Monthly Archives: June 2016

How’s That Crowdsourcing Working For You Now?

In the aftermath of the Brexit vote, while all the really smart people are explaining that the Brits who voted to leave are stupid racists, few (if any) seem to factor into the equation that this is what happens when you leave decision-making to the will of the majority. You can argue whether the vote actually reflected the will of the majority, but that, too, is a fool’s argument. They took a vote. Leave won. That’s how voting happens. Excuses don’t change it.

Watching the blind adoration of every nouvelle concept in the past decade, there would seem to be no way to miss the fact that early adopters, loud and passionate, at the fringes keep trying to push their way to the center, to make their idea the mainstream. They talk their way past the objections, sometimes with slogans, other times with anger and viciousness, always with the certainty that simpletons clutch to their chest that they are right.

Maybe the Brits who voted to leave are stupid racists. So what? Even stupid racists get to vote. More realistically, even regular folks who aren’t on the cutting edge, who aren’t willing to sacrifice what few gains they’ve made in their own life to your gender and racial politics, to the sacrifices you feel are worthy because of whatever sense of fairness and equality you feel, get to vote. Continue reading →

One Less Twitter Follower For All The Wrong Reasons: @Ebolamerican

Milo Yiannopoulos, who twits under the name @Nero, trades in outrageousness to make his gay conservative point as tech editor at Breitbart. Hate him all you want (and for SJWs, that was plenty), but it failed to serve as compelling justification to remove his blue check mark. Robert Stacy McCain wasn’t so lucky, being stricken from the twitters for being too harshly conservative.

Now, it’s Josh Smith.

Josh Smith, a Cornell graduate who runs a private legal practice in Pennsylvania, had his account “@ThisIsJoshSmith” suspended and then restored five times over the course of six months, without any explanation from Twitter. This led Smith to believe that his suspensions were “false positives” – a flaw in the platform’s algorithms.
Josh Smith comes across as polite, mild-mannered, and intellectual. He publishes long, thoughtful posts on politics, the law and society on his personal website, which only rarely descend to personal attacks. If he wasn’t a conservative, he’d be the last person you’d expect to have had his Twitter account suspended multiple times.

Continue reading →

Strict And Strictiness

The outcome of Fisher v. University of Texas, holding that the holistic consideration of characteristics such as race that would otherwise violate the Equal Protection Clause of the Fifth and Fourteenth Amendments is constitutional, is one I support on a policy basis. In other words, I believe that a diverse student body provides inherent virtues.

But “stuff I believe” is hardly a valid legal test, any more than stuff you (or anyone else) believes. And indeed, it wasn’t the test applied by the Supremes, because the law requires that UT’s race-cognizant admissions pass muster under strict scrutiny. Before you scream that strict scrutiny is too high a bar, remember that it’s the same test if the same characteristics were used, but in the opposite direction. Would a college admissions policy favoring whites only be constitutional? Strict scrutiny applies there too. Happy now?

But Hans Bader raises a problem that might easily be obscured by the fact that UT’s policy is on the side of the angels.

The Court conceded that under its own past precedents, “A university’s goals cannot be elusory [sic] or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.” It then upheld the use of race to promote vague “educational values” whose achievement was unproven (and which would probably not be measurable to begin with) as a “compelling government interest”: Continue reading →

Saving Campus Due Process Isn’t A Game For Dilettantes

They mean well. They always mean well. Lord, save us from the well-intended.

Dubbed the Campus Equality, Fairness, and Transparency Act (CEFTA), the bill would largely overturn the regulatory apparatus that has governed campus sexual-misconduct proceedings since the Department of Education’s 2011 “Dear Colleague” letter, now the subject of litigation.
Though CEFTA is written for introduction in Congress, its author – Stop Abusive and Violent Environments – wrote that it could be modified for the state level as well.

