Not only do we owe the late Justice Antonin Scalia a debt of gratitude for revitalizing the Confrontation Clause, but an appreciation of why it matters. We had become complacent, taking for granted that if a lab report said “cocaine,” then coke it was. Except, as it turned out, maybe it wasn’t. The point was that our Constitution gave us the right to cross-examine witnesses against the defendant, and it meant something.

The Mother Country didn’t have the benefit of Nino, and instead felt the sad tears of trauma.

Rape victims to be spared ordeal of cross-examination in court

Headlines, of course, can often be misleading.  Continue reading →

In 2008, I wrote a post about needing new challenges.

At about age 50, something strange happens.  No matter what our goals were when young, no matter how exciting life appeared when everything was still before us, we reach a point where we grow weary.  We tire out.  The thrill is gone.

Everyone needs a challenge, a goal, to push them forward.  We want to scale higher mountains, to overcome new challenges.  But we find that the things that excited us long ago have become pedestrian.  It becomes a grind rather than a thrill.

Almost ten years have gone by since then, yet here I am. It’s time to do what I should have done nearly a decade ago. I will be looking for a new mountain to climb. I don’t have any particular mountain in mind, and I’m open to all possibilities, but I need a new mountain.

If anybody thinks they have a need for an old-time lawyer, whose skillset is grounded in hard work and getting things done, let me know. Maybe you’ve got that new mountain. This is the time for new ideas and challenges, wherever they appear. But it’s time.

The obvious initial focus is on the almost mind-blowing scope of the warrant.

A MINNESOTA BANK received a call in January from who they thought was Douglas, their customer, asking to wire transfer $28,500 from a line of credit to another bank. To verify the transaction, the bank relied on a faxed copy of his passport. But it wasn’t him, the passport was fake, and the transfer request was fraudulent.

The Edina Police Department figured out that while searching Google Images for the victim’s name, they found the photo used on the fake passport, and investigators couldn’t find it on Yahoo or Bing. So, they theorized the suspect must have searched Google for the victim’s name while making the fake passport.

Oh no. A googler in Edina, Minnesota. population 47, 941. What are the chances?

Edina Police Detective David Lindman detailed this theory in an application for a search warrant filed in early February, asking the Court to authorize a search warrant for names, email addresses, account information, and IP addresses of anyone who searched variations of the victim’s name over a five-week period of time.

Continue reading →

One of the most dubious legal doctrines in the scheme of addressing the harm done by law enforcement officers to others is qualified immunity. It’s entirely judge-made law, appearing nowhere in the statute, making it one of those inexplicable concepts to explain to non-lawyers when we discuss how the law works.

Textualism? Originalism? The canons of statutory interpretation? It all sounds like total crap when one considers that qualified immunity, a monumental impediment to the clear reach of 42 U.S.C. §1983, creating a cause of action for violation of constitutional rights, came out of nowhere. The putative rule is that a police officer enjoys qualified immunity for his actions unless they violate a “clearly established right.” These three words would seem pretty easy to interpret, and yet they’re a nightmare.

Rather than make it clearer, the Supreme Court gave courts a near-total pass on holding that a fact pattern failed to violate a clearly established right in White v. Pauly, Essentially, any variance from a fact pattern held to violate a clearly established right was good enough to justify qualified immunity, no matter how egregious the violation or harm.

Then came the killing of Andrew Scott. Continue reading →

Over the years, much has appeared here that was slightly less than flattering of the Carrie Nation of revenge porn, Mary Anne Franks. It was never about sloughing off the problem, but her flagrant dishonesty, intellectual and factual, in pursuit of her cause. When questioned as to the First Amendment implications of her advocacy, she lied and denied, calling her challengers sexists, misogynists, racists and perverts.

Franks, despite not being a lawyer, is a law professor, and she used that credential to delude as many people as she could, at a time when others in the Academy were deathly afraid of speaking ill of a woman academic, lest the social justice warriors burn down their careers. It’s not that there weren’t substantial swathes of scholars who cringed at her lies, but the times were changing, and academic integrity was a cheap commodity compared to the advocacy of social justice causes.

