

To explain the need for these policies, Mr. Cuomo — who pointed out that he is the father of three girls — cited statistics on how many college women are victimized and how many do not report the assaults, and called the numbers “breathtaking.”

Grasping why “statistics” reflect whatever nonsense the advocacy group that manufactured them wants them to reflect is very hard work. Latching on to stats that justify an action is easy. Hey, if they can make them up for animal abuse, why not here?  Of course, counting non-reported events is usually a dead giveaway, because they were never reported, but as long as one closes one’s eye tight enough, anything can begin not to seem as mind-numbingly stupid as it really is.

So what has Governor ordered? Continue reading

The Fragile Remedy of Suppression

Remember how cool it was when the Third Circuit ruled in United States v. Katzin that GPS tracking by law enforcement required a warrant?  Good times. Heady days. Was it possible that Justice Alito’s old stomping grounds would be the court that righted the craziness?  It surely looked that way.

But the court did one thing more, one thing that was critical to its ruling in light of the Supreme Court’s ill-conceived Herring decision.  The panel held that the use of GPS tracking wasn’t saved by the good faith exception under the Supremes’ similarly ill-conceived Davis decisionOrin Kerr explains:

The Third Circuit disagrees, concluding that officers should know that GPS devices are so different from beepers that the beeper cases can’t apply to GPS surveillance:

As our foregoing discussion suggests: we disagree with this position. The difference between beepers and GPS trackers is one of kind, not degree. Any time technology shifts in this way, courts should expect that law enforcement will tread lightly and will refrain from reasoning by (potentially ill-fitting) analogy.

Continue reading

Jenny Miranda Keeps Trying (Update From Jenny)

I deleted the first email received from PR Executive Consultant Jenny Miranda. But the next week, another came. I replied to this one that she should stop sending me emails. But the next week, another came. I replied more strongly this time, suggesting that her efforts on behalf of her client were going to backfire if she didn’t stop.

Jenny wrote me back this time, telling me that my email “wasn’t very nice.”

I will remove you from my list. However, your comments weren’t very nice. If you don’t want emails from PR reps, please contact Gorkana to get yourself removed from their database.

Despite your insult, I hope you have a lovely day and find happiness.

Continue reading

Hans Bader: Intoxicated Is Not Incapacitated

While there is no shortage of issues to be taken with California’s new “Yes Means Yes” law, one of the fallacies being passed around is that it prohibits sex between intoxicated persons.  Indeed, this may well be a purpose to the buzz surrounding the law, as it’s a trope that any woman who is under some undefined state of influence from drugs or alcohol is incapable of giving consent.  This lends itself to the notion that she can awake the next day and decide whether the prior evening’s activities were fine or rape.

Hans Bader, who has forefront of keeping tabs on such laws, and their related impacts, asked that I post his letter to the editor to the San Francisco Chronicle (which inexplicably calls itself the SFGate on the interwebz):

“New law redefines consent at college” (Sept. 29) claimed that California’s new “affirmative consent” law regulating college sex “says that a person cannot give consent if they are intoxicated.” But it does not say this. What it actually says is that “consent” is absent when “the complainant was incapacitated” due to alcohol.

Most intoxicated people are not legally deemed “incapacitated” and can consent, as law professor Anne Coughlin and the Foundation for Individual Rights in Education have noted. Continue reading

Bronx Travesty, Redux

The horrific tale of Kalief Browder’s loss of three years of his life to systemic failure is back on the front burner, courtesy of a new article about the case in The New Yorker.  It’s not that Browder’s story isn’t already well known, as it was the subject of much castigation and teeth gnashing in stories from December, 2013.

Ah, the Bronx. Where the system died and no one told it.

In 2010, a complete stranger accused Kalief Browder, then just 16 years old, of robbing him. Browder was walking home in the Bronx from a party one night when police officers stopped and arrested him. Browder says officers told him he’d probably be freed later that night. Instead, Browder would go on to spend three birthdays on Rikers.

This past January, Browder was offered a deal: Plead guilty and be sentenced to time served, or plead not guilty, and if convicted, face another 15 years in jail. Browder, who has always maintained his innocence, refused to plead guilty, and in June, charges against him were suddenly dropped.

Lawprof Gerard Magliocca gave the heads up to the new, lengthy article in his post at Concurring Opinions, where he offers that he’s rarely shocked, but this one got to him: Continue reading

Book Review: David Lat’s Supreme Ambitions

Picture Lat, lying naked except for a Harvard College ring, on a silky, billowing black background with what appears to be a sleeve showing the barest of black velvet stripes covering his groin, arms and legs akimbo, with one eyebrow slightly raised, eyes half shut as if meant for only you, lips slightly apart, glistening with a hint of tongue.  This is Supreme Ambitions.

For anyone who remembers the early days of Underneath Their Robes, when A3G obsessed over whether judicial hotties wore boxers or briefs, or the glory days of Above The Law, when it was just David Lat, having outed himself with Jeffrey Toobin as one of Chris Christie’s male Jersey federales, his first novel, Supreme Ambitions, will bring back the glow of what made Lat stand out above all others.  The snark, wrapped in obsession about the world of the elite; Top schools, top firms, top judges and most of all, the path to the top, and yet with that hint of humility that made him endearing.

Published by the ABA of all people, Supreme Ambitions* is pure Lat, the original Lat before he became a blogging impresario, handing off ATL real estate to any bobblehead who would write for short-lived adoration and more concerned with the number of pop-up ads than shameless self-promotion.  That Lat, the one whose obsession with a world that few ever see, still lives, and he’s back in this book. Continue reading

The Slippery Slope of Risk

When Sean Groubert made the split second decision to pump bullets into Levar Jones for being too enthusiastic in his compliance with commands, he was fired, prosecuted and (sort of) universally condemned.  He was able to put together a sufficient excuse for his fear of the unknown, but it flopped.  For those who saw Groubert’s conduct as well beyond the limits, consider how differently this might have played out in Alabama.

On March 6th, Michael Davidson, age 20, was traveling on I-85 on his way to to Seymour Johnson Air Force Base near Goldsboro, NC.  Davidson is an Airman First Class in the U.S. Air Force and was reporting for duty.   Near Opelika, Alabama, he got into a minor collision with an 18-wheeler.

Davidson exited his vehicle to go talk to the semi-truck driver.   About halfway there, he reportedly heard a noise from behind him — “hollering.”  A police officer was now on the scene and was shouting at Davidson.

Police reportedly told to raise his hands in the air, and for reasons unclear, Officer Phillip Hancock of the Opelika Police Department opened fire.  Davidson was shot in the stomach.

Continue reading

Of Princes and Princesses Who Say “Yes!”

The Wall Street Journal noted that Princeton has hopped aboard the curtailment of due process rights for male college students.  Wesleyan University has announced that it will require its two fraternities to go co-ed. Forbes pulled down a post by MIT’s Chi Phi fraternity alumni house president and contributor, Bill Frezza, and summarily “fired” him, for writing “Drunk Female Guests Are The Gravest Threat To Fraternities.”  An editorial in MIT’s Tech disavowed his “regressive” victim blaming.

California has now enacted a law, previously discussed as SB 967, requiring colleges to establish an affirmative consent standard, colloquially known as “yes means yes,” for sexual contact.  Sexual assault is anything that isn’t approved, and affirmative consent is an ongoing requirement during the course of human contact.

Contrary to reports, the law doesn’t turn sex into rape per se when one or both have been drinking alcohol, but when one is “incapacitated” such that their consent cannot be deemed voluntary.  It’s a hard line to ascertain, but the message is to err on the side of precaution when drinking is involved. Continue reading