The bill won’t be enacted, so it’s not like it’s worth the time to parse it in detail. This is good, because writing a law is very difficult and while this was a fine effort for n00bs, it’s replete with internal inconsistencies. What? Well, how about the accused having the right to remain silent, but the complainant having the right to “safely” (whatever that means) examine the accused. Continue reading →

No Pricks Allowed

On one level, the Supreme Court’s ruling in Birchfield v. North Dakota seems like the kind of opinion we hope for. It gives us a rule, a bright line test, as to what the police are authorized to do and what they’re not. The holding is that after an arrest, they can compel a breath test, but they can’t compel a blood test without a warrant. A job well done (finally)?

Absolutely. Except for the lingering questions about how this plays out in real life. The perennial bugaboo of law is that final official decisions are made in an ornate, quiet, impressive, dignified courthouse, while it’s executed on dirty, mean, nasty streets.

Putting aside the obvious detail that makes this ruling somewhat less significant than it might appear, that a cop can get a warrant to do pretty much anything he wants at any time of the day or not with a quick phone call, rendering the rest of the ruling rather silly, at least it forces the process to pretend to be a little closer to the unloved warrant clause than it might otherwise be. But then there are the easy words used by the majority that seem so very clear but get all fuzzy on the road.

You’re under arrest. Continue reading →

The Floyd Chronicles: With All Deliberate Speed

Sure, there were other pressing matters requiring New York City’s attention. Like crafting an effective law that authorized people to make up their own words and titles, and mandating that other people use them upon pain of death. But then, how hard was it to put body cams on a thousand cops?

Three years have passed since a Federal District Court ruled that New York City’s stop-and-frisk program violated constitutional prohibitions against unreasonable search and seizure and discriminated against minority citizens, who were disproportionately and unjustifiably singled out for stops. A court-ordered reform process — overseen by an independent monitor — is off to a promising start. But some of the thorniest and most contentious issues lie ahead.

Three years? And this is “a good start”?

In 2011, at the height of the program, the police stopped people on the streets an astonishing 685,000 times — up from just 97,000 a decade earlier. In practical terms, this meant that individuals in heavily policed neighborhoods could be stopped on the street without cause multiple times within a given year.

Continue reading →

Bringing Down The House

It’s hard, if not impossible, for this picture not to evoke a reaction.

House Democrats staged a sit-in to, something, something, “common sense” gun control. There were twits aplenty about how it was just “common sense,” a phrase with which I’ve taken some small issue in the past, but only because it’s a ploy to pander to the hard of thinking in order to make their feelings appear rational in the absence of any thought at all.

The concept of a sit-in raises some questions as to its purpose, what the participants hoped to gain. After all, they are sitting on the ground in a chamber where they have comfy seats, where the public cannot tread, where they are the stewards of the chamber, together with their Republican colleagues. What were they hoping to gain? Continue reading →

Cross: Shon Hopwood, From Prisoner To SCOTUS To Scholar

June 22, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Shon Hopwood, one-time jailhouse lawyer who won before the United States Supreme Court, turned lawyer, scholar and graduate teaching fellow at Georgetown Law School’s Appellate Litigation Clinic.

Q. You grew up in a small town in Nebraska, David City, where you were a high school basketball star, good enough that you won a scholarship to Midland University. But in 1994, you dropped out to join the Navy. Why did you trade Nebraska for Bahrain? You had the ticket to the American dream, and chose to walk away? It obviously wasn’t because you lacked the intelligence to succeed, so what drove your choice to leave? And why choose the alternative of the Navy? Was there a sailor inside you yearning to be set free?

A. I didn’t voluntarily leave Midland. I was kicked out of school. As a college athlete, you only have time to do so much. It is very difficult to both go to school, practice and then party. I chose the latter two. I never enjoyed school and academics; I was a solid C student all through high school. It wasn’t until I discovered the law and started researching legal problems and writing out solutions that I finally began to relish things of an academic nature—probably because postconviction and appellate work melds helping people (the extroverted part) with thinking about various arguments and framing devices (the introverted part). I like the mix.
As for the Navy, that choice was born out of necessity. I had been kicked out of college and my parents wouldn’t allow me to move back in their home (good for them). I rented a dilapidated apartment in my hometown for $200 a month and went to work at a factory. Doing the same job over and over again was, for me, a form of torture. So I decided to go see the world and the Navy offered that. My dad also thought the Navy might teach me some discipline, which I sorely needed. But even the Navy couldn’t break through my foolishness.

