The opening paragraph of Judge Eugene Pigott’s opinion in People v. Lerio Guerrero seems clear as can be.

The primary issue on this appeal is whether defendant, by pleading guilty to all of the counts of an amended indictment, forfeited his right to challenge the legal sufficiency of the so-called “DNA indictment”¹ and the subsequent amendment that added only his name to that indictment. We hold that defendant, by pleading guilty, forfeited his right to challenge both the underlying “DNA indictment” and the amended indictment that named him.

So the defendant lost. And he lost because he copped a plea, and when you plead out, you give away your challenge to the DNA indictment, and its subsequent amendment. How much clearer can it be?

What’s a DNA indictment? It’s a new-fangled weapon in the war against crime, because when the prosecution doesn’t know the identity of the perpetrator, but has the perp’s DNA available, indict the placeholder until you figure out whose DNA it is, then swap out the captions and, bang, you’re good to go.  The placeholder serves to stop the running of the statute of limitations and shift the burden of delay from the prosecution to the defense. It’s not that they didn’t act within the time frame the law required, but that the defendant, by concealing his identity behind his DNA, caused the delay to ensue. Continue reading →

At my alma mater, students held a “cry-in” after the loss. Their world of absolute certainty crashed down around them, because no one ever told them that there would be loss in their lives. The past eight years was under President Obama, the nation’s first black president. And they were still sucking their thumbs when Shrub was last elected.

At Yale, students sought the concession from their Econ 115 professor to cancel his midterm exam. The claim to suffer “fear, rightly or wrongly.” may well be true, as is the pain. They just suffered the first smackdown of their values ever, and this wasn’t possible. They had been told that their values were true, were real, were absolutely right, and therefore there could be no reasonable disagreement. If true, and they believe it with all their being, then this was no more possible than pigs flying. And everybody knows pigs can’t fly.

So it had to be evil that permeated their country. Millions of racists and sexists stole control from them. It had to be. There could be no other explanation that meshed with their world view. The old aphorism, that there were two sides to every story, was a lie. There was no other side. They were right. They had always been right, and would always be right. There could be no higher calling than serving what was right, and it justified doing anything, anything, to achieve what was right.

Donna Brazile, who filled in as head of the Democratic National Committee after Debbie Wasserman Schultz got caught dirty, got caught dirty herself. But she was only contrite about being caught, because her giving debate questions away while (bizarrely) serving as a neutral commentator on CNN may have been cheating in the worst sense of the word, but her cause was just. And righteousness excuses every wrong. Continue reading →

A few years back, a White House national security cyber guy told me that the biggest stumbling block to the United States being capable of meeting the threat of cyber attack was that the damn coders were so . . . coder-ish. There were limits as to whom the government would hire, and those limits included people who committed crimes. Like smoking pot or downloading music illegally.

There were two things that almost all good coders did. Smoke pot and download music illegally. It was a problem. Sure, there were coders who didn’t, but not enough and, I was told, they weren’t the “good ones.” Hey, that’s what he told me. I’m just repeating it here.

But it appears the days of rejecting people in law enforcement, even people whose sartorial choice can be best described as “homeless Jesus” in a Megadeath t-shirt, may be over, at least for the waning hours of the Obama administration.

In a push to hire minority police officers, the Obama administration is asking the nation’s 18,000 law enforcement agencies to forgive drug use, disregard the criminal records of candidates from “underrepresented communities” and lower standards on written and physical exams. It’s part of the administration’s Advancing Diversity in Law Enforcement initiative following a string of officer-involved shootings involving African Americans. Key to the mission is the racial diversification of local law enforcement agencies so that they “better reflect the diversity of the communities they serve.”

Continue reading →

It wasn’t too long ago that the forces of feminism and social justice were pulling their hair out over the sentence given Brock Turner and the fact that allegations against America’s most-hated dad, Bill Cosby, wouldn’t result in prosecution because the statute of limitations had run. This was a travesty. This had to be changed, they exclaimed in the online petitions favored by slacktivists.

Of course, this is all petty history, at the moment, because evil old white men in flyover land elected a “lying, sexist, homophobic, xenophobic, ignorant, narcissistic, petulant con-man with small hands” as its 45th president, and when they can pull themselves out of their safe spaces, their time is spent taking to the streets in the hope that if they scream loud enough, the space-time continuum will change the outcome of the election.

Nonetheless, politicians who sought to curry favor with their constituencies, and had otherwise found themselves barren of opportunity to be simultaneously tough on crime and soft on social justice, pandered as fast as they could.

In the last two years, at least six states have extended or eliminated their statutes of limitations on sexual assaults. Activists are seeking similar changes in at least three others.

Continue reading →

In advance of the election, Rick Hasen wrote an op-ed for the New York Daily News, which means you probably weren’t among the twelve who read it.