Lie for the right side of social justice and all was forgiven, no shame attached. The search for truth was replaced with the search for justice, as long as it was the approved flavor of justice. Truth is the first casualty of war, and this was war.

And then came Trump. Continue reading →

Slate’s Leon Neyfakh asked a really good question, following the bizarre dance of the feelz around the firing of SDNY United States Attorney Preet Bharara. Two very strong, very sincere lines of thought were developing:

1. United States Attorneys serve at the pleasure of the president
2. United States Attorneys are independent, apolitical prosecutors

How does that work, Leon asked? There was little doubt that a new incoming president had the unfettered authority to replace, en masse, the appointed United States Attorneys, even if this president did so with this typically inappropriateness. Certainly, others had fired their predecessor’s appointees, so that part of it raised no serious questions.

[T]he underlying idea behind the move—that a president and his attorney general should bring in their own federal prosecutors—is widely accepted in Washington as standard operating procedure.

That doesn’t mean it makes sense. As every U.S. attorney will tell you, the job of enforcing the law is supposed to be apolitical. In theory at least, the key decisions a federal prosecutor makes—namely, who to charge and with what—must not be informed by ideology or partisanship. Why, then, are we supposed to shrug when the president dismisses an entire group of prosecutors just because they were appointed by the opposing party?

Continue reading →

In an oddly Gertruded op-ed. Linda Greenhouse disclaims any position against the confirmation of Circuit Judge Neil Gorsuch for the Supreme Court, possibly in response to Judge Richard Kopf’s castigation of Greenhouse’s turning everything into a diatribe against Donald Trump. This time, Greenhouse goes explicit in her proclamation of her own fair-mindedness.

Some readers have assumed that my references to Judge Gorsuch in recent columns have been meant to convey opposition to his confirmation. That’s not true. I’m not opposed to his confirmation, at least based on what I know now. Lengthy reports from progressive groups endeavoring to show that he is “unqualified” only squander liberals’ credibility, which will be sorely needed for battles ahead in the post-factual era in which we find ourselves. That the Supreme Court vacancy is not rightfully President Trump’s to fill, given the Republicans’ blockade of President Barack Obama’s nomination of the even better-qualified Judge Merrick B. Garland, is a separate question.

On its face, this seems eminently reasonable, if a paean to Democrats. Dig a little deeper, however, and one can see that it’s just a wee bit disingenuous, since Judge Gorsuch isn’t exactly an unknown quantity (” at least based on what I know now”), having sat on the Tenth Circuit for more than a decade, after being unanimously confirmed for that seat by the Senate.

On the other hand, Greenhouse offers some sound, if grossly belated, advice: Continue reading →

A government of laws, and not of men.

–- John Adams, Novanglus Essays, No. 7

Not the most emotional of sentiments, but one that should matter more to criminal defense lawyers than others, as we represent those most hated by society. If it was enough that our clients were despised, accused of horrible things, convicted with the certainty of the righteous who care nothing of evidence and constitutional rights, they would string them up on the nearest tree. But we rely on a government of laws, even though everyone hates them, to give them the opportunity to test their guilt.

District of Hawaii Judge Derrick Watson issued a nationwide restraining order on the second iteration of Trump’s Executive Order. As Cristian Farias explains: Continue reading →

At the totally not-fake-news site, Slate, University of Chicago senior Osita Nwanevu argues that it’s not at all outrageous to stamp out bigoted speech under the catchy headline, The Kids Are Right. His post is directed at the campus attack on Charles Murray, a cause he deems unquestionably righteous.

Charles Murray, an author and political scientist, was scheduled to give a lecture at Middlebury College earlier this month. Murray is best known for co-authoring The Bell Curve, a book published in 1994 in which he argued that blacks are less intelligent than white people. On March 2, a mix of students and “outside agitators” shut down Murray’s talk and forced him off campus. A professor was injured and hospitalized, and Murray’s car was mobbed.

Putting aside that Nwanevu apparently never read The Bell Curve, since that wasn’t what Murray “argued” at all, his embrace of the pop culture notion that it’s good enough to believe things for them to become “true facts” rather than “fake facts” suffices to hit his stride. Continue reading →