Q. In 1996, you nearly died from pancreatitis and were honorably discharged from the Navy. By your own account, you ended up back home, underemployed, depressed and addicted to drugs and alcohol. What did your future look like to you at that point? When your best friend from high school invited you to rob banks with him, you said yes. You and your friends robbed five banks in the Omaha area before you were done. Were you any good at it? What did you spend the loot on? And at the time, did it give you a sense of purpose you felt you were lacking? How did you think it would turn out?

A. I actually came back home worse off from the Navy than before I left. I had no idea what I wanted to do with my life, and I struggled through a series of dead-end jobs. I had gotten myself in trouble for attempting to forge a check. I was also hanging around other people who were as moronic as I was. We spent weekends drinking and chasing after girls. I was an idiot, to say the least.
And then my lifelong friend asked me to a bar one night and, while we drank watery beers, he asked if I would help him rob a bank. Most people would have laughed it off, maybe said, “you’re crazy,” or even, “no.” But not me. In my immature mind, it seemed like a solution to my problems.
I was not a good bank robber. The longer it went, the sloppier I got. By the last robbery, I left a palm print on the getaway car. I just didn’t care anymore what happened to me.
I never had any illusions about how it would turn out. I expected to end up caught or dead. I often told my friends that when the police came for me, I hoped they’d end it with a bullet to my brain. Those claims weren’t hyperbole. That was my plan. To live the fast life until law enforcement found and killed me. I sure was stupid.

Q. Two years later, you were caught when one of your friends snitched. You pleaded guilty to five counts of bank robbery for 87 months in prison, and one count of use of a firearm for another 60. What goes through a 23-year-old’s head when he’s staring at over 12 years in prison? Were you angry at the judge, your friends, yourself, the world? Did you realize what it meant to face what’s euphemistically called “prison culture”? Did you think your life was over?

A. I, like most people in their early 20s, couldn’t fathom what 12 years meant. It may have been a life sentence, for all I knew. I remember thinking that I’d be 30-something when I got out, which meant I’d be really, really old! For the first few years in prison I did think my life was over. But then I got a little older, a little wiser, educated myself, and realized it would be way more fun to prove to everyone that my life wasn’t over than to prison. So I never held any animosity towards Judge Kopf, my sentencing judge.

Q. Shortly after you got to Club Fed, you started working in the law library. Though you’d had no legal education, you discovered you had mad skillz for understanding court cases and following legal arguments. After you learned about § 2255 motions, you filed one, invoking the newly-decided Apprendi v. New Jersey in an effort to get your sentence reduced. It didn’t work out. Were you discouraged, or motivated to keep trying? What made you decide to be a “jailhouse lawyer”? What was in it for you? In your memoir, Law Man, you write about the brutal prison environment. What impact did it have on pursuing jailhouse law? Any cognitive dissonance involved in learning the sanitized version of the criminal justice system compared with the reality version you lived?

A. Being a jailhouse lawyer isn’t very glamorous. It meant long hours reading Federal Reporters and pecking out a brief draft on a typewriter. At least, that’s how it was for me. I might have gotten frustrated had the Fellers case not happened. It is very frustrating to write a brief with meritorious issues only to be rejected out-of-hand because the petition is filed pro se. And I watched that occur with regularity during my time as a jailhouse lawyer. But the wins kept me motivated. And later on, when I had a budding friendship with my now wife, I was motivated to learn more about the law because I was hoping to have a career as a paralegal when I got out of prison.
As to the cognitive dissonance, yes the actual criminal justice system is much different than most realize. Very few people understand all its dimensions well. And, unfortunately, academics and appellate judges probably understand it less than most. It’s not their fault, though. Academia and the federal judiciary reward rule followers, so I think it is difficult for them to understand that many, maybe even a majority of Americans are not strict rule followers. So how do we design a system taking that into account? I don’t think people who have spent the majority of their life making decisions to get a seat on the Supreme Court or Harvard law faculty necessarily have the best answers.

