Andrew Fleischman is such a killjoy.  Deeply passionate people are kvelling over the Supreme Court’s 7-1 opinion in Foster v. Chatman, where the Court held that Georgia prosecutors exercised peremptory strikes to remove all blacks from the jury.

Among other tactics, the prosecutors had highlighted the name of every prospective juror who was black and marked it with a capital B, with an explanation at the top of the juror rolls indicating that the letter signaled the juror’s race.

Roberts took pains to parse all this evidence and noted that it did not comport withBatson v. Kentucky, a 1986 case that established the test defendants must use when challenging prosecutors’ racial motivations during jury selection.

“Despite questions about the background of particular notes, we cannot accept the State’s invitation to blind ourselves to their existence,” Roberts wrote, adding that circumstantial evidence about the trial in question must be subject to a “sensitive inquiry.”

Fleischman hates racism. So why is this killjoy not doing his happy dance? Because the win in Foster breaks no ground, changes no rule, offers no guidance.  The happy people like the outcome. The killjoys, like Fleischman, suck the joy (hence the name) out of the win. The reason is that it tells prosecutors to stop putting a “capital B” next to the names of the jurors they plan to strike, so as not to make a hard record of their racism, and then they’re home free. Continue reading →

The first step in the dance is to find someone with the veneer of respectability willing to take the lead. They found him, Bill Koch, who sat on the Tennessee Supreme Court before he took the job of dean at Nashville Law School.  But it wasn’t enough that his judicial and academic glow would blind the critics. He also had to be able to dance, because that was the purpose of the Task Force he would lead.

“The Legislature is not going to pay money for the same old thing,” Koch said. “We haven’t, in the last 30 years, looked at (the process of providing legal services for the poor) holistically.”

The Task Force, from a state where shamelessness toward the 6th Amendment has become an official disgrace, was given a mandate: How to tweak around the edges of Gideon, the duty to provide effective assistance of counsel to the indigent, to create the appearance that they’re doing something.

But there was one proviso: Spend no money. Continue reading →

United States Judge Andrew Hanen has rocked the legal world with an order of shocking, if legally dubious, magnitude.

Therefore, this Court, in an effort to ensure that all Justice Department attorneys who appear in the courts of the Plaintiff States that have been harmed by this misconduct are aware of and comply with their ethical duties, hereby orders that any attorney employed at the Justice Department in Washington, D.C. who appears, or seeks to appear, in a court (state or federal) in any of the 26 Plaintiff States annually attend a legal ethics course. It shall be taught by at least one recognized ethics expert who is unaffiliated with the Justice Department. At a minimum, this course (or courses) shall total at least three hours of ethics training per year. The subject matter shall include a discussion of the ethical codes of conduct (which will include candor to the court and truthfulness to third parties) applicable in that jurisdiction.

Whether the court has the authority to issue an order requiring lawyers working in the Department of Justice in 26 states to take an ethics course is unclear. How many lawyers this involves is unclear, but they weren’t the lawyers who appeared before Judge Hanen and whose conduct gave rise to the order. Continue reading →

The New York Times bemoans the “broken bargain” with college graduates, following up on President Obama’s commencement address to students at Rutgers, who are already starting out at the deficit of being in New Jersey:

In his recent commencement address at Rutgers University, President Obama focused on the noneconomic reasons for going to college. The skills gained in college, he said, are tools to help “make the right choices — away from fear and division and paralysis, and toward cooperation and innovation and hope.”

No, no mention of his imploring the kids not to be such fragile teacups. That’s not the broken promise. This is:

It was an important reminder, well suited to the times and the occasion. But it also came across as if the economic benefits of college were a given. In fact, the familiar assumption — graduate from college and prosperity will follow — has been disproved in this century. College-educated workers have not seen meaningful pay raises, and public policy has failed to address the stagnation.

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In a bit of typical twitter silliness, a truncated discussion broke out following the Stanford Law School CodeX lie-fest. Too mean? Okay, how about circle jerk? Still too mean? Jeez, tough crowd. Let’s try, well-intended but clueless gathering. That’s the best I’m going to do, so suck it up.

One piece of the discussion addressed the self-serving contention that legal tech was the savior of the poor and downtrodden who couldn’t afford legal representation, access to justice, or A2J. I called bullshit.

They wrap themselves up in their white knight armor under the A2J banner, all the while concerned only with whether they can sell their gadget and make a fortune. Don’t be shocked at the hypocrisy and ignorance. These are desperate people, constantly staring failure in the face, in critical need of facile excuses that shift the blame for their ugly, unwanted babies to anyone but them.

How absurd are these self-proclaimed heroes of the poor? When I twitted that if they were serious, they would want serious lawyers to speak at their insular conferences about what law is, lawyers do, clients need, so they would stop creating shiny, worthless gimmicks that fail miserably. The response from the “dumber than dirt” side (apologies to dirt) was: Continue reading →

Supreme Court Justice Sonia Sotomayor opened a can of worms at the American Law Institute when she announced that she was in favor of “forced labor,” a very curious choice of words.

U.S. Supreme Court Justice Sonia Sotomayor said Monday that all lawyers should be required to provide pro bono legal services.

“I believe in forced labor” when it comes to improving access to justice for the poor, she said during an appearance at the American Law Institute’s annual meeting in Washington. “If I had my way, I would make pro bono service a requirement.”

