Among the reforms Philadelphia District Attorney Larry Krasner has instituted is a list of cops whom he won’t put on the stand because of their history of misconduct.

Philadelphia’s Fraternal Order of Police Lodge 5 is suing because District Attorney Larry Krasner has a list of cops with bad records, and his office uses this list to determine whether those cops can be called to the stand to testify in cases.

The reason for the database’s existence is eminently logical—if prosecutors use testimony from police officers with a documented history of misconduct, the defense can then bring that up and use it to cast doubt on an officer’s integrity and testimony and seed doubt in the jurors’ minds. In short: Part of the purpose of the list is to keep cops off the stand that could potentially wreck the prosecution’s case and also to alert prosecutors in advance about these potential problems.

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At Volokh Conspiracy, Orin Kerr provides a copy of the report of the Ad Hoc Committee  To Review The Criminal Justice Act, of which he was a member. The crux of the problem is the same one that’s plagued the federal indigent criminal defense function forever, money. But the committee’s focus was on the mechanism for dealing with money, now vested in the hands of individual judges.

Here’s the basic idea. Our committee found that there is a pressing need to reorganize federal criminal defense. We concluded that judges have too much of a role in overseeing appointed defense lawyers. Federal judges are deeply involved in indigent criminal defense. They appoint lawyers under the CJA, appoint federal defenders, review voucher requests, approve experts, and the like. Someone needs to play that oversight role, of course. But as our report explains, we think the system would be better served if there were an independent agency serving that role rather than individual judges who are also presiding over the same cases. There’s just too much of a conflict when judges are playing both roles. And some judges aren’t the best at overseeing defense functions that they may not have the experience to evaluate.

There’s little reason to recite the concrete problems, voucher cutting, refusal to pay for investigators and experts, waiting for payment and, of course, that the money for CJA funding come through the judiciary’s budget,than the judges are more concerned that they get the right tone of marble in their courtrooms than whether the panel lawyers. Continue reading →

Like so many things in life, if used well, lawfully, it made perfect sense. But if used malevolently, it was an easily abused bludgeon. It only depended on two variables, the integrity of the lender and the integrity of the borrower. It’s called a “confession of judgment.”

The lenders’ weapon of choice is an arcane legal document called a confession of judgment. Before borrowers get a loan, they have to sign a statement giving up their right to defend themselves if the lender takes them to court. It’s like an arbitration agreement, except the borrower always loses.

There are high risk borrowers, people who either may not be entirely inclined to repay loans or, for legitimate reasons, just can’t pay. They need money to run their business, pay for medical care or college, buy a car to get to work, but their credit is poor and no bank will give them a shake. What to do?

Then an opportunity with some lender offering loans to anyone, to you, comes along. The interest rates are high, usually usurious depending on how they spin it, but it’s money. You’re not going to get money from anywhere else, and you need it, so there’s no other game in town. You agree, sign the docs and, boom, there’s money in the back. One of those docs is captioned “confession of judgment.”

Armed with a confession, a lender can, without proof, accuse borrowers of not paying and legally seize their assets before they know what’s happened. Not surprisingly, some lenders have abused this power. In dozens of interviews and court pleadings, borrowers describe lenders who’ve forged documents, lied about how much they were owed, or fabricated defaults out of thin air.

A confession of judgment is nothing new, having been in use from the English common law forward. There are reasons for it, good reasons. It avoids the expense of a collection suit, which would increase the cost to the lender and make it less beneficial to give a high-risk loan. It avoids the problem of borrowers in the wind, the ones who take the money and disappear, such that they can’t be served with suit because no one knows where they are. Hard as it is to imagine, some borrowers aren’t particularly honest about their intention to repay a loan, and others, even with good intentions, tend to prefer not to face the consequences of their circumstances.

The mechanism is easy: file the confession of judgment along with an affidavit of default and you get a judgment against the borrowers, which can then be used to attach and seize assets. While the attach and seize part remains a problem, as many borrowers have nothing to attach or seize, and you can’t get blood from a rock, at least there will be a judgment on file in case they ever manage to accumulate assets.