Q. In 2002, a fellow prisoner, John Fellers, approached you about his case and you agreed to help him out. As his “jailhouse lawyer,” you petitioned the Supreme Court for review, and in extreme defiance of the odds, they granted cert. That’s a huge accomplishment for an attorney with years of experience. For a self-taught prisoner, it borders on the fantastical (I called you a “freak of nature,” which made you bristle). Seth Waxman, a former Clinton solicitor general, agreed to handle oral argument on condition that you be involved. Together, you won a unanimous decision: Fellers’ case was remanded on Sixth Amendment grounds. What was it like, preparing for a Supreme Court case from a prison cell? Waxman kept you closely involved; what were your responsibilities? Did you appreciate the significance of what you were doing? And what does a prisoner say to himself when he wins at the Supreme Court?

A. Freak of nature sounds like something I should have tattooed on my back! Getting cert. granted as a jailhouse lawyer may, no matter what I do as a lawyer for the next thirty years, rank as the singular best accomplishment of my career. Which sucks. Nowhere to go but down! That said, I probably wouldn’t have a legal career now had that not happened for me twice.
My big break occurred when Seth took over the Fellers case. I think most people of his caliber (former Solicitor General, Harvard undergrad, Yale law school) would have said, “hey, Mr. Jailhouse Lawyer, thanks for getting cert. but I will take this over now.” Anyone other than Seth might not have kept me involved. But Seth did. I called him and he answered. He sent me drafts of the merits briefs and I’d send notes back to him. And at one point, I had a conference call with Seth, Noah Levine, and two other lawyers from WilmerHale, so that we could discuss oral arguments. I appreciated the significance of Seth’s graciousness, but I don’t know that I truly understood how strange it was to litigate in SCOTUS as a jailhouse lawyer.

Q. After Fellers, you were unsurprisingly in demand as a jailhouse lawyer. Were you able or willing to help everyone who came to you? How did you deal with hopeless cases? More broadly, do jailhouse lawyers deserve their rep? Were you the one guy who wasn’t incompetent or trying to scam people? Are all jailhouse lawyers entitled to a presumption of good intentions and competency? The flip side is that there are few avenues other than jailhouse lawyers for prisoners, especially poor prisoners, to pursue post-conviction relief. Is there a tipping point between jailhouse and practicing lawyers? What should private lawyers do to fill the hole?

A. Jailhouse lawyers aren’t that different from normal lawyers. Are there scammers and the incompetent? Yes. But the same is true for lawyers. Some of the worst degenerates I saw and still do see are the lawyers paid to do prisoner post-conviction motions. The only bar that is worse are immigration lawyers.
Most jailhouse lawyers don’t intend to be incompetent. They just don’t know they are. There is a rather big incentive to not be an incompetent jailhouse lawyer. I once watched a jailhouse lawyer really mess a case up and the judge wrote something about the inadequacies of the filed brief in the judge’s order. The next day the jailhouse lawyer woke up to his client swinging a padlock inside a sock. Padlock breakfast burritos are not something that concerns lawyers.
Jailhouse lawyers are not a long-term solution to a lack of representation. They just aren’t. Society needs to adequately fund public defenders and other groups to fill in the gap. Pro bono lawyers aren’t the answer either. Most noncriminal lawyers can’t adequately represent a criminal defendant. Some criminal trial lawyers can’t adequately represent a client on appeal. And some appellate and trial attorneys know nothing about habeas practice. In Law Man, I recount a story about a lawyer appointed by a federal district court judge to represent a friend of mine after we had filed my friend’s habeas petition. I called the lawyer one day and he said he was going to voluntarily dismiss the petition because it was untimely. I ended up screaming at this lawyer when he wouldn’t listen as to why the petition was timely filed (the prison mailbox rule). I had to threaten to file a bar complaint before he finally relented.

