Ed. Note: This is a guest post by Roswell, Georgia, lawyer Charles Landrum, who has contributed some seriously good thoughts in his comments here and, as the post shows, has some serious thoughts about the potential damage from an ill-advised suit that could well end up establishing a seriously bad precedent.

DRE: a “drug recognition expert.” A name-drop giving cops magical powers to detect drugs that don’t exist and drug use that didn’t happen, like when the arrestee is impaired…because he is having an ischemic stroke. See, e.g., Love v. Tift County, Georgia. Unfortunately, there is a strong appeal to refer to cops as “experts.”

In Steed v. State, the Court of Appeals pointed out the cop’s training despite it being irrelevant to the run-of-the-mill lay observations giving rise to probable cause:

Miller, who, in addition to his regular training, had taken extensive additional training to be recognized as a drug recognition expert and traffic accident reconstruction expert, recognized the odor of alcohol coming from Steed and noticed that his eyes were watery and bloodshot.

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Maybe Gloria Allred’s little girl has a brain, but she’s done everything humanly possible to conceal it. Sure, she’s borrowed from mom’s playbook of shameless self-promotion, vapid blathering and trying desperately to get her TV-cutie mug in front of TV cameras by haranguing on behalf of alleged rape victims. But Lisa Bloom is supposed to be a lawyer.

Ms. Bloom, who says she is working only as an “adviser” to Mr. Weinstein, is known for her work representing alleged (and often confirmed) victims of sexual harassment, including those who took on Mr. O’Reilly.

“Only” an adviser? That’s why they call lawyers “counselors.” Advising is what lawyers do. Advising isn’t an “only” thing. Advising is a lawyer thing. Bloom fails in her attempt to slough off her relationship to Harvey Weinstein, who it turns out has been using his clout as movie mogul to nail women who would otherwise never give him the time of day,. And something about getting off on them watching him shower, for whatever that’s worth.

The schadenfreude of Bloom burning her brand on Weinstein’s dinosaur is good for a few lulz, since she was never someone to be taken seriously in the first place, but no one licks boots (or body parts) more than a wannabe. Continue reading →

I posed the question of which Michelle Goldberg would appear on the op-ed page of the New York Times. The question is answered in her apologia for the budding student radicals, testing the boundaries of their youthful good intentions. It’s the Goldberg with Slate-level intellectual depth, trying to pull off the sort of spin that Mark Joseph Stern gets away with* when accuracy is secondary to clicks and feelz.

The confrontation began just as the A.C.L.U.’s Claire Gastañaga started talking about “knowing your rights during protests and demonstrations.” A multiracial group of around a dozen black-clad students marched to the front of the auditorium, arrayed themselves before the stage and began chanting things like “A.C.L.U.! You’d protect Hitler too!” They’d been moved to protest because the A.C.L.U. had defended the rights of white supremacists to rally in Charlottesville, Va. At one point they intoned “Shame! Shame! Shame!” in a cadence that recalled a disturbing scene of public humiliation from “Game of Thrones.” Gastañaga was not able to continue speaking.

I likened this to burning the heretic at the stake. Goldberg was more generous toward the “multiracial…black-clad students.”

It can be hard to know what to make of reports of a free speech crisis on college campuses. Some progressives claim that concerns about left-wing student authoritarianism are overblown, and occasionally I’m tempted to believe them.

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For reasons that aren’t easily explained, people fail to put together two immutable facts: when a person runs for public office, that person needs to raise money for the campaign. When people donate to a campaign for a person running for public office, they may have a less than aspirational reason for doing so.

The District Attorney of New York County, Cyrus Vance, Jr., won the post in a hotly contested election after his predecessor, Robert Morgenthau, retired. Elections cost money.

The New Yorker reports that DANY was about to prosecute Ivanka and Donald, Jr. until a meeting with Trump’s long-time lawyer, Marc Kasowitz, who has conclusively demonstrated his lack of skill in criminal defense.

On May 16, 2012, Kasowitz visited Vance’s office at One Hogan Place, in downtown Manhattan—a faded edifice made famous by the television show “Law & Order.” Dan Alonso, the Chief Assistant District Attorney, and Adam Kaufmann, the chief of the investigative division, were also at the meeting, but no one from the Major Economic Crimes Bureau attended. Kasowitz did not introduce any new arguments or facts during his session. He simply repeated the arguments that the other defense lawyers had been making for months.

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The lesson was obvious: either do exactly as the kids with the torches and pitchforks demand, or you’re a heretic. And when you’re a heretic, there’s only one thing to do with you.

The ACLU, flush with cash and its own self-importance, thought it could survive with a foot in both worlds, being woke to the transient feelz of social justice while maintaining a distant finger on what was once its mission, civil rights.

So silly. Continue reading →

After twenty-three years of motions, hearings, trials and sentencings in over 4,000 criminal cases spanning four districts, I want to share my thoughts on the art of arguing the frivolous.

I practiced federal criminal defense law for seventeen years before I became a federal judge. For whatever reasons, in both retained and CJA cases, I had excellent client relations and to my knowledge never once argued a frivolous motion a client suggested. I listened and was patient with clients, but was able to convince clients why arguing frivolous positions was not in their best interest.

On occasion, I explained to clients, and confirmed in written detail for them, why I would not argue their frivolous claims. On very rare occasions I indicated that I would withdraw before I would argue the frivolous position. I explained why arguing a frivolous position harmed my credibility with the judge, probation office and the AUSA, and worse for them, harmed their chances of getting the best result possible. I do not recall ever having to withdraw.

So it is against this experiential backdrop that, to be blunt, I have been stunned by how often criminal defense lawyers argue frivolous positions. And I have a generous view of what frivolous means. It has to be totally devoid of a factual or/and legal basis, and be illogical, bordering on the ludicrous, before I am willing to label it frivolous. Continue reading →

Tennessee has an indigent representation problem. No less an authority than Justice Sharon Lee knows this. That’s why untold sums of taxpayer dollars were thrown at an “Indigent Representation Task Force,” which rambled across the state listening to aggrieved attorneys and citizens.

That task force, after nearly two years’ work, issued a series of recommendations on how to fix the indigent representation problem. When the recommendations were formally announced, attorneys across the state rejoiced. They were solid, responsible reforms to the current system that would fulfill the mandate of Gideon v. Wainwright. The justice system wouldn’t be a drawn out Tennessee Waltz, it would actually resemble justice.

Current Chief Justice Jeff Bivins understands there are major problems with the current system. He was happy enough to tell the world in a press release on October 3.

The task force confirmed what many of us already suspected: The system needs major [reforms.]

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Not only is Edith Macias a thief, having been caught on camera in the act, but a thief who shows no remorse for her offense. But don’t condemn her so quickly. The University of California, Riverside, ethnic studies major saw red, and that, in her mind, was reason enough.

The victim, Matthew Vitale, then used his video camera to capture his effort to retrieve his red MAGA cap. Continue reading →

This is whimsical but true. If I mightily stretched things, I could even say this is about legal realism.

Long ago—when I was 12—I lived in Florida. I took to water skiing. One day while racing along on two skis I decided to drop one and ski on the other.[i] The remaining one was not a slalom ski. But, I made it work until it didn’t.

As I fell forward into the onrushing water the ski submerged tip first. Then, the butt end popped back up and hit me in the mouth. My teeth, and particularly my lowers, were never the same.

My parents evidently had an aversion to dentists (as I do now) and, eventually, I came to like my new look anyway. Think of actor Bill McKinney in Deliverance.[ii] Continue reading →

Some people worry about one thing. Some people worry about other things. Some people see their worrying as a commodity for which they deserve compensation. They’ve given this a name, emotional labor.

The crying, the snapping at him—it all required damage control. I had to tell him how much I appreciated the bathroom cleaning, but perhaps he could do it another time (like when our kids were in bed). Then I tried to gingerly explain the concept of emotional labor: that I was the manager of the household, and that being manager was a lot of thankless work. Delegating work to other people, i.e. telling him to do something he should instinctively know to do, is exhausting. I tried to tell him that I noticed the box at least 20 times over the past two days. He had noticed it only when I was heaving it onto the top shelf instead of asking for help. The whole explanation took a lot of restraint.

This is a leap into the middle of a narrative, and the “box” referred to, the “box” giving rise to “the crying, the snapping at him,” was a box of gift wrap that was taken out to give the writer, Gemma Hartley, a necklace for Mother’s Day.

I stumbled over the box of gift wrap he had pulled off a high shelf two days earlier and left in the center of our closet. In order to put it back, I had to get a kitchen chair and drag it into our closet so I could reach the shelf where it belonged.

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