Spying some twits between the Texas Tornado, Mark Bennett, and former prosecutor-cum-defense lawyer (and president of the Harris County Criminal Lawyers Association), and now chief of sex crimes at the Harris County District Attorney, JoAnne Musick, one sentence stood out:

Criminal bar is what, 30 years ahead of civil?

This came in response to a twit by the ABA Journal about women chipping away at “male litigation domination,” an obsession amongst the social justice warriors at the ABA. The point was that in criminal law, we’ve had brilliant women lawyers holding presidencies, representing clients, running prosecutorial offices and trying cases for decades.

It’s always been about merit. No one cared what was between the legs. The only thing that mattered was whether you had the chops to do the job. Try telling a jury a woman shouldn’t win because she’s a woman. Try telling a defendant that his not guilty verdict means less because his lawyer was a woman. And when we had a beer afterward, no one gave a damn what your gender (or color, or any other characteristic) was. You were either a good lawyer or not. That’s all that mattered. Continue reading →

At Fault Lines, Greg Prickett wrote that even the cops at PoliceOne weren’t buying.

When a police officer shoots someone, like Officer Phillip Hancock of the Opelika, Alabama Police Department shot Airman Michael Davidson of Texas in 2014, you would expect that the PoliceOne group would be firmly in Hancock’s corner. Surprisingly, they are not, even though both the U.S. District judge and the U.S. Eleventh Circuit Court of Appeals found in favor of Hancock. There is something wrong with our legal system when the everyday street police officers say that a shooting was bad, yet the courts absolve the officer of any liability.

A bit of insight one gains through the eyes of a cop is that Phillip Hancock, the shooter, appeared to have his gun in “low ready” position. In other words, before Davidson, on active duty in the Air Force, did anything, Hancock was so deathly afraid that he was ready to kill.

For what’s terribly wrong with putting a gun in the hands of this coward Hancock, read Greg’s post. For why the 11th Circuit backed the coward Hancock, look no further than the reasonably scared cop rule. Continue reading →

What were the chances that the nice young man driving the Uber car would be a lawyer? Remarkably good, actually, given that not every new lawyer can get a job as assistant manager of Dairy Queen. After all, they have to earn money to pay off student loans somehow, right?

And that minor detail, that the driver was also a lawyer, explains two things. First, why Jesse Bright wasn’t so easily put off filming the encounter after a cop falsely told him it was against the law. Second, how others can see the manipulative techniques commonly used by cops to “dissuade” people from the exercise of rights under threat of arrest, if not a beating, for not doing what they’re told.

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There were presidents past whose pleasures, if more explicitly known, would make some of us cringe. JFK was one, though images of Marilyn Monroe might not be the worst thing about a president. No one would ever want to envision unsavory images of Pat Nixon. Donald Trump will not find a seat at the round table of Camelot, and no sane person cares to consider his pleasures any more than absolutely necessary.

And yet, serving at the pleasure of the president remains a consideration that any observer of politics must consider. But is it reasonable to ask, “what is this crap?”

President Bush said on March 14, 2007, “U.S. attorneys and others serve at the pleasure of the President. Past administrations have removed U.S. attorneys. It is their right to do so.”

Karl Rove said on March 8, 2007, “Look, by law and by Constitution, these attorneys serve at the pleasure of the president and traditionally are given a four year term.”

Despite this acclimation of unfettered power, there must be some reason for a decision. Of course, “at the pleasure” does not require a reason to be justified. If the basis for a change in Department of Justice personnel is simply on a Presidential whim, then that is as scary, if not more so, than partisan politics.

Note the dates.* This didn’t arise with Preet Bharara’s unanticipated emergence as a progressive darling for refusing to resign upon request of the person at whose pleasure he serves. Continue reading →

The romantic saying is that the eyes are the windows to the soul. This may be endearing to those searching for a soulmate, though the divorce rate suggests a coin toss would do just as well, but is it good enough for a judge to decide upon a term of years? Empirical evidence suggests not.

A famous experimental paradigm called “mind in the eyes” purports to demonstrate this ability. You are shown a photograph of a pair of eyes, accompanied by a short list of words that describe a mental state or attitude, such as irritated, sarcastic, worried and friendly. Then you are asked to pick the word that best matches the emotions the eyes express. My lab has confirmed that test subjects perform marvelously at this task, selecting the expected word more than 70 percent of the time on average, based on a study we conducted using over 100 test subjects.

