It’s valuable for a knowledgeable person to take the contrarian view* of something that almost everyone finds unconstitutional and anathema to foundational notions of legal propriety, so it’s good that former AUSA, George Washington Law adjunct and Washington Post columnist Randall Eliason challenged the near-universal view that sentencing defendants for conduct underlying a crime for which the jury acquitted is wrong.

My biggest problem with the arguments against acquitted conduct sentencing is what they appear to assume about the impotency or incompetence of judges.  There will be some cases where consideration of the facts underlying an acquitted count will be appropriate, and some cases where it won’t.  If the prosecutor tries to increase a defendant’s sentence based on acquitted conduct where the facts clearly do not support that, the judge can reject it.  Judges are not mere passive conduits through which prosecutors work their will. Continue reading →

The Oklahoma Court of Criminal Appeals made short work of former Judge Timothy Henderson’s having a sexual relationship with one of the prosecutors handling the trial of Robert Leon Hashagen, III, for the murder of 97-year-old Evelyn Goodall.

“It is no exaggeration to state that the very integrity of the judiciary in Oklahoma is at stake here,” attorney James Lockard argued in a defense appellate brief. “If a man can be convicted and sentenced to die in prison at a trial before a judge and prosecutor who were literally in bed together, then no citizen of Oklahoma can or should expect to get a fair trial in any Oklahoma court.”

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The characterization of the amicus brief was both pointedly humorous and not funny at all.

Brief of Amici Curiae David Sosa, David Sosa, David Sosa, David Sosa, & the Institute For Justice in Support of Petitioner David Sosa

The last David Sosa was the poor guy who was twice arrested in Martin County, Florida, because of an arrest warrant out of Texas for another David Sosa and, the second time, held for three days despite having no indicators that he was the same person except for the name. He was finally released, for the second time, after prints came back showing that he was a different David Sosa. The other David Sosas? Continue reading →

There are two things right and left agree upon. The first is that censorship of the internet is critical to our survival. The second is that Judge Terry Doughty’s injunction in Missouri v. Biden is over and under inclusive, or to put in lay terms, isn’t very well framed. So there’s consensus? Not really, since other than agreement about these two things, they come out on opposite sides of the issues.

That much is true by definition. Doughty’s injunction generally prohibits various agencies and officials from “meeting with social-media companies,” “specifically flagging content or posts,” or otherwise “urging, encouraging, pressuring, or inducing” the “removal, deletion, suppression, or reduction of content containing protected free speech.” The injunction also bars the defendants from “threatening, pressuring, or coercing social-media companies” toward that end and from “urging, encouraging, pressuring, or inducing” them to “change their guidelines for removing, deleting, suppressing, or reducing content containing protected free speech.”

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The head of Stanford’s Supreme Court Litigation Clinic, Jeffrey Fisher, raises a very important point. It may take five votes to win at the Supreme Court, but it takes four votes just to make it on the docket. And the right/left split is 6-3, leaving the liberal/progressive side one vote shy of  a certiorari grant.

Why does this matter? Because the rule of law requires the court to do more than simply adhere to precedent when deciding cases. It also requires the court to reprimand lower courts when they refuse to follow Supreme Court decisions. If it doesn’t, those rulings are in danger of becoming dead letters, precedents that lose their force without being overruled.

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If one employee can’t get along with others, it creates two problems. The first is an unhappy workplace, where the employee who is deemed the cause of the problem makes other employees unhappy, maybe even miserable. While the assertion that happy employees are productive employees may not be quite as accurate as some believe, miserable employees can be both unproductive and a time-consuming source of needless drama and angst. Continue reading →

There are no numbers to tell how pervasive the problem is, or even what exactly the problem is. It’s not that there is reason to doubt it’s a problem, that women real estate agents are exposed to male buyers and sellers in vacant houses and apartments where the men can sexually assault or rape the agents. Then there are also men who flirt or make jokes they find humorous which the agent does not. Some decry this as sexual harassment, though others will argue that it’s hardly on the same level as sexual assault.

Still, women real estate agents want to be protected. Continue reading →

[Ed. Note: The following is reprinted with permission from Judge Milt Hirsch’s “Constitutional Calendar.” Judge Hirsch sits in the criminal division of the 11th Judicial Circuit Court in Miami-Dade, Florida. Before being elected to the bench, he was a board member of the National Association of Criminal Defense Lawyers and president of FACDL Miami.]

If you’re a judge or lawyer about my age – and yes, there are still a few people and several sequoia trees that are about my age – I know exactly why you decided to become a lawyer.  In fact, if you’re about my age, I know exactly when you decided to become a lawyer. Continue reading →

Is it true that progressive prosecutors have failed to create the change they promised? That’s almost impossible to say, both because some have been far more successful than others and because there’s no metric by which to measure success. Some district attorneys have opened bureaus to review old cases that have resulted in exonerations or, if not quite exonerations, at least concessions that convictions were wrongfully obtained, resulting in reversal and dismissal. Others have prosecuted cops for everything from rape, and theft to murder, where nary a cop was prosecuted before.

Is this not a significant step forward?

And yet, two prawfs assume it’s been a bust. The reason? Prosecutorial mutiny. Continue reading →

At VC, noted ‘nymophobe (just kidding) Eugene Volokh runs through his Judicature article on the choice of pseudonyms. Most of us take for granted that pseudonymous litigants will use the name “John Doe” or “Jane Roe,” but that gives rise to a problem.

To give just one example, there are six Doe v. Trustees of Indiana University cases just from 2020 to 2022 that have yielded opinions available on Westlaw, all in the same field (higher education law). These seem likely to be joined by new cases each year, and they will remain potentially citable for decades to come. Continue reading →