The plea agreement was contingent upon whether a state court conviction for child pornography compelled a mandatory minimum of ten years.  When the 10th Circuit held it did, District of Colorado Senior Judge John Kane’s hands were tied. He sentenced Shawn Cheever to the ten year mandatory minimum, and explained in detail why it was the wrong sentence and defied the mandate of § 3553(a).

Section 3553(a) provides evaluative criteria to achieve balance between the order of society intended to be protected by punishment and the utilitarian view that every human being must be afforded dignity. The stated criteria often clash and not all apply in every case, but they demand individuated considerations: No one size fits all.

The object of this balancing process is not to fill in the blank of some mechanical calculation, but to impose a decent, appropriate and deserved sentence under all attendant circumstances. The imposition of mandatory minima removes that balancing from the sentencing calculus and is therefore antithetical to the adjudicative process. The result is a punishment without any expression of rational justification. The ten year mandatory minimum in this case preempts the formulation of a sentence that is sufficient, but not “greater than necessary” to achieve the salutary purposes of Section 3553(a).

And lest any cry “recidivism,” that too was addressed: Continue reading →

Commenter: Seems to me she has leprosy. Does she have leprosy?

Me: What makes you think she has leprosy?

Commenter: I don’t know. That’s why I asked you.

Don’t do this. I get it. You have no clue what you’re talking about. Some random idea pops into your head, lacking any basis in reality, but there it is. Now you want to know whether your random thought is true, so you ask a question.  You feel this need to let this question out. If you don’t let it out, you feel like you will burst. So out it comes.

Don’t do this. There is no limit to the random ideas that pop into people’s heads. Most are not good ideas. Just because you’re special does not mean your random ideas are better than anyone else’s.  Ask yourself a few questions before commenting. Continue reading →

Some people believe in legislative solutions.  Got a problem? Pass a law. That will fix it, because, you know, law. And when mean people like me make fun of their naiveté, they get very angry because they believe that if there is a law, people will obey. The irony is that these are often people who think poorly of compliance with authority, yet resort to exactly the same method of achieving their goal as they reject otherwise.

Enter the New York City Council, the mothership of progressive fixes.  A law was proposed, and lots of people liked it.

The bills, known as the Right to Know Act, require officers to identify and explain themselves when they stop people, and to make sure people know when they can refuse to be searched. These are timely, sensible ideas, echoing recommendations made by President Obama’s task force on 21st-century policing. Though the Right to Know Act has been bottled up in the Council for two years, it has broad support among Council members and community organizations, and sponsors say it would pass easily if it ever came to a vote.

What’s not to like?  Cops behaving well? Cops informing people why they’re being stopped, that they can exercise their constitutional right not to consent to a search? There is nothing bad here.

Naturally, the cops hate it. Of course, there is nothing to prevent New York Police Commissioner Bill Bratton from telling his cops to do this anyway. But he didn’t. He won’t. It’s not as if he serves at the pleasure of New York’s most progressive mayor ever. But the big issue for Bratton isn’t that the ideas incorporated in the law are so dangerous and counterproductive, but cops just don’t like being told what they have to do. Continue reading →

David Berkowitz, better known as “Son of Sam,” killed because Harvey, his neighbor Sam’s dog, commanded him to do so.  He was, of course, a homicidal psycho. For people who are not, taking your marching orders from dogs is generally frowned upon, unless you work for the government in law enforcement.

A New Mexico woman has reached a $475,000 settlement with the Customs and Border Protection agency after she had claimed she was subjected to six hours of illegal cavity searches.

Contrary to whomever decided that the word “claimed” was a good choice of verbs, there is no question that she was subjected to six hours of illegal cavity searches, and other sundry wrongs. Vaginal. Rectal. You name it.  On top of the rather piddling settlement with Customs, she settled with the hospital that was all too happy to rape her as well.

The woman settled her case against the University Medical Center of El Paso, who conducted the search on behalf of CBP, for $1.1 million in 2014.

Continue reading →

May the force be with you? Not in Austin, Texas, baby. Which is odd, since even though it’s the capital of the Republic, most Texans view Austin as the Texas version of Portlandia, some odd enclave of hippies munching down on kale chips with their barbecue. Fortunately, the Austin Police are there to remind those libs that it’s still Texas.

Austin police forced to taser man as group of kids gathers to watch

Forced? As in, someone put a gun to their heads and said, tase ’em or else?  Not quite.

On Friday, two Austin police officers on patrol in the downtown area of East 7th street near The Austin Resource Center (ARCH), saw a man sitting in a swivel office chair in the middle of a sidewalk. The man was described in police documents as a 6 foot 9 inch, 300 pound, black male by the name of James Houston.

Whatever exactly Houston was up to, which concededly emitted an unpleasant odor, it wasn’t violence.  He posed no threat of harm to the cops. He was a big guy, tall, heavy, but contrary to the post hoc rationalizations of scaredy cats, size isn’t a crime. It’s an excuse. Continue reading →

What made lawyer Andrea Burton wear a Black Lives Matter button to Judge Milich’s Youngstown courtroom? She wanted to. When it comes to an expression of political opinion, it requires no more reason than that. Which is why some found it outrageous that Judge Milich held Burton in contempt for her refusal to remove the button.