But the mechanism is also too easily abused.

The man identified himself as a debt counselor. He described a bizarre legal proceeding that he said was targeting Duncan without her knowledge. A lender called ABC had filed a court judgment against her in the state of New York and was planning to seize her possessions. “I’m not sure if they already froze your bank accounts, but they are RIGHT NOW moving to do just that,” he’d written in an email earlier that day. He described the lender as “EXTREMLY AGGRESSIVE.” Her only hope, the man said, was to pull all her money out of the bank immediately.

His story sounded fishy to the Duncans. They had borrowed $36,762 from a company called ABC Merchant Solutions LLC, but as far as they knew they were paying the money back on schedule. Doug dialed his contact there and was assured all was well. They checked with a lawyer; he was skeptical, too. What kind of legal system would allow all that to happen 1,000 miles away without notice or a hearing? They shrugged off the warning as a scam.

It wasn’t a scam, and they were actually fortunate to have even this bit of belated and odd notice.

The following Monday, Doug logged in at the office to discover he no longer had access to his bank accounts. A few days on, $52,886.93 disappeared from one of them. The loss set off a chain of events that culminated a month later in financial ruin.

Before you shed a tear, consider how and why the Duncans found themselves in this situation.

The Duncans’ ordeal began in November 2017 with an unsolicited fax from a broker promising term loans of as much as $1 million at a cheap rate. The couple had owned their agency, a Re/Max franchise, for three years and now had 50 employees, but they still weren’t turning a profit. A planned entry into the mortgage business was proving more expensive than expected. Doing some quick math, Doug figured he could borrow $800,000 to fund the expansion, pay off some debt, and come out with a lower monthly payment. The spam fax felt like a gift from God.

We all get spam faxes offering loans, and most of us wonder who would be so foolish as to respond to them. That would be the Duncans. Why didn’t they go to a bank? Why were they in a position where they needed a large cash infusion, particularly since their business wasn’t profitable? There’s nothing wrong with having a real estate agency, or even trying to expand into the (ironically) mortgage business, but there’s a point where it’s improvident to throw good money after bad. That point is when you get your loan from spam faxes.

The lender here was bad in every respect, usurious rates and filing the confession of judgment despite the Duncans not being in default. By filing a false affidavit of default, they were committing a crime, as they were by collecting interest above that legally permitted.

Assuming one isn’t bothered by engaging in crime, it’s an easy trick to pull off and, given the impoverished state of the victim, hard for the borrower to address without the ability to retain counsel. Sure, they could go to the District Attorney about the false filing in court, but many don’t think to do it and it doesn’t put the stolen money back in their bank account.

On the one hand, without a confession of judgment, there would be few legitimate lenders willing to make high-risk loans to people who can’t qualify for bank loans, so there may be no possibility for a risky business to get the money it needs to survive. On the other hand, confessions of judgment are like handing the key to your front door to a burglar, if the lender is dishonest and inclined to abuse the law.

To complain that the fault is the confession of judgment is easy, provided the story you hear is the Duncan’s and not the business that stole from them. Then again, the alternative would have been Jim Duncan getting no “gift from God” at all. And as a general rule, if a lender’s business model is to spam fax you their offer, maybe there’s a reason.

It was 2015 when Columbus Day took its last gasp. There were many reasons why it was a really poor choice of holiday, why Columbus was unworthy of celebration, from his not having discovered anything except from the European colonialist perspective, to his having raped an island native when he arrived. Some decided it was better to use the day to celebrate the indigenous people who suffered as a result of his arrival in the New World, their world.

The New York Times has decided to similarly correct the history of Thanksgiving.

Not to rain on our Thanksgiving Day parade, but the story of the first Thanksgiving, as most Americans have been taught it, is not exactly accurate.

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Conor Friedersdorf is a name often mentioned here, both because I think he’s exceptionally smart and occasionally too kind, generous to a fault to people who might not be worthy of his largesse. I now add my name to the list.

