The Supreme Court dropped its opinion in the hotly-anticipated Carpenter case, holding in a 5-4 decision (or 5-3-1, if one sees Justice Gorsuch’s dissent as a quasi-concurring opinion) that a warrant is required for law enforcement to obtain historical cellphone data.

The Walrus and the Carpenter
Were walking close at hand;
They wept like anything to see
Such quantities of sand:
If this were only cleared away,’
They said, it would be grand!’

If you’re looking for scholarly discussion of the opinion, you would do better to read Orin Kerr’s thoughts, or perhaps Lior Strahilevitz and Matthew Tokson. Unlike the academics, and the justices, there was one thing I hoped would come out of this decision. It didn’t. Continue reading →

In a meandering homage to Mother Nature, a challenge between competing press releases and promises with caveats and reality, the New York Times editorial applauds a new policy while noting that it doesn’t quite fix the problem:

A new policy Mayor Bill de Blasio announced on Tuesday will lead to fewer people being arrested for smoking marijuana in public. But the new approach — in which officers would usually issue summonses instead of hauling people off to jail — does not address the core problem of racial inequality and poses new dangers.

The issuance of summonses rather than arrests is a step forward, though it doesn’t change who gets the summons, which will remain the black and brown guys uptown because that’s where the cops make their numbers. There’s no big mystery to it, even though it eludes so many New Yorkers. Cops don’t bust weed smokers in Sutton Place penthouses. Cops toss kids smoking reefer on the corner of 163rd Street and St. Nicholas Avenue.  Continue reading →

There is no explanation for why the name Donna M. Small came up as a perp. Somebody must have given it up, but who, why, on what basis, remains a mystery. And that she was indicted along with a mass of others has legal, if not factual, significance, since an indictment theoretically means that a grand jury heard evidence and decided that there was probable cause to believe that Small committed a crime.

But when the offense relates to a mass of people, the reality is that it’s not a grand jury focused on one individual, but a mass offense and random names they’re told by cops. There were pictures, video, and somebody said one of them was identified as Small. So Small was indicted.

Donna M. Small was arrested last year on charges she dealt cocaine to a police informant. Continue reading →

He was days away from receiving his Ph.D. in physics, his thesis having been successfully defended. His family was traveling from his native India to beautiful Ithaca, New York, to be there for the ceremony. And why shouldn’t they, as this was a huge achievement and a glorious day for Yogesh Patil and his family? Except there was a more important value at stake for Cornell University than Patil’s degree.

The complaint was lodged by a former physics Ph.D. student who previously accused Patil’s advisor Prof. Mukund Vengalattore, physics, of sexual assault.

Was Patil accused of some sexual misconduct as well? Hardly.

LA* is not accusing Patil of sexual misconduct himself; instead, she is alleging that he retaliated against her for making a “good faith” sexual misconduct report – presumably against Vengalattore – according to Title IX documents reviewed by The Sun.

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When you present it as an “indisputably true context,” how can it be disputed?

It’s not that Eric Schneiderman (the now-former New York attorney general accused of abuse by multiple women) pushed me over the edge. My edge has been crossed for a long time, before President Trump, before Harvey Weinstein, before “mansplaining” and “incels.” Before live-streaming sexual assaults and red pill men’s groups and rape camps as a tool of war and the deadening banality of male prerogative.

If that fails to be either indisputable or contextual, then the only possible answer is you just don’t get it and you are the guy whom Suzanna Danuta Walters, a professor of sociology and director of the Women’s, Gender, and Sexuality Studies Program at Northeastern University, loves to hate. Continue reading →

That the name, American Civil Liberties Union, remains is merely a branding ploy for the new grassroots advocacy organization focused on the progressive side of populism. In fairness, it’s not as if they tried to hide their turn to People Power, having been quite open about it in the hope of enticing support and money from its new base.

But while the shift happens, what of their litigation wing? Now flush with cash since the election of Trump and the buckets of money donated after his Muslim Ban, they’re taking cases, many of which are consistent with civil liberties, serve the goals traditionally attributed to the ACLU and, frankly, doing a fine job of it?

Somebody leaked an internal memo to former ACLU board member Wendy Kaminer, ironically marked at the top, in all caps, “CONFIDENTIAL ATTORNEY WORK PRODUCT,” which reveals their new perspective on litigation. Continue reading →

At The Atlantic, Jesse Singal wrote about the unspoken side of the transgender issue. There has been significant “growth” in the issue, but there are some unpleasant “why” questions involved.

The current era of gender-identity awareness has undoubtedly made life easier for many young people who feel constricted by the sometimes-oppressive nature of gender expectations. A rich new language has taken root, granting kids who might have felt alone or excluded the words they need to describe their experiences. And the advent of the internet has allowed teenagers, even ones in parts of the country where acceptance of gender nonconformity continues to come far too slowly, to find others like them.

But when it comes to the question of physical interventions, this era has also brought fraught new challenges to many parents. Where is the line between not “feeling like” a girl because society makes it difficult to be a girl and needing hormones to alleviate dysphoria that otherwise won’t go away? How can parents tell? How can they help their children gain access to the support and medical help they might need, while also keeping in mind that adolescence is, by definition, a time of fevered identity exploration?

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A persuasive argument not only makes the points in its favor, but acknowledges and addresses the points against it. ACLU lawyer Ría Tabacco Mar, who “represents L.G.B.T. people facing discrimination,” neglected to do the latter in her op-ed addressing the Supreme Court’s refusal to stop the execution of Charles Rhines.

On Monday, the Supreme Court announced it would not stop South Dakota from killing a man who may have been sentenced to death because he is gay.

Some of the jurors who imposed the death penalty on Charles Rhines, who was convicted of murder, have said they thought the alternative — a life sentence served in a men’s prison — was something he would enjoy as a gay man.

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A flack sent me a pitch yesterday that caught my eye. Very few do. Most are complete nonsense, often trying to pawn off someone to quote for a subject whose thought no one would otherwise care about. Delete.

But this pitch interested me, so I responded to the flack to send me an advance copy of the “open letter” that would come out in the media today. “Thanks! Will do!!!” was the reply.

Then . . . nothing. After writing two posts this morning, I replied to the “will do” email that I received nothing and he blew the pitch. This is what I received in reply: Continue reading →

It’s nothing new, though whenever a non-lawyer writer discovers prosecutorial misconduct, they’re sure it’s an epiphany. And for criminal defense lawyers, it’s always nice to put the issue of prosecutors playing “hide the Brady” on the table for others to see, whether just to remind them or, if we get really lucky, motivate people to give a damn.

Jordan Smith has a post at The Intercept revisiting the problem of Brady concealment, putatively stemming from testimony at a hearing before the Texas lege.

She told the committee that while cases involving prosecutorial misconduct have “dominated discussions about the integrity of our criminal justice system in recent years,” she was “pleased to report that those cases have become less prevalent.” She’d done the research and found that over the last 12 months, the Court of Criminal Appeals had only granted relief four times based on a claim that prosecutors had committed misconduct by withholding evidence.

Continue reading →