Q. After you were released in ’08, you went to school at Bellevue, hoping to become a paralegal. That changed when you got a full scholarship to the University of Washington School of Law, courtesy of the Gates Foundation. How did that happen? What impact did your criminal record have on your decision to go to law school? On Day 1, who walked into the classroom, with those bright-eyed, bushy-tailed, sheltered budding lawyers?

A. I decided to apply to the University of Washington School of Law after Professor Eric Schnapper called me. Eric was one of my employer’s biggest clients (Cockle Legal Briefs) because he often litigates cases in the Supreme Court. Eric encouraged me to apply and said I should come to school there. I applied to school and to the Gates Program, and I was chosen as a Gates Scholar after two days of interviews in Seattle.
Going into a classroom where everyone knew my story but I knew no one else’s was difficult. At first, I had this awareness that maybe I shouldn’t be in law school. But after I realized everyone else had the same feeling, I quickly reversed course and just got down to business. I don’t remember a lot from those first few months other than my daughter Grace’s birth, living in a new city where we knew no one, and working on a series of Supreme Court filings (three briefs in total) that I had been paid to write in the summer and of course things got extended into the school year.
My classmates made school many times better. Especially my small section. They taught me about all things millennial and I taught them about how to make a shiv out of a toothbrush or a homemade tattoo gun from a beard trimmer. With apologies to my professors (who were also wonderful), we had long running threads on Facebook that occasionally heated up during class. I’m a trash talker and sometimes my classmates brought out the best in me!

Q. At UW, you interned with Judge John C. Coughenour of the Western District of Washington. Then you got one of the most prestigious clerkships in the nation when you signed on with Judge Janice Rogers Brown of the D.C. Circuit Court of Appeals. You’ve kept pretty quiet about your time with Judge Brown, in particular. Not to highlight the brutally obvious, but the juxtaposition of inmate and circuit court clerk is pretty stark. Did the judges “get it”? Did you bring the baggage of your experience, or were you now part of the sanitized world of federal law clerks? Seeing how the sausage was made, did it change your view from the cell? Did you change the judges’ view?

A. I have been quiet about my time as a clerk for one reason. In my view, clerks should be what my dad said about children: “seen but not heard.” So I don’t speak publicly about my time at the court.
I can tell you that Judge Brown is a treasure. I have never met a more genuinely humble lawyer, let alone a more humble federal judge. We often talked for an hour about the law and life, and I cherished those conversations. She never once treated me any differently from anyone else. If it’s not completely obvious, I adore her. I miss working for her.
Whenever we had a D.C. Circuit clerkship happy hour with clerks from other chambers, I always felt out of place. Every happy hour felt like a Yale and Harvard law school reunion because those two schools placed the majority of clerks on the D.C. Circuit. Yet the other clerks and judges were always very nice. It was a wonderful job.

Q. Now you’ve graduated, published numerous law review articles, gotten an LL.M at Georgetown Law and a fellowship at its Appellate Litigation Clinic. How do you balance your teaching and litigation responsibilities? How did your past prepare you for helping 3Ls get their chops? Are they up to it? What do you see as the most significant hurdle for law students to overcome? Do you give them a reality check as to what it means to be entrusted with another person’s life? Do they get it? And what’s it like for a former federal prisoner to rep federal prisoners in federal court? Are you considered one of them, one of us or something in between?

A. My boss, Steve Goldblatt, is old school in his belief about clinic pedagogy. It’s a belief I share. We don’t send out bad briefs on behalf of real clients, even if that means we need to rewrite large parts of it because the students aren’t up to snuff. We of course work with the students the best we can. Which means editing at least four or five drafts. But sometimes we need to take it over. So that is the balance. I hope to get better at it this year.
The biggest hurdles for students are the same for practicing lawyers. Writing and analytical skills. Students haven’t read hardly any briefs by the time we get them, so they don’t understand how to write. Just like many lawyers, students tend to use lots of “lawyerly” words and convoluted syntax. And, just like lawyers, students have difficulty when there is no binding precedent and they have to create their own arguments for why the court should rule in favor of their clients. I often tell them that in many of our cases it is not enough to throw handfuls of precedents at the court in the hope that one sticks; it takes persuasive arguments.
My relationship with my clients depends on the client. Some of my clients don’t know my backstory. To them I’m just another lawyer. But some of my clients are guys I was in prison with. They’ve been waiting patiently for me to be in a position where I can really help them. My first case with the clinic here was a case I brought to the clinic. A friend of mine is serving 20 years for felon in possession of a firearm, so we filed for a second or successive 2255 petition in the Eighth Circuit and it was granted. He is now litigating for the chance to be resentenced and immediately released. My conversations with him aren’t much different from what they were in prison. I seem to occupy this strange place where I have one foot in and one foot out, and I’m perfectly okay with that.