Sotomayor made the comment in response to a question from institute director Richard Revesz about the dearth of legal services for low-income individuals.

The justice said she was aware of programs—like New York state’s—that make pro bono work a requirement for admission to the bar. She also acknowledged that some critics say lawyers who are compelled to work for free “may not give their best effort” to the task.

But professional and ethical duties require it, Sotomayor insisted. “It has to become part of their being,” she said.

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In the grand scheme of piss-poor analogies (edit: and the beloved metaphor), leveling the playing field is a winner.  First, it’s not a game. Second, the field is so grossly unlevel that no matter what the defense does, it can’t touch the advantage the prosecution enjoys. Forget all the platitudes that people use about the legal system; it’s meant to be unfair, to favor the prosecution. Anyone who doesn’t realize this doesn’t “get” the system.

But there was a private investigator who found a crack in the system. The crack was an NYPD sergeant, Ronald Buell, who wanted to earn some extra money. Cops like to earn extra money, and this was a particularly easy way to do so, and far less nefarious than other ways, like copping spare dope from dealers or pocketing the piles of cash found in stash houses. Buell sold access to his police computer.

To many defense lawyers, Joseph P. Dwyer, a retired New York police officer who became a private eye, was guided by justice — a highly sought investigator who uncovered key information to help their clients.

But that came at a price: Mr. Dwyer had been paying a police sergeant for information from a restricted law enforcement database, prosecutors charged. And in a sentencing memo this week, the government said Mr. Dwyer’s motivation had been “a desire to enrich himself,” citing his billings of about $500,000 from 2011 to 2014 from public funds used for indigent defense.

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One of my snappy retorts to commenters here when they lose connection to reality is that Reddit called and wants them back. This, of course, is a swipe at Reddit, a website built of insular communities that tend to have a specific issue focus.

It was once the paradigm of the internet, the wild west, self-policing its content and members. Cross a line, such as dox (reveal the identity of) another commenter and be banned. Moderators were chosen from its more involved and respected members. While some of this has changed, as Reddit became touchy-feely over purported misogyny and subjects that gave some people the willies (often with good cause, but that’s just my sensibilities), it still provides a forum for like-minded folks to discuss matters of interest.

This is good. And terrible. And helpful in a damning sort of way.

At a subreddit called “Bad Cop, No Donut,” a mod who went by the handle FritzMuffKnuckle started having some doubts. He reached out to me. He had an issue with a poster there, a guy who said he was a lawyer, who appeared to be knowledgeable about the law, and who was schooling others about the “meaning” of stories posted. He asked me whether this commenter was for real, knew what he was talking about.   Continue reading →

Is there a “right to privacy”?  The answer, apparently, is whether you want there to be one for whatever outcome you’re trying to achieve.  Cristian Farias makes the point in noting how the Alliance Defending Freedom, an evangelical legal advocacy group, has discovered the right and seized upon it in opposition to the government’s transgender overreach.

As a result of the government’s overreach, students “will suffer the loss of their constitutional right to privacy, because they will be compelled by the government to use restrooms and locker rooms with members of the opposite sex,” wrote lawyers for the faith-based Alliance Defending Freedom, a legal advocacy group representing the plaintiffs.

The “right to privacy” is a peculiar claim for Alliance Defending Freedom, which over the years has supported “religious freedom” litigation before the Supreme Court and lower courts in a number of high-profile disputes. A recent Mother Jones report suggested the group may have played a role in the wave of similar bathroom bills appearing in a number of states.

The reason ADF’s appeal to “bodily privacy rights” or the “fundamental right to privacy” may seem out of place — especially in light of recent constitutional history — is the lack of an explanation for where the right comes from. The lawyers provide no legal citations or support for its source.

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In his concurrence in United States v. Dessart, Seventh Circuit Judge Richard Posner takes issue with the obsequiousness of review of a warrant under Franks v. Delaware, and that’s terrific, because Franks is a ridiculous decision decided by the Supreme Court of Fantasy Land where a judge will review a warrant, whether issued by him or one of his pals at the judge cafeteria, and, with a completely open mind, opine that he or the other judge was a blithering idiot for signing off on the warrant.

Except, Posner can’t seem to focus on the ridiculousness of the Franks decision, but lapses into a rant against the words, the rhetoric, used by courts in their opinions.

I do not criticize the majority for re‐ citing them, because they are common, orthodox, even canonical. But they are also inessential and in some respects erroneous, and on both grounds ripe for reexamination. First is the proposition that when a judge issues a warrant, whether to search or to arrest, the appellate court “must afford ‘great deference’ to the issuing judge’s conclusion” that there was probable cause. United States v. McIntire, 516 F.3d 576, 578 (7th Cir. 2008). This proposition derives from Illinois v. Gates, 462 U.S. 213, 236 (1983), where we are told that the Supreme Court has “repeatedly said that after‐ the‐fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’” Why great deference? Because, we’re told in Ornelas v. United States, 517 U.S. 690, 698–99 (1996), “the Fourth Amendment demonstrates a ‘strong preference for searches conducted pursuant to a warrant,’ Illinois v. Gates, supra, 462 U.S. at 236, and the police are more likely to use the warrant process if the scrutiny applied to a magistrate’s probable‐cause determination to issue a warrant is less than that for warrantless searches. Were we to eliminate this distinction, we would eliminate the incentive.” Continue reading →