Author Archives: SHG

Short Take: Woman Power (You Knew This Was Coming, Right?)

The list of sex abusers reads like a who’s who of powerful dudes. Until it didn’t.

Singer Melanie Martinez has been accused of sex assault by a former friend, who claims to have “repeatedly said no” to her sexual advances.

Timothy Heller, a Los Angeles-based aspiring singer, came forward with the allegations late Monday, sharing her story on Twitter about how she said Martinez, an artist who shot to stardom after appearing on NBC’s “The Voice,” sexually assaulted her.

This came out on the twitters, when Heller told the story of how Martinez, her best friend and the person who “saved her life,” turned the relationship sexual. Continue reading

Fourth Circuit’s Flaccid Decision

The story of Manassas, Virginia detective David Abbott’s obsession with obtaining images of 17-year-old Trey Sims’ erect penis has become legend, much to Abbott’s dismay given his deep association with possession of such things. There was a crime to solve, and this young man had what the detective believed to be the offending penis.

After all, when one makes obtaining images of a teen’s erect (not flaccid, which would be entirely different) penis his life’s goal, why see it as a sick perversion rather than the dogged determination of a dedicated detective? After the district court conferred qualified immunity on Abbott*, the Fourth Circuit reversed.

We cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others.

Here, the obvious, unconstitutional invasion of Sims’ right of privacy that was required to carry out the warrant rendered reliance on that warrant objectively unreasonable, thereby eliminating the protection that a search warrant typically would have afforded an executing officer.

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Wedding Bell Blues (Update)

The Supreme Court will hear oral argument in one of the most contentious cases of the term, Masterpiece Cakeshop v. Colorado Civil Rights Commission. In advance of the argument, the Cato Institute put on a debate between Ilya Shapiro and John Paul Schnapper-Casteras, Special Counsel for Appellate and Supreme Court Advocacy, NAACP Legal Defense Fund. It was not only a great debate, but more importantly, demonstrated that we can have thoughtful discussion about contentious issues. Some of us, at least.

To many, the issue on the table is one of conscience. Can Jack Phillips, because of his sincerely held beliefs, refuse to bake a cake for a same-sex wedding? This is certainly the issue that most people have in mind when arguing the point. Remember when USA Today twitted that this would re-open the same-sex wedding debate? Remember when a Colorado state senator tried to change the law to create such a right?

There is no doubt that a great many people refuse to accept the Supreme Court’s ruling in Obergefell v. Hodges, and see Masterpiece Cakeshop as their way around the law. Why doesn’t the First Amendment’s Free Exercise Clause protect their belief that same-sex marriage is wrong? As strongly as these people may want to believe, this just isn’t the law. Continue reading

A President And The “I” Word

The victim of the crime was certain the evidence was sufficient, if not overwhelming, to convict the perpetrator. Yet inexplicably, the prosecutor decided not to pursue the charge, filing a nolle prosequi and ending the case. Did she obstruct justice?

Does the answer to the question change based upon whether the motivation was malevolent or benign? It’s a rational basis to distinguish prosecutorial decision-making, and thus comes into play when questioning whether the President of the United States, the nation’s supreme law enforcement officer under Article II of the Constitution, can be indicted for the crime of obstruction if he tried to exercise his constitutional authority for improper purposes.

Trump’s lawyer, John Dowd, asserted that the president cannot, by definition, obstruct justice because he has the supreme authority to decide what offense is to be prosecuted, and thus has the power to express his views on whether a prosecution should be maintained. Continue reading

Short Take: Que Serra, Serra

Stroll around the lovely campus of Stanford University and one name surrounds you. Junipero Serra.

Two dorms; an academic building; a street (Serra Mall) that fronts Stanford’s historic Main Quad and is the university’s official address; and a major road running through the 8,000-acre campus are all named after Junipero Serra, the 18th century Spanish-born Franciscan friar who founded the first nine of the 21 California missions.

Now Native American and other campus activists are pressuring Stanford to erase from the campus all traces of the padre. Serra, the activists say, brutalized Indians at the missions, covered for Spanish colonization and squelched indigenous culture by converting the Indians to Catholicism.

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Two Wrongs And One Right

Weed? Many believe it’s just not a bad thing in general, but most believe that it has significant medicinal uses. Whether you believe legalizing recreational use of marijuana is a good idea, few would argue that it shouldn’t be available for medical users, despite Schedule I and Jeff Sessions’ ability to recite the entire script of Reefer Madness.

But should medical users be denied the right to vote? Oh wait, wrong right.

Hawaii is one of 29 states that allow medical use of marijuana, but it is the only state that requires registration of all firearms. If you are familiar with the criteria that bar people from owning guns under federal law, you can probably surmise what the conjunction of these two facts means for patients who use cannabis as a medicine, which Hawaii allows them to do only if they register with the state. Some of them recently received a letter from Honolulu Police Chief Susan Ballard, instructing them to turn in their guns.

“Your medical marijuana use disqualifies you from ownership of firearms and ammunition,” Ballard says . . ..

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A Lawprof’s Head Turner (Update)

If there is anyone Stanford lawprof Michelle Dauber hates more than Judge Aaron Persky, it’s former Stanford swimmer convicted sex offender Brock Turner. Turner is appealing his conviction, as is his right.

Brock Turner, the former Stanford University student and champion swimmer who was found guilty in March 2016 of sexually assaulting an unconscious woman on campus, is appealing his conviction.

A 172-page brief filed on Friday by Mr. Turner’s lawyer, Eric Multhaup, said Mr. Turner did not get a fair trial for several reasons, including the exclusion of testimony by character witnesses who spoke of his swimming career and his performance in school and attested to his honesty, the appeal said.

That’s a rather long brief, making the word “brief” seem somewhat incongruous. Whether it’s got merit or not has yet to be seen. The issues raised go to the conviction, whether Turner was denied due process and prevented from offering his defense. An appellate court will ultimately make a decision about it, as that’s the way appeals work. Continue reading

The Last Thing A Suicidal (Or Any) Person Needs

When all you have is a hammer, and you’re Facebook, what could possibly go wrong?

This is software to save lives. Facebook’s new “proactive detection” artificial intelligence technology will scan all posts for patterns of suicidal thoughts, and when necessary send mental health resources to the user at risk or their friends, or contact local first-responders. By using AI to flag worrisome posts to human moderators instead of waiting for user reports, Facebook can decrease how long it takes to send help.

By “send help,” Facebook means call the cops. Facebook’s hammer is artificial intelligence. The cops’ hammer is deadly weapons. The option of sending “mental health resources” is easier said than done, as there aren’t any for the most part, and “local first-responders” tend not to be the local suicide hotline roadshow. They tend to be the cops.

But all of this raises the question: how will Facebook’s AI know you, and know you well enough, to detect “patterns of suicidal thoughts”? If your friends, your family, don’t see issues, is Facebook up to the task? Continue reading

Are Courthouses Sanctuaries? (Update)

There is a strong policy argument against ICE, Immigration and Customs Enforcement, arresting people at a courthouse. It creates an extremely strong disincentive for defendants, witnesses, complainants, to show up. While it may not be a big deal to appear as required for jumping a turnstyle, if the consequence is getting held in ICE custody for a year before being deported to a country you left when you were three months old, the incentives for appearing are very different.

But this is a policy concern, even if it eludes a great many people. It is not the law. Contrary to popular belief, ICE gets to arrest people wherever they are, courthouses included. This seemed to elude lawyers in Brooklyn.

Nearly 100 defense attorneys staged an impromptu protest ouside a Brooklyn courthouse Tuesday after a lawyer’s client was arrested by federal authorities on an immigration charge.

When Rebecca Kavanagh walled [sic] into Judge Rosemarie Montalbano’s courtroom, she was warned to speak to her client immediately because U.S. Immigration and Customs Enforcement agents were present and prepared to detain him. Continue reading

New Name For Bad Idea: “Information Escrow”

No decent person will shed a tear for a guy who is guilty of sexually molesting or raping a woman. When the man admits he did it, whether it happened yesterday or 20 years ago, we can take comfort in knowing the allegation is true, provided he didn’t fudge the confession because his publicist told him that was the smart way to cop a plea.

But the wave of feelz has a way of catching decent guys who should know better. At the Atlantic, Conor Friedersdorf caught the wave.

A scholarly article published in 2012 by Ian Ayres and Cait Unkovic defined the challenge: Many are reluctant to be the first person to accuse someone of sexual harassment, in part because the accused “routinely responds by trying to impeach the credibility of the accuser.” Yet first accusations often lead to more accusers coming forward. That’s a dynamic that tends to protect recidivist harassers.

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