There’s been plenty happening at Fault Lines, which I assume that everyone should be totally aware of since you read every post there daily, right? Right?!? You should. And you should subscribe, so you at least get to see every post and realize how much you’re missing. Do it. I don’t ask for much, but do this for me.

So no, you won’t do it just because I asked you to? You are so unappreciative and demanding. If that’s not a good enough reason, how about this: Fault Lines is now the only place on the interwebs, ever in the history of man, where you can read and comment on posts by two (count ’em, two) federal judges. Oh, sure, you know that Senior Nebraska District Judge Richard Kopf writes at Fault Lines. Ho hum, you jaded little suckers say. As if you got to engage with federal judges off the record all the time. But now, double your pleasure, double your fun with…

Welcome, Colorado Senior United States District Judge John Kane.

Judge Kane, who was crossed last week, has graciously offered his thoughts in his inaugural post.  Where else do you get to read the ruminations of federal judges, comment on them, engage with them, without being held in contempt? That’s right, nowhere else. No. Where. Else. But Fault Lines. Continue reading →

Before anyone would have believed that there could be a court in the United States of America that was closed to everyone but prosecutors, there was a need to keep certain things from prying eyes. There was a file kept in the clerk’s office at the old federal courthouse in the Southern District of New York, that held search warrant applications that had yet to produce arrests and indictments. You see, every paper signed by a judge has to be kept somewhere.

Not too many people knew about this file. It had a name and number, and could be requested from the clerks. And in it were secrets. Hard to find secrets, but secrets, there, in a file, for all the world to see if they knew the secret name and number. Then came FISC, the Foreign Intelligence Surveillance Court.  Even though it violated every precept of what a court was supposed to be since the Spanish Inquisition, it somehow didn’t bother us too much.

In 1978, Congress created the first secret court in our history — the Foreign Intelligence Surveillance Act (FISA) court. Staffed by Article III judges borrowed from federal district courts, this specialized tribunal issues surveillance warrants for foreign intelligence purposes. Understandably, given its mission, FISA court proceedings are ex parte and mostly secret, although the Snowden revelations in 2013 forced a partial lifting of the veil.

That’s not entirely correct, as criminal defense lawyers became aware of FISC long before, and raised holy hell about it, to which an appreciative nation went “meh.”  Of course, there was no internet back then, and the media wasn’t interested because everyone understood that the Constitution wasn’t “a suicide pact,” and we had to fight the commies lest we be forced to drink bad vodka. Our American fetish with law happening in a room where evil eyes could watch was obviously idiotic, and so a nation weaned on grossly sexist spy movies understood the need for secrecy. Continue reading →

The class is huge, and every day, grows larger.  It’s made up of every person who is arrested and charged with a misdemeanor in The Bronx.  The complaint is that once someone goes into the system, it takes forever to come out.

Robin Steinberg, the Bronx Defenders’ executive director, said delays for people charged with misdemeanors — the lawsuit’s focus — had only gotten worse in recent years. Last year, there were more than 45,000 misdemeanor arraignments in the Bronx, according to court statistics cited in the suit. Ms. Steinberg said the misdemeanor cases accounted for the vast majority of the people entering the system.

So there are too many criminals in the Bronx?  Maybe so. Maybe not. It doesn’t matter, because even people who committed heinous misdemeanors, like smoking weed in public, are entitled to a speedy trial and due process.  The federal complaint is a “talker,” telling the stories of some defendants, like one of the named plaintiffs,  Michael Torres, who waited 877 days, through 14 court appearances, up to six hour waits each time he went to court, the loss of his job, only to have his case dismissed when the cop testified that he had no recollection of Torres.

Defendants charged with misdemeanors in the Bronx regularly see their cases languish far past the 60- and 90-day speedy trial limits set down in state law for various low-level offenses, because delays caused by the courts’ crowded calendar rather than the district attorney are not counted toward the limit. Defendants who wish to go to trial must often wait years and sometimes never get their day in court, a 2013 study showed.

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While some mouth the words of ending the drug war as an abysmal failure that’s destroyed hundreds of thousands of lives while accomplishing nothing, the mouth of an old-time drug warrior can be heard screaming and spitting. Welcome back, Bill Bennett.

The Sentencing Reform and Corrections Act now before Congress is based on a lie — that drug dealing is not a violent crime. Americans have been told this lie for years even as we witness the violence and death caused by drug dealers in our communities. Now, this lie is propelling legislation through Congress that will destroy more lives.

It’s not drugs. It’s violence. VIOLENCE! And anyone who says otherwise is a liar. A LIAR!!!

How can the drug trade be victimless when most Americans know a victim? How can it be non-violent when we witness the carnage every night on the local news?

The countless Americans victimized by drugs know the truth, as does anyone who has looked at the facts about America’s prison population.