For more than a decade, the criminal-defense attorney Scott H. Greenfield has been writing about American law and culture at Simple Justice. Among the site’s readers are lawyers, law professors, judges, civil libertarians, and advocates of criminal-justice reform. What keeps me coming back is his zealous advocacy for a consistent set of principles no matter how unpopular their application might be in a given instance.

There may be no better compliment than to characterize what I attempt to do here as “zealous advocacy for a consistent set of principles no matter how unpopular their application might be in a given instance.” It’s never entirely clear that I live up to that description, and many would, and have, questioned my views for their consistency. Continue reading →

It’s almost impossible to consider the nature of the offense without retching. It is a horrible thing to do to any girl. Female genital mutilation is disgusting.

The federal statute at issue states: “Whoever knowingly circumcises, excises or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person” under the age of 18 shall be fined or imprisoned for up to five years, or both.

It’s been outlawed in more than 30 countries and 27 states, as well as under 18 U.S.C. § 116. District Court Judge Bernard Friedman takes no issue with the horror of the procedure, but that wasn’t the issue before him. Continue reading →

In that peculiar way that only comes about when someone argues vehemently against the very point they otherwise claim to believe, the mantra “but it’s not a criminal trial” was born during the tumultuous Senate confirmation hearings for Brett Kavanaugh, reflecting one of the worst displays of politicizing confirmation for the Supreme Court possible.

In that case, the absence of any meaningful process in Kav’s “trial” for crimes committed against Christine Blasey Ford decades earlier was rationalized away as a “job interview.” It was far from an analogy, but it wasn’t entirely off base. It served to rationalize a misbegotten grasp of what was being done by those who, under most other circumstances, would bemoan the deprivation of due process.

Since they hated Kavenaugh, they needed some means to overcome their hypocrisy, and latched onto the “but it’s not a criminal trial” excuse. Anything to beat the unpleasantness of cognitive dissonance, or compel an unwilling but passionate individual to suffer the burden of thinking. Continue reading →

Every Thanksgiving, someone writes a post about how to argue with your crazy uncle. Sometimes the uncle is characterized as angry, or deplorable, or some other unpleasant word, but there are two components that never change. It’s always an “uncle,” because not even the woke want to argue with daddy, who pays for their iPhone and Cheetos, and it’s always the brilliant, reasonable and completely righteous youngster informing their idiot elder of how he’s destroying the universe.

While this is a daily occurrence for many of us, as I am deluged with law students and baby lawyers informing me how wrong I am about everything because they’re all the best and brightest Lake Wobegon has to offer, it takes on a special meaning for Thanksgiving, when young people are compelled by the evil forces of family to spend time with relatives they despise. They may attack an Old like me out of choice, but they are forced to sit next to their uncle who doesn’t even use Axe Body Wash or manscape. Continue reading →

It’s bad enough, both for substantive as well as factual reasons, that the Supreme Court in Smith v. Doe held that sex offender registration was not punitive, but civil, and therefore beyond the reach of the Ex Post Facto Clause. Not only was it grounded in utterly baseless statistics of recidivism, but it indulged in the fantasy that rhetoric was an adequate substitute for inquiry before destroying the future of an entire class of people.

In other words, this categorical group known as “sex offenders” was so deserving of a life of misery, prohibition and shunning for the putative safety of the community that there was a rational basis for civil rules to make them societal outcasts. Where they can live, work, exist for decades, if not the rest of their lives, was constrained to the point of impossibility. And should they mess up compliance with any detail, back they go to prison.

But it’s not criminal. It’s civil. For no better reason than legislatures say it’s not punitive, but for the safety of the children, Even though it’s punitive. Extremely punitive. Continue reading →

How many times have lawyers tried to tell the passionate believers in videotaping the cops that there are still laws that apply, even to them? This video, taken at the Babylon, New York Long Island Rail Road station, is a fascinating example of a fellow who believed a little too much in his invulnerability and the righteousness of his cause.

Smoking is prohibited on LIRR platforms. The guy taking the video was smoking a cigarette. Had he not been, he would have been fine taking video, but he was. And that means he’s subject to a summons, which means the cop is authorized to demand identification so he can write the ticket. Continue reading →