Author Archives: SHG

Prickett: Is It Felony Murder When the Police Do It?

[Ed. Note: Greg Prickett is former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.]

Felony murder[1] is an old concept that if someone dies while a suspect is committing a felony (other than some form of homicide), then the suspect can be charged and convicted with murder. It is routinely used in criminal prosecutions across the nation. On January 28, 2019, Houston Police officers, acting on a no-knock search warrant that had been fraudulently obtained, entered a house and a gunfight ensued.

During that gunfight, the two occupants of the home, Rhogena Nicholas, 58, and Dennis Tuttle, 59, were killed, and four Houston Police officers were wounded by gunfire. The wounded include the officer who falsified the search warrant affidavit, Gerald Goines. Goines is now under investigation for these crimes, a number of which are felonies. Goines has also been in several shootings, being shot in 1992 and 1997. Continue reading

Bieler: We Are Going to Mass Incarcerate Forever

[Ed. Note: This is a guest post by my brilliant Fault Lines colleague, Sam Bieler,]

After we parted ways at Fault Lines, Scott told me that someday I would read something that would piss me off, and when that day came SJ would be there. Well, here I am, nice and pissed off because of what Andrew Fleischman tweeted. Or rather, what people tweeted in response. You see, Andrew had a notion about sentencing. The reactions to that notion explain why the U.S. will probably have mass incarceration forever.

Andrew asked whether, given the non-violent nature of Paul Manafort’s crimes, the 19-24 year sentence Mueller requested was excessive. Andrew’s tweet offered a chance to think about why and how we choose to punish. Andrew promptly got ratioed by morons. Continue reading

de Blasio’s Morals Over Money

In an ironic comparison, David Leonhardt compares the jobs Amazon would have brought to New York City with cupcakes for kids.

Imagine that a bunch of children are sitting around a table when a seemingly beneficent adult walks into the room carrying a plate of cupcakes. The kids burst out in excitement — until they notice a problem: There are fewer cupcakes than children.

At this point, the adult announces some ground rules. To receive a cupcake, the children will have to compete with one another. The adult will accept cash or other objects of value. Praise for the adult’s kindness would also be welcome.

Continue reading

Short take: Seriousness And The Kitchen Sink

My windy pal, Mark Draughn, parsed the “New Green Disaster” put forth by the AOC Committee in the newly woke House of Representatives. After running through some of the wish-list of irreconciliable, unrelated and impossible aspirations, he comes to an important point.

I don’t actually believe global warming is a myth. But after reading the Green New Deal, I find it easier to be sympathetic with people who believe it is, because it must seem awful convenient to them that the biggest proposal to fight global warming…is a giant wish-list of progressive policies.

And I find myself wondering…does Alexandria Ocasio-Cortez believe in global warming? She seems quite happy to use it as an excuse for everything in the Green New Deal, but if she really believed global warming was a disaster, wouldn’t she have proposed a better solution?

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The Odd Revival Of The E.R.A.

The current iteration of the Equal Rights Amendment was proposed in 1972, with a seven-year deadline for ratification by three-fourths of the states. It fell short by three states, but never really died. Its operative language was a sign of the times, and provides a sign of our times in retrospect.

Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Note the word “sex.” Not “gender,” as has become the substitute description, as sex was a binary descriptor, male and female, and today we have 31 flavors. Had the ERA passed, would it have protected transgender people? Gay people? There is nothing about the word “sex” that’s intersectional. But as Susan Chira points out, women have achieved much of the nightmare Phyllis Schlafly cautioned would come to pass. Continue reading

Short Take: Walking Humbly With Manafort (Update)

Few things are as universally misreported as federal sentencing, both because it’s hard to grasp and it involves math. Consequently, the Special Counsel’s sentencing memo regarding Paul Manafort has been largely misunderstood. The memo opens with the totally ordinary statement that Mueller’s office does not dispute the Presentence Investigation Report’s calculations of the Federal Sentencing Guidelines.

As an initial matter, the government agrees with the guidelines analysis in the Presentence Investigation Report (PSR) and its calculation of the defendant’s Total Offense Level as 38 with a corresponding range of imprisonment of 235 to 293 months.

This is not the same as saying that “Manafort deserves up to 24.5 years in prison,” or that “Mueller’s Office Recommends Paul Manafort Serve Up to 25 Years in Prison.” Thats not remotely what Mueller’s office is saying. They are merely agreeing with the guidelines calculations, which are now advisory after Booker and will be subject to argument at sentencing, where the government may choose to address sentence or leave it to the discretion of the judge. Continue reading

ACLU’s David Cole Plays The Race Card

It’s not that he isn’t a brilliant lawyer, but that only makes his WaPo op-ed harder to swallow. David Cole, legal director of the ACLU, knows better. It seems impossible that he could make such a rookie mistake as to conflate racial discrimination with sex discrimination on campus.

After all, race is a suspect classification. Sex is not. Sex discrimination is prohibited by Title IX. Racial discrimination is not. There are similarities from 35,000 feet up, but no knowledgeable person would ever, ever, conflate the two in argument. If it happened in a courtroom, the lawyer would get laughed out of the well, on a good day.

On a bad, the judge would rip him a new one for trying to pull the wool over him. And yet, in an op-ed, intended to be read by the general public, David Cole deliberately conflates the two. What other purpose could there be to such a ridiculous comparison than to mislead and deceive? Yet, he does. Continue reading

Short Take: Until They’re 55

Eric Turkewitz has been carefully watching the New York legislature, as it’s been busy writing new laws now that the Democrats hold a majority in the Senate for the first time in memory. The latest, called the “Child Victims Act,” has significant ramifications for both civil and criminal practice. Taking a moment off from neglecting the subways, Governor Cuomo signed the bill into law.

Today New York joined the growing list of states that allows victims of child sexual assault to come forward and bring suit for that assault, even if the attack is decades old. The law will also extend the statute of limitations on criminal actions.

On the civil side, the Child Victims Act will allow people to proceed up to the age of 55, where they claim that they were sexually assaulted as kids.

On the criminal side, the statute of limitations won’t start to run until the child has turned 23.

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The Inexperienced Juror

During voir dire, jurors are asked whether there is any reason why they can’t be fair and impartial. One juror in Massachusetts answered the question honestly.

Q.: You feel like you might have a bias in the case?
A.: Yeah. I worked with, like, low income youth in a school setting. I worked a lot with people who were convicted of — like teenagers who were convicted of drug crimes. And frankly, I think the system is rigged against young African American males. I’m happy to serve on the jury trial — on the jury because I think it’s important, but —

Q.: You think that belief might interfere with your ability to be fair and impartial?
A.: I don’t think so.

After further prodding at the bench, questioning by the court concluded with this: Continue reading

Punishing Amazon, The Bad Corporate Citizen

Amazon pulled out, because it could. Its plan to build a campus and corporate headquarter in Queens was hardly perfect, but no plan could be. Still, the benefits to New York exceeded the $3 billion in tax incentives and New Yorkers supported it.

There were all sorts of problems with the deal New York cut to bring Amazon to the city, and Amazon is no paragon, but its abrupt withdrawal was a blow to New York, which stood to gain 25,000 jobs and an estimated $27 billion in tax revenue over the next two decades. This embarrassment to the city presents a painful lesson in how bumper-sticker slogans and the hubris of elected — and corporate — officials can create losers on all sides.

Overall, support was 56% for Amazon. Notably approval increased to 70% for Blacks and 81% for Latino. Continue reading