My views about Ninth Circuit Judge Alex Kozinski’s conduct were expressed before any of the following. I point this out not to suggest my views are any more valuable than anyone else’s, but to show that this post isn’t influenced by bias. Koz was wrong.* His conduct was completely improper and reflects exceptionally bad judgment. This matters because he’s a judge, and as I wrote, “judgment is a jurist’s stock in trade.”

But what’s been put out since by people who are lawyers, lawprofs and putatively not blithering idiots, scares the living crap out of me. As Andrew King correctly called it, “knee-jerk.”

In response to Will Baude’s twit about Heidi Bond’s post, Georgetown lawprof Marty Lederman calls Judge Kozinski a “monster.” Continue reading →

While pretty much everyone but the badge-licking lunatics found the killing of Daniel Shaver and the acquittal of ex-Mesa Cop Mitch Brailsford an outrage. Patterico, who’s real life California prosecutor, Patrick Frey, did something few have the interest or capacity to do. He went through it in a detailed, thorough and, most importantly, thoughtful way. Unlike the #MeToo expressions of anger, this was illuminating.

The online reaction has been that it was a “murder” and that the jury was insanely wrong.

I’m not so sure about that. Maybe that view is right. Maybe it’s not.

Many pieces ask you to make your initial judgment by showing you a video with very little additional context. I’m going to take a little different approach, and give you the context that the police officers were facing before I give you the video to watch.

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No one argues that Balthus wasn’t a great painter. No one argues that the 1938 painting in the Metropolitan Museum of Art isn’t a masterpiece. But that’s not enough to prevent demands for its removal.

The artist, Balthasar Klossowsi de Rola, or Balthus, had used the model, Thérèse Blanchard, the daughter of a neighboring Parisian restaurant worker, over the course of three years, making 10 paintings of her beginning in 1936, when she was 11. The image in question features her at 12 or 13, with her legs bent and slightly apart, her eyes closed, her thoