Judges are not “fierce advocates,” despite the wishes of New York Times’ copy editors. Judges are, ideally, impartial, using their authority to apply the law. Ingham County Court Judge Rosemarie Aquilina conveniently abandoned that role by prioritizing the feelings of the “sister survivors.” whom former U.S. Gymnastics doctor Larry Nassar sexually assaulted, over Michigan’s charge to jurists regarding the avoidance of judicial impropriety.

A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. Without regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect.

Nassar’s sentencing hearing is a clear example of a judge straying from promoting the public’s trust in a fair and impartial judiciary. Let’s begin with Judge Aquilina’s decision allowing over one hundred and sixty victim impact statements across seven days.  Continue reading →

Yale Law professor Stephen Carter counsels his first year students with the following wisdom: never support a law you aren’t willing to kill to enforce. Apparently Timothy J. Farnum, a Colorado area doctor, is ready to kill if it means retailers don’t sell smartphones to minors.

“One of my sons, I took [his smartphone] away, and it was a pretty dramatic, very violent outburst,” said Dr. Timothy J. Farnum, a father of five who is an anesthesiologist by training. “He was very addicted to this little machine. It kind of scared me, and that’s really how it started.”

By “it,” Dr. Farnum means “Parents Against Underage Smartphones,” his 501(c)(4) political action group dedicated to stopping smartphones from reaching the hands of preteen children. The group’s mission, according to their website, is stemming the tide of “easy nonstop internet access for children disguised as progress.” Continue reading →

Dating is really hard, especially when you’re a criminal defense lawyer. We’re usually busy saving lives and keeping people out of jail, so there’s precious little time to find the man/woman/non-binary-gender-fluid person of your dreams.

People outside the trenches are having problems with dating too. It’s such a problem that people are writing advice articles about it from all perspectives. Don’t fret! It’s time criminal defense lawyers got their own dating tips. After all, we’re called counselors for a reason.

1) Do you pay your bills on time or up front and in full? Continue reading →

Ed. Note: Following a so-very-Tennessee story about the decisions made by a non-lawyer “judicial commissioner,” the question was posed for debate between Chris Seaton and David Meyer-Lindenberg: Should non-lawyers hold judicial positions? This is Chris’ argument.

People charged with crimes or sued civilly have to go before a judge who will hear their case. Because these are legal matters, involving laws, the average person might expect the person wearing the black robe had trainng and experience as a lawyer. In fourteen states, that idea doesn’t hold up, as non-lawyer judges preside over many cases, including criminal trials.

Take a deep breath before you start impersonating a blue-haired gender-studies major and screech “Sixth Amendment! Due Process! Fundamental Fairness!” Having non-lawyer judges is a good thing, and the judiciary doesn’t need only lawyers in its ranks.

First, the idea of a non-lawyer judge is an American ideal almost as old as the nation. In 1831, Alexis de Tocqueville* praised the American “justice of the peace.” Continue reading →

If you are a State Supreme Court Justice issuing a press release on which areas of indigent representation reform the state’s highest court intends to back, it’s easy to shrug off calls of “bullshit” from the private bar. When the Public Defenders, the first line of defense for the poor in the state call bullshit, you might want to rethink your stance.

“The devil’s in the details,” Tennessee District Public Defenders Conference Executive Patrick Frogge said in an interview last week. “I’m glad the Supreme Court is taking some actions. The recommendations they’ve made in their press release share a common theme of steering more cases to public defenders. I’m not sure the recommendations carry with them a commiserate increase in the number of public defenders.” (Emphasis added.)

Frogge is correct in his analysis. The Tennessee Supremes want the public defenders’ offices to take on more cases. They don’t want to actually fund those offices or adequately staff them. They want the public defenders to take every case possible.

Mark Stephens, the head of Knox County’s public defender office, cut Chief Justice Bivins’ press release, and the work of the task force, straight to the bone. 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.]

Continue reading →

Ed. Note: Following the District of Columbia Court of Appeals decision in Jones v. United States, holding that the use of a “Stingray” cellsite simulator required a warrant under the Fourth Amendment, Chris Seaton and Andrew King were challenged to debate whether the Third-Party Doctrine or the Supreme Court’s Riley v. California decision should control. This is Chris’ argument.

On June 25, 2014, the United States Supreme Court issued a ruling that made every red-blooded, patriotic American heart swell with pride. Chief Justice Roberts’ words screamed the very essence of “rock flag eagle”:

Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.

This emphatic affirmation of our Fourth Amendment rights caused a certain Admiral to channel his inner Jesse Pinkman* on reading Riley v. California. Unfortunately the ink wasn’t even dry on the opinion before cops and legislators started to try and figure out ways around Riley. Continue reading →

Ed. Note: In light of United States Rep. Anthony Brown’s (D-MD) proposed bill to prohibit “hate speech” on campus, Chris Seaton and Andrew King have agreed to debate whether Congress should craft “hate speech” prohibitions for colleges. This is Chris’ argument:

Before taking the law school plunge, I briefly toyed with the notion of becoming a psychologist. An elective class in sociology at the University of Tennessee introduced me to an atheist African-American professor who openly mocked me in class, claimed the attacks on September 11, 2001 were a “white man’s conspiracy,” and proudly professed a love of Fidel Castro.

At the course’s conclusion, this professor sent me an email with my grade and expressed her deep concern that I thought my classmates and the course material were “a load of crap.”

If the lunatics running the asylum students and faculty of today had their way, that professor could be punished for “hate speech.” We must stand boldly against people like Maryland’s Representative Anthony Brown and firmly say “Fuck you, we stand for the free exchange of all ideas.” Congress has no business regulating speech on college campuses, much less crafting bills to punish “hate speech.”* Continue reading →

Ed. Note: Like the old Fault Lines days, Chris Seaton and Mario Machado will duke it out over whether the pardon of former Maricopa County, Arizona, Sheriff Joe Arpaio was the worst pardon ever. This is Chris’ argument.

Maricopa County, Arizona put their trust in a man named Joe Arpaio back in 1993. They gave him a badge, a gun, the state-sanctioned license to kill and an entire Sheriff’s department. A man tasked with upholding the law would then repeatedly violate the law and abuse the power of his office for twenty-four years. Pardoning “Crazy” Joe Arpaio, the self-styled “America’s Toughest Sheriff,” is undoubtedly the worst pardon in Presidential history.

Let’s look at the offense Arpaio committed: criminal contempt of court. At face value, it seems harmless compared to other offenses wiped clean by presidential pardon. Arpaio defied a federal judge’s order to stop detaining undocumented immigrants. That’s a far cry from jury tampering, robbing a bank or tax fraud. Contempt is the mechanism by which the courts enforce their orders. Essentially, a judge told an old man to not do something, and the old man said “no.”

What makes Arpaio’s defiance so odious is his insistence on enforcing a certain aspect of Arizona’s human-smuggling law. Specifically, this section of the law: Continue reading →

When a defendant walks on criminal charges following a horrendous crime or tragedy, the outrage mob heads to the streets or social media crying foul play and the lack of fairness in the courts. This anger, seething in the Smoky Mountains, conceals a troubling revelation. Someone doctored a prosecution agreement giving Sevier County DA’s the authority to prosecute crimes in federal parks, and no one’s talking about it.

Aggravated arson charges against the boys, ages 17 and 15, were dropped Friday in part because 4th Judicial District Attorney General Jimmy Dunn did not have authority under a 1997 agreement between the state and federal government to prosecute crimes committed in the Great Smoky Mountains National Park.

The park was left out of the 1997 agreement, which granted both state and federal authorities the power to prosecute crimes committed on federal lands within Tennessee. That meant only federal authorities could level charges for crimes committed in the park. That omission was discovered during Dunn’s attempt to prosecute the boys.

 National parks are federal land. That means absent an agreement like the one former Governor Don Sundquist reached with the Feds giving local law enforcement power to prosecute crimes in national parks, the US Attorney’s office is left with the job. Continue reading →