Q. And then there’s that mean-ass old judge who sentenced you, and who denied your § 2255 motion, all those years ago. That would be Fault Lines’ own Judge Richard G. Kopf, who has since become one of your strongest supporters. You’ve even given interviews together, where Judge Kopf said his sentencing instincts about you back in ’99 “sucked” and were totally off the mark. Have you come to terms with this? What influence has this had on your view of the system, the judiciary? Does this make it better or worse? And your legal scholarship shows you to be a strong critic of things like AEDPA, which Judge Kopf has vigorously defended. What’s up with that old judge? Will he never learn?

A. There really isn’t anything to come to terms with. I harbor no ill will against Judge Kopf. Never have. The fact that he thought I’d never amount to much wouldn’t separate him from most people that knew me in my early 20s. All of us have the capacity to change. Even prisoners. And even me.
As to AEDPA, Judge Kopf is just wrong. Totally and utterly and completely wrong. So says the now academic to the district court judge! That was a joke, by the way.

Lessons From A Dispassionate Judge: Focus On What Matters

There is often a level of nuance that flies over (or under, as the case may be) the heads of people who see something that, to the uninitiated, unduly simplistic or overly passionate, seems to be a good thing. Indeed, that’s how many reacted to the conduct of Las Vegas public defender Zohra Bakhtary, who was applauded by many for her passion and zealousness. She got no props here.

As a general rule, lawyers, particularly young lawyers and public defenders, are to be applauded for being bold enough to stand up to a judge on behalf of their client. This is particularly true when they put themselves at risk in doing so. But like the simplistic “don’t be a jerk,” be bold and interrupt the judge is only one tool in the lawyer’s tool box. Knowing when and how to use the tools of the profession is what being a lawyer requires.
The problem arises when knee-jerk reactions to displays of “passion” are applauded, as if being a passionate public defender is good enough. This is not merely a dangerously foolish notion, but one that puts the lawyer’s feelings above the client’s interests.

Sorry, all you deeply passionate folks, but feelz isn’t a substitute for good lawyering. And no, the fact that the judge reacted poorly as well doesn’t make what happened better. Sure, logical fallacies elude you, but still, what happens afterward never justifies what came before. That’s just not how logic works. More importantly, and in direct conflict with what so many young lawyers mistakenly believe, the lawyer and judge are not equals in the courtroom. The judge runs the joint and makes the calls. That’s how it works. If you don’t like that, do transactional work. Continue reading →

Rhode Island Revenge Porn Crime Gets Vetoed

The announcement from Governor Gina Raimondo was, frankly, stunning. The Rhode Island governor did what few politicians are willing to do anymore. She put the Constitution first. Even more shocking, she put the First Amendment to the Constitution first. From the Providence Journal:

In her veto message signed late Monday night, Raimondo said: “The bill is apparently intended to curb the dissemination of private sexual material over the internet, but its sweep is much broader. It could also cover works of art that depict the human body. And unlike virtually all other similar state statutes, H7537 does not include basic safeguards such as the requirement that ‘intent to harass’ be demonstrated for conduct to be criminal.”
“The breadth and lack of clarity may have a chilling effect on free speech,” she wrote. “The right course of action is to follow the example of other states, and craft a more carefully worded law that specifically addresses the problem of revenge porn, without implicating other types of constitutionally protected speech.”

This follows the Rhode Island ACLU’s challenge to the law as enacted. Continue reading →