For those of you who have been around here for a while, or at least around the blawgosphere in the olden days when there were a bunch of criminal defense lawyers with blawgs, you probably remember Norm. Norm was there before me, hanging with Mike Cernovich at Crime and Federalism, and later on his own, until one day he decided to break ties with the blawgosphere, pretend we were all evil and he was the lone good lawyer who had enough of being tainted by his association with us mean, nasty lawyers.

But Cerno told me his practice was dead, so Norm decided to repackage himself. He built a new website, hired a publicist, and tried to become an important lawyer. That was more than a decade ago, and he’s had some success since then. He beat the case of Yale student Saifullah Khan, which was a great win. Continue reading →

There is a logical fallacy called “Appeal to Authority,” where someone with ascribed expertise in a subject makes an assertion to be accepted as true because the authority said so. It creates a tension. You, not an expert, are put in a position of being compelled to accept the word of an “authority,” while at the same time the authority may be wrong, whether intentionally or otherwise, such that a false assertion is accepted not because it’s true or accurate, but because an expert said so.

On the other hand, people with legitimate expertise are generally far better authorities on a subject than someone who lacks any expertise. Continue reading →

“Hand downs” are back. Yay, you say? More likely, what are “hand downs,” a very fair question for anyone who isn’t paid to sit in the press section of the Supreme Court gallery. It’s when the justices announce their decision to the audience, summing up their rationale and conclusion. It’s not law, like the opinions themselves, but a tradition disappeared during the pandemic, when oral argument went livestream, justices got to feign asking questions in order to put on a play for the listening audience and the lay listening public got to hear argument they rarely understood or appreciated.

While the Court will resume hand downs, it will not do so by livestream, so that it will still only be heard by the audience in the room. Frankly, who cares? Why Linda Greenhouse, of course. Continue reading →

There is little doubt that a defendant has a constitutional right to present a defense, and that among the defenses available is duress, that a defendant was forced to engage in the conduct giving rise to the crime. But as a matter of public policy, that choice isn’t available when the crime is murder. But what about the variation of the crime grounded in “depraved heart” murder?

Theresa M. Gafken was convicted following a jury trial in the St. Clair Circuit Court of second-degree murder, MCL 750.317. Defendant drove her vehicle at speeds exceeding 100 miles per hour while fleeing the police; she ran a red light and collided with other vehicles, killing one person and severely injuring several others. Defendant was originally charged with one count of second-degree murder and two counts of operating a vehicle while intoxicated (OWI), MCL 257.625(5)(a). Continue reading →

My old Congressman, Tommy Suozzi, has an interesting op-ed about his replacement in the House as representative of the New York 3d District. Tommy says it pains him to see a con man sitting in his seat. Of course, it may not happen if there is no speaker elected, but that’s another problem. Assuming the new class gets sworn in today, it will include Santos, despite his stunning array of lies and potential campaign finance crimes

Assuming George Santos, if that really is his name, will get sworn in today provided a speaker is elected, there’s nothing to be done to stop it. As we learned when they tried to keep Adam Clayton Powell Jr. out, as long as someone qualifies constitutionally and was elected, he gets to sit. That he got there because of lies does not disqualify anyone from being in Congress. Continue reading →

After a couple years of grievances dropping, which coincided with a pandemic that closed campuses and prevented students from having personal interactions, the Department of Education’s Office of Civil Rights is thrilled to announce that complaints are back and there are more of them than ever.

Nearly 19,000 complaints were filed to the office in the last fiscal year — between Oct. 1, 2021, and Sept. 30, 2022 — more than double the previous year and breaking the record of 16,000 filed in fiscal year 2016, according to figures provided by the department. The surge reversed the decline in complaints filed to the office under the Trump administration, which rolled back civil rights protections.

Continue reading →

When  asked what a woman is at her confirmation hearing, Judge Ketanji Brown Jackson demurred. Some attacked her for it, but it was the only answer she could legitimately provide since that will likely be an issue that comes before her as an associate justice on the  Supreme Court. The Eleventh Circuit’s en banc decision in Adams v. School Board of St. Johns County, in contrast with the Fourth Circuit’s  G.G. v. Gloucester County decision, is why.

Both cases involve the question of whether a sincere transgender high school student can use the bathroom/locker room that corresponds with the students’ gender identity rather than sex. In both, the students possessed, at least in part, the genitalia with which they were born. The same Title IX carve-outs for single sex bathrooms applied. Yet the decisions took opposite directions. Continue reading →

Over the past year, there are many posts left unwritten here. To my mind, there was usually a reason. Maybe it was something I had already written about over the 15 years of SJ’s existence. Maybe it was something that seemed premature to write about, a possibility of a post with too many unknowns to be ripe for discussion. Maybe it was something that many had already written about, such that it was just beating a dead horse. Maybe it was something to which I had no value to add. Maybe it just didn’t interest me.

For some, my failure to join in the chorus of people praising or condemning something meant I took a side, and it was the “other” side if it wasn’t the side they wanted, expected or demanded of me. The simplistic woke platitude of “silence is complicity.” Continue reading →

In a deep dive, ProPublica tracks how Tracy Harpster, a deputy chief from Ohio, turned a pompous yet ridiculous claim of knowing “what a guilty father, mother or boyfriend sounds like” into a cottage industry and junk science.

Harpster tells police and prosecutors around the country that they can do the same. Such linguistic detection is possible, he claims, if you know how to analyze callers’ speech patterns — their tone of voice, their pauses, their word choice, even their grammar. Stripped of its context, a misplaced word as innocuous as “hi” or “please” or “somebody” can reveal a murderer on the phone.

Continue reading →

An unfocused, meandering New York Times op-ed that struggles to find a point opens with a bizarre anecdotal paragraph.

On a cold October morning, Colin Canham and his wife, Sara Emerick, were found dead in an apparent murder-suicide. Mr. Canham was found lying near a firearm outside the couple’s home. Ms. Emerick was inside. A detective told me that it seemed that Mr. Canham had committed a crime of passion — a legal term that implies a lack of premeditation, an act supposedly born out of love or devotion.

The link for “legal term” provides a relatively accurate definition of “crime of passion.” Continue reading →