Memo to United States Attorney’s offices across the nation: The AUSAs in the Southern District of New York, the one in Manhattan, think they’re better than you.  They are the elite, the best, the smartest, the toughest. They will not be questioned. They will not Reason.

Since Ken White at Popehat revealed that libertarian website Reason received a subpoena for every bit of information they could conceivably offer about certain commenters, it’s come back to an AUSA in the Southern District of New York, a kid named Niketh Velamoor, who found his way to the office through the usual Harvard law, judicial clerkship, biglaw seat-warming, path.

Ken first did the lawyerly, and right, thing by calling Niketh before publishing the subpoena, lest he somehow impair a serious investigation that didn’t appear on the surface of the flamingly idiotic subpoena.  It was the proper thing to do.  Just because the investigation appears ridiculous on its surface doesn’t mean there isn’t something serious lurking beneath.

Did Niketh thank him for his concern in reaching out?  Nope. Instead, he fed him some equivocal nonsense to create an innuendo of fear that he might be violating a court order by disclosing the subpoena. Continue reading →

Is it not enough that nine people, nine human beings, are dead?  Is it not enough that they were murdered in a church, apparently by a twisted young man who sat there for an hour with his soon-to-be victims, and then executed them?  Is that not enough tragedy to satisfy whatever lust burns within us?

Oh no. War of another sort has broken out, where wild-eyed madmen fight to see who gets to own this nightmare to use it for their own agenda, whether that’s political or clickbait.  It’s not about what happened in Charleston, though some have already condemned the accused killer, Dylann Roof, to the deepest region of hell for being pure evil, even though he might just be a deeply flawed human.

But what happened in Charleston.  Was it terrorism?  Was it racism?  Was it the work of a madman? Was it a “mere” crime?  What?  Without putting it in a pigeonhole, how can it possibly make sense and be used to push a larger agenda?

At Fault lines, I took the Daily Kos’ Shaun King to task for his rush to characterization. Continue reading →

There was no question that New York’s speedy trial law, Criminal Procedure Law § 30.30, was a wreck.  It had long been gamed by prosecutors, with the willing acquiescence of judges who shrugged and said “meh, what do you want me to do?”  This was no secret, and was publicly laid bare in a New Yorker article by Jennifer Gonnerman.

And people “oohed” and “aahed,” and nothing was done about it.

Now that Kalief Browder committed suicide, there is a dead young man after whom a law can be named, too tempting for politicians to ignore. And so was born “Kalief’s Law,” because they could.

State Senator Daniel Squadron and Assemblymember Jeffrion Aubry announced legislation (S.5988) to fix New York State’s “speedy trial” law following the recent death of Kalief Browder, who spent three years in pre-trial detention at Riker’s Island. Kalief’s Law closes a legal loophole that forces defendants to endure significant delays before trial, even while in jail, despite the time limits established by law. This change will limit delays by prosecutors and the court, so that defendants are afforded their constitutional right to a speedy trial.

Continue reading →

Given the experience of politicians with sexcapades, one might hope they would be a little more circumspect in their embrace of the flavor of the month redefinitions of what constitutes a sexual assault for college students. After all, had that been the rule when they went to Fordham, there’s a good chance they would be digging ditches today.

But no. Neither New York’s leaderless Assembly nor Senate had the guts to say no means no, and gave in to Governor Andy Cuomo’s gift to his daughters. From the New York Times:

New York’s political leaders have reached a deal on one of Gov. Andrew M. Cuomo’s legislative priorities for 2015, saying they will adopt new laws intended to change the way sexual assaults on all college campuses in the state are handled.

The agreement, announced on Tuesday, proposes legislation that would establish a statewide definition of “affirmative consent,” and define consent as a “knowing, voluntary and mutual decision among all participants to engage in sexual activity.”

Which means . . . what? Continue reading →

On the heels of the systemic killing of Kalief Browder, the teen who sat for three years, much of it in the SHU, awaiting dismissal of case, the New York Post went in search of other pre-trial detainees with similar prolonged detention. They came up with a doozy, Carlos Montero.

Carlos Montero, now 24, was with two pals when one fatally stabbed a man and the other slashed another during a robbery in Washington Heights on Oct. 23, 2008, authorities have charged.

Montero, who has spent six years and eight months in Rikers, attempted to get his case tried separately — while one of his alleged cohorts fights the DNA evidence — but the judge balked, and his lawyer won’t even seek bail for him now because he says it’s a lost cause.

“I’m depressed in here. I just want to go home,’’ said Montero, who entered the jail at age 17.