“We need nine,” the refrain goes. But it’s the balance of power on the Supreme Court and not the number of justices that matters. The fate of many of our most cherished rights hangs in the balance of not just the presidential race, but control of the Senate.

Neither the presidency nor the Senate went the way Hasen wanted.

A conservative Supreme Court is more likely to protect broad gun rights, take a narrow view of federal power against the states, and the rights of businesses over workers and consumers.

That’s why I’ve called control of the Supreme Court the most urgent civil rights issue of our time.

Continue reading →

Donald J. Trump will be the next president of the United States of America. The constant media ridicule, which continues as the newspaper of record in its post-mortem tries to explain it in social justice terms, reveals only the failure of its own vision.

There has been a growing disconnect over the past decade between the elites and the people. The people want jobs. The elites want genderless bathrooms. The people want security. The elites want rights. The elites thought that electing a woman, any woman, president was more important than retaining the traditions they were raised on. The people have spoken. As Mike Cernovich twitted,

Power to the people.

Continue reading →

If her pitch was for the appointment of a judge based upon the experience of a 100 trials at an attorney, she would be the sort of candidate that most lawyers could strongly support. But that’s not the pitch, and the trial experience is deliberately rendered secondary to a pitch that reflects what should preclude a person from ever sitting in judgment of another person.

The pitch comes from Minnesota transgender lawyer Ellie Krug.

I recently presented to a group of judicial professionals in a Midwestern state on “Gray Area Thinking,”™ a toolset on how to successfully interact with humans who are “different” from “us.” The nearly 160 older, predominately white male, audience members constituted the front line criminal justice professionals for that state. Their lack of diversity underscores a frequent and fundamental question: how do we collectively get to a more diverse and inclusive judiciary?

As a generic concept, it’s hard to disagree with the bench should be more diverse and inclusive. But that’s where Krug goes down the rabbit hole. Continue reading →

Election day, to the extent it hasn’t been election month since the notion of election day seems almost archaic, is upon us. Don’t ask who I’m voting for. I won’t tell and there’s no reason in the world why you should care. Half the guys at Volokh Conspiracy have given their votes, some even explaining their choice of the least despicable candidate. Like them, I too vote for the second worst candidate. Who that is, to me, shouldn’t matter to you.

What does matter is that watching the campaign from the seat of disgust enables me to see the choices uncolored by belief. What I see are two sides that look remarkably similar in many ways, combined with their denial that they’re anything like the other side. I see hypocrisy and lies, ignorance and self-dealing, all wrapped in a bow of utter bullshit. What I see is the inability of people who pretend to be smart enough to pick a president incapable of understanding why anyone would pick the other person.

That is worse than the choice itself, that people cannot fathom how anyone can see virtue, or not see outrage, in any choice but their own. More than anything else, this characterizes what America has become. And whether we can be bigger than this, overcome this, is the question to be presented tomorrow.

The Clinton supporters call Trump supporters haters. Indeed, the New York Times, ever blind to any thought but their own self-righteousness, leads off its conciliatory editorial with this gem: Continue reading →

Jeff Gamso is a man of great restraint. That’s what prevented him from throwing the book into the fire after reading the first line.

I knew Alfred Dewayne Brown was stone-cold innocent the moment I met him.

Dramatic. Moving. Deeply passionate. Utterly idiotic. It’s the equivalent of the moron who claims, “I knew he was guilty the moment I met him,” as if some gut reaction proves anything. It doesn’t, not that such vapid reactions aren’t embraced by the terminally insipid.

Like Jeff, I get a stream of offers from publishers to review books about the wrongfully convicted. Unlike Jeff, I delete them. I can’t bear to read another self-aggrandizing book by a lawyer who seeks validation. I can’t bear to read another book about the failure of the system, the ordinary malevolence of prosecutors and judges who allowed, if not caused, it to happen. I thank Jeffrey for doing it for me, for sparing me the pain. Continue reading →

He’s a character in a beloved series, but that doesn’t mean Spock’s quote has nothing worthwhile to offer:

The needs of the many outweigh the needs of the few.

If you’re a fan of Herzberg’s motivator-hygiene theory, you’ll more readily see where this is heading. There is a difference between the deprivation of rights to which everyone is entitled, under the constitutional guarantees of due process and equal protection, and the demand for special treatment, perhaps best reflected in Orwell’s Animal Farm, that “all animals are equal, but some animals are more equal than others.”

A bastardization of Herzberg’s theory is that there are deprivations that take a person below the standard to which everyone is entitled. An example (and just an example, nothing more) would be a law that denied a black person the right to vote based on race, whether directly or through proxies. That would be an unconstitutional deprivation. But once that deprivation is removed, it becomes a neutral factor. The black person gets to vote like everybody else, but he’s not assured his candidate will win. He’s just one of the many people who vote. Continue reading →