Northeastern psych prof Lisa Feldman Barrett questioned this result.

My lab, however, has also discovered a hitch in this paradigm: If you remove the list of words and ask test subjects to “read” the eyes alone, their performance plummets to about 7 percent on average. The word list, it seems, acts as a cheat sheet that helps test subjects unconsciously narrow down the possibilities. People turn out to be quite bad at inferring emotions without context. This includes judges and juries.

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On the twitters, New York Times reporter Charlie Savage offered a curiously twisted version of his own story.

BREAKING: Trump demands resignation all 46 Obama holdover US attorneys, including Bharara of SDNY who was to stay on https://t.co/XwIHq9BaZ2

— Charlie Savage (@charlie_savage) March 10, 2017

As reported, Acting Attorney General either “asked” or “instructed” the 46 remaining Obama administration United States Attorneys to tender their resignations. Continue reading →

Not that anyone ever considered crusty old Michael Hayden a credible source of pop culture, but he’s dropped some shade and a poop emoji on a generation in condemnation of leaks of national secrets.

Former CIA Director Michael Hayden told the BBC this week that he blames millennials for the government’s secrets being leaked to the public.

“In order to do this kind of stuff, we have to recruit from a certain demographic,” he said, referring to government surveillance. “And I don’t mean to judge them at all, but this group of millennials and related groups simply have different understandings of the words loyalty, secrecy, and transparency than certainly my generation did.”

He specifically cited whistleblowers Chelsea Manning and Edward Snowden and speculated that whoever recently gave the CIA spy tool files to WikiLeaks was also likely a millennial.

Whether or not his examples bear out his point is another matter. It may well be that “loyalty, secrecy, and transparency” mean something different to Millennials. It may also mean that the government has grown into a very different monster than it was when his generation, and mine, was young. Continue reading →

Some people just have a way with words, and Andrew Fleischman expressed the problem with notable aplomb:

In my experience, an officer will claim to have experienced a lot of things when two hundred grand is on the line. If he had to claim to know the exact taste of uncooked pig rectum to seize the assets, you’d better believe his training would cover it.

This tasteful explanation comes in response to the commonplace justification for a seizure of $201,000 from a safe found in James Leonard’s car during a search conducted with the putative consent of his passenger.

Police pulled James Leonard over at 3 in the morning for speeding and following too closely. For some reason, this led to a discussion of how much money he was carrying with him. He said $800. His passenger said $1000. Police asked the passenger for consent to search the car, and she allegedly gave it, though the encounter doesn’t seem to have been filmed.

Police found a safe in the trunk of the car. Once again, this was unfilmed, but it is possible that officers were briefly blinded as their pupils converted to novelty-sized dollar signs.

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Fault Lines?  Yes, Fault Lines, the best criminal law commentary on the web, reflecting all points of view rather than your favorite echo chamber, dedicated to making readers understand how it all works from the people who actually do what others merely write about.

Fault Lines can now be found at FaultLines.us. It’s been re-established as a New York non-profit for educational purposes under FL Foundation Inc. If you appreciate hearing from real defense lawyers, judges, prosecutors, scholars and investigators, show your love with a donation to keep Fault Lines alive.

And if you see any problems with the new site, please let me know so we can deal with them. As managing editor of Fault Lines, I thank everyone for reading Fault Lines and your support.

Not everyone who passes through a TSA checkpoint upon entering (or, when they totally screw up, even as passengers are leaving the airport) the secure area of an airport has an unpleasant experience. And who doesn’t want them to catch a terrorist, even though they’ve never actually done so. But for those who have enjoyed the euphemistically-challenged deeply personal hard work of TSA agents to play their role in security theater protect you, they aren’t nearly as much fun as some might believe.

One aspect (of many) that has been particularly troubling is the way that the TSA has basically enabled sexual assault of travelers. If you felt that wasn’t too bad, have no fear, the TSA is apparently increasing the sexual assaulty nature of these searches:

The new physical touching—for those selected to have a pat-down—will be be what the federal agency officially describes as a more “comprehensive” physical screening, according to a Transportation Security Administration spokesman.

Denver International Airport, for example, notified employees and flight crews on Thursday that the “more rigorous” searches “will be more thorough and may involve an officer making more intimate contact than before.”

Got that? I love the way they dance around the fact that this is randomly allowed sexual assault on people who just want to travel somewhere. But it’s described as “physical touching” that is more “comprehensive” and “may involve an officer making more intimate contact.”

Continue reading →