The next Kalief? Well, yes, in the sense that he was a teen when he went in, and his pre-trial detention has been outrageously long.  But that’s where the similarities end.  Unlike Browder, who was arrested for theft of a backpack, a relatively minor offense in the scheme of crimes in the big city, Montero was taken down for murder.  Continue reading →

When Jeff Blackburn, a founder of the Innocence Project of Texas and its chief counsel, tendered his resignation, it raised a storm of controversy. Jeff was gracious toward his organization, but it wasn’t his way to go quietly into the night.  He didn’t quit without reason, and yet he didn’t seek to tank the organization he built that had accomplished extraordinary things.  It’s not that the legal system in Texas is so much worse than anywhere else, but that they like killing people down there.

But then came an “announcement” that was more than he could take.  It hit the fan from three sides, the IPTX website, the Houston Chronicle and a blog, Grits for Breakfast.  Aside from Jeff, the other person who ran the show was the IPTX executive director, Nick Vilbas.  Together, they made an underfunded, overworked organization do things that no one would have believed possible. They exonerated the innocent.

While Nick remains, as far as he knows, Executive Director, having made a promise to stay on long enough to facilitate the transition to “new management,” and honoring his promise to do so, because honorable guys do that, the announcement hit hard.  There was a new Executive Director. Not just new, but one who had worked at IPTX before, but was “let go” as he just wasn’t worth keeping on. Continue reading →

It’s been repeated so many times, by so many people, academics, politicians, media outlets, after having been thoroughly debunked that it’s just embarrassing.  So what to do when a narrative is built on a lie?  Throw a new survey!  And the Washington Post in conjunction with the Kaiser Family Foundation did just that.

As Ronny Reagan so effectively said, “there they go again.”

Twenty percent of young women who attended college during the past four years say they were sexually assaulted, according to a Washington Post-Kaiser Family Foundation poll. But the circle of victims on the nation’s campuses is probably even larger.

What? The 1 in 5 women will be sexually assaulted is for real?  Does that mean the Bureau of Justice Statistics’ report on Rape and Sexual Assault Victimization Among College-Age Females, 1995–2013 showing that it’s really 1 in 30 is wrong?  Don’t be ridiculous.

From Ashe Schow at the Washington Examiner: Continue reading →

The role John Yoo played in the DoJ’s embrace of torture is well known, though it didn’t do much to hurt Yoo’s landing a cushy job torturing law students at Cal Berkeley.  But the New England Journal of Medicine notes, with obvious disgust, the bad things that happen when physicians and lawyers work too well together.

In December 2014, the U.S. Senate Intelligence Committee’s report on torture was released to the public. The 600-page report (a redacted summary of the still-classified 6000-page report) documents in disturbing detail the use by the Central Intelligence Agency (CIA) of physicians, lawyers, and psychologists in its post-9/11 torture program at more than a dozen “black sites,” or secret prisons, around the world.

To begin to understand the torture, we believe it’s necessary to understand how physicians and lawyers collaborated to overcome their professional inhibitions.

See that?  Not to say that it’s undeserved, but it’s as if doctors’ mommies let their babies play with the bad boy lawyers, and look what happens. Continue reading →

In a New York Times op-ed, Drexel lawprof Adam Benforado explains that the legal system’s failings are ours.

WHAT would it take to achieve true criminal justice in America?

Imagine that we got rid of all of the cops who cracked racist jokes and prosecutors blinded by a thirst for power. Imagine that we cleansed our courtrooms of lying witnesses and foolish jurors. Imagine that we removed every judge who thought the law should bend to her own personal agenda and every sadistic prison guard.

We would certainly feel just then. But we would be wrong.

From the outset, the premise is marred by the stated goal, “true criminal justice.” Is there such a thing? If there is, would we really want it? The knee-jerk reaction is, “of course we would, numb nuts. Why wouldn’t we?” Continue reading →

Walter Olson, at Overlawyered, here and here, Amy Alkon and Hans Bader have gone to town on an Economist article about how the Americans with Disabilities Act may change the nature of the internet.  Where once there were websites and blogs, there will soon be public accommodations.

Generally, the First Amendment gives you the right to choose who to talk to and how, without government interference. There is no obligation to make your message accessible to the whole world, and the government can’t force you to make your speech accessible to everyone, much less appealing to them. 

But that, of course, is speech.  And the internets are a thing, even if only virtual.

But now, the Obama administration appears to be planning to use the Americans with Disabilities Act (ADA) to force many web sites to either accommodate the disabled, or shut down. Given the enormous cost of complying, many small web sites might well just go dark and shut down. Continue reading →