Burton argued that her First Amendment rights overrule the Supreme Case law — and Milich’s discretion — and refused the his instructions because she didn’t want to remain “neutral to injustice.”

There is a serious question as to why Judge Milich felt it necessary to flex his judicial muscles over a BLM button. It’s not as if Burton’s button was disruptive to the decorum of the courtroom. If anything, the judge’s demand that the button be removed was more disruptive at the time, and certainly more disruptive in the long haul as it becomes a source of debate and anger.

Whether this is properly described as making a mountain out of a molehill, it was a choice made by the court that Judge Milich didn’t have to make. Like Burton’s choice to wear the button, it was Judge Milich’s choice to make a big deal of it. But he did. Continue reading →

The New York Times’ newest public editor explains the anomaly:

They don’t come in swarms but they land at a steady clip, these reader letters probing why The Times refers to some women as “Ms.” and others as “Mrs.” This week, readers were circling the convention coverage, suspicious as to why Donald Trump’s wife, Melania, was labeled “Ms.” Trump while the president’s wife, Michelle Obama, was deemed a “Mrs.” One person writing in suggested that whoever made this decision must have intended to disparage the Trump marriage.

The Times disparage Trump? Pshaw.  But with Hillary Clinton a mere heartbeat away from the presidency, a position that has been subject to the title “Mr. President” ever since George Washington decided “your awesomeness” wasn’t appropriate, what to do?

It’s the women who get to choose their courtesy titles at this modern institution. According to The Times’s internal rules, women will be referred to as “Ms.” unless they’ve elected to be a “Mrs.” Michelle Obama chose Mrs. back when her husband was seeking the White House. As for Melania Trump, she has yet to express a preference (thus the default “Ms.,” although reporters have been asked to determine her preference).

Continue reading →

What the Houston district attorney’s office did to a rape victim known as “Jenny” was nothing short of atrocious.

In Houston, Keith Hendricks was on trial for the rape of “Jenny.”

Jenny, who suffers from bipolar disorder, couldn’t continue her testimony on Dec. 8, 2015.

Court transcripts show she was incoherent, broke down and ran from court saying she’d never return.

Which is understandable. Having to relive that experience would be tough on anyone, let alone someone already suffering from mental health issues. The trial was adjourned until January, but the prosecutor, Nicholas Socias, wanted to make sure that Jenny would be available to testify. He asked for a body attachment, which the judge granted. Initially, she went to the local mental hospital, where eventually her condition improved. As soon as her mental health stabilized, she went home to her family for the holidays she was locked up in the Harris County Jail, where she remained until January 14, when the trial was over.

And Jenny did not do well in the Harris County Jail. Continue reading →

This was the best they could come up with:

The officer “thought Kinsey’s life was in danger,” John Rivera, head of the Miami-Dade Police Benevolent Association, said at a news conference.

The idea is that if they throw words against the wall, others will take them seriously, or at least seriously enough to discuss them as if there was some potential they could be an accurate reflection of what happened. This is, of course, a gambit. The police union knows that its job is to cover its cops, and its efforts to test how gullible the public is have often proven shockingly effective.

This all refers to the shooting of Charles Kinsey in a ubiquitous video, with Kinsey lying in the road, hands up, trying to explain that the autistic man next to him was playing with a toy truck and not a gun. Or even a Wii. Kinsey was picture perfect in his conduct, compliant to a fault. So, Aledda shot him anyway, with a long gun from a distance, because you can’t get too close to an autistic man with a toy truck or it could be thrown at him and take his eye out. Continue reading →

Not exactly, but sort of.  As a prelude to his discussion of the responsibilities of criminal defense lawyers toward their clients who snitch, which largely involves keeping them alive, Judge Richard Kopf called out a slice of lawyer:

Before I get to my “tips” on snitches, I have two points.

First, if you are the kind of criminal defense lawyer who says he or she will never represent a snitch then you are probably an asshole unworthy of the designation lawyer, let alone criminal defense lawyer. We have plenty of Social Justice Warriors and not enough criminal defense lawyers to represent people they would otherwise despise.

Some background seems in order. While rats (my preferred epithet) have always been around, the phenomenon of racing to the U.S. Attorney’s office to be the first to snitch didn’t become a “thing” until 1989, after Mistretta, when the federal Sentencing Guidelines were held constitutional, and obviously long before the Supreme Court’s Booker decision, when they announced, “only kidding.”

As a result of the pervasive use of conspiracy to charge what were previously state drug prosecutions in federal court, in combination with the absurdly harsh guidelines sentences, criminal defense lawyers told their clients that nobody wins and they have no choice but to rat if they ever want to see sunlight again. The rush to snitch was on. Continue reading →