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Attorney General Loretta Lynch has teed up a question that needs to be answered: is discrimination against transgender folks sex discrimination?  The Department of Justice has commenced suit against the State of North Carolina based upon its knee-jerk law in response to Charlotte’s transgender bathroom law.  Despite various issues with the NC law, the suit goes to some core questions:

Title VII applies to workplace discrimination.  It prohibits discrimination on the basis of sex. It makes no mention of discrimination on the basis of gender identity. Continue reading →

What to do with an unethical prosecutor in Utah?  Such a hard, difficult, vexing question.  Not just because the courts are so very reluctant to hold a prosecutor accountable. They are, of course, because they would hate to make prosecutors feel the slightest bit skittish in protecting society from rapists and terrorists, but for a more legalish reason:  It’s never happened before.

It is a question the Utah Supreme Court is pondering in the case of a former Davis County prosecutor. Whatever the ruling, it will break new ground in attorney-discipline issues — it being the first time the justices have weighed in on a case in which a prosecutor is accused of violating his or her special duties.

There isn’t any question that Larsen is a total unethical scumbag. That much is firmly established.

Larsen has been appealing a seven-month suspension of his law license. He was fired from his job as a Davis County prosecutor after alleged misconduct during a 2010 aggravated robbery trial in which he showed the robbery victims a photo of the defendant, but did not show them any other photos as part of a proper photo lineup. This was not disclosed to the defendant’s attorney, who asked for — and was granted — a mistrial when one victim testified that Larsen had shown her the single photo.

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Despite a certain irony in Dan Bilzerian suing TMZ for publishing a story about a woman who claimed to have gotten chlamydia from him, it happened.  The story was first published at The Dirty, which makes infinite sense, and then picked up by TMZ.  Bilzerian sued the Dirty, and then TMZ. Why? Because he can.

Dan Bilzerian is an Internet celebrity, known for his extravagant, jet-setting and partying lifestyle. He has a particularly strong social media presence on the website <instagram.com> (“Instagram”), boasting over 12 million followers. He regularly shares photographs of himself
posing with scantily-clad women, large sums of cash, expensive cars, planes, firearms, and extravagant homes. He has been dubbed the “King of Instagram” and “Instagram’s Playboy King.”

You can’t tell instagram followers whom to love, right? But then, when a guy has a few bucks, and is willing to part with them, suing media who write about your alleged loathsome diseases is an excellent way to make sure no one writes about stuff that drips from one’s penis. And that’s precisely what Anti-SLAPP legislation exists to prevent.

Strategic Lawsuits Against Public Participation (“SLAPP” suits) are an affront to the freedoms of expression and of the press. Plaintiffs file SLAPP suits against media outlets not because of any objective merit, but to punish defendants for exercising their free speech rights. Such suits have a chilling effect on others who might also be inclined to do so.

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Like any real Giants fan, I hate the Redskins. Always have. Not the sort of hate that makes me want to take up arms and do them harm, but the sort of hate that makes me proclaim that they don’t deserve to be on the same playing field as my beloved New York Giants. Heck, they shouldn’t even be in the NFC East. They should be an AFC team, because I hate them that much. Yes, I’m ridiculous when it comes to my Giants.

But what about the name?  What about the word, Redskins?  My pal, Greg Prickett, who is part Menominee Indian,  responded to a post at Fault Lines noting the Supreme Court’s grant of cert in the Slants case, in which the Redskins weaseled their way onto the certiorari coattails.  Greg wrote:

This is not a free speech issue. Snyder can call his team anything he wants, but the government does not have to offer trademark protection to such an obviously racist team name.

He’s not exactly wrong, but he’s not right either. Yes, Redskins is an “obviously racist team.” And name for a team, too. So while Snyder, the owner of that horrible team, may be entitled under the First Amendment to use it, is he also entitled to the protection of his mark by the government? Continue reading →

It’s unlikely that you haven’t noticed this before, but there is a war against words going on. It’s not a new war. Words have always been subject to scrutiny, arising when they’re acceptable, then declining when deemed pejorative.

Same word. Different feeling. Usually accompanied by a tedious explanation for why the word that was once the savior of hard feelings is now the cause of them. This isn’t true of all epithets, some of which arose as pejorative terms, and were always intended as insults, but those aren’t the words under discussion.

A perfect example is offered in Dan Barry’s op-ed about the “intellectually disabled.”

For many years, the preferred term was, simply, idiot. When Massachusetts established a commission on idiocy in the mid-1840s, it appointed Dr. Samuel G. Howe, an abolitionist and early disability rights advocate, as its chairman. The commission argued for the establishment of schools to help this segment of society, but made clear that it regarded idiocy “as an outward sign of an inward malady.” Continue reading →

In a demonstration of bizarrely inexplicable irresponsibility, the New York Times Sunday Magazine includes a “how to” guide to making citizens’ arrests.

“There are very strict rules of engagement,” says Jeromy McHenry, who owns a private security firm in California and has made over 1,000 citizen’s arrests. Statutes governing when and how laypeople can arrest their compatriots vary. Know your state’s laws.

Know your state’s laws? Because people just happen to walk around with a deep, encyclopaedic knowledge of the elements of crimes in their state?  And what about important federal law, like John Bad Elk? Are you mad?

If you do get involved, act with authority. “Speak in a stern, matter-of-fact voice,” McHenry says. Announce loudly: “You’re under citizen’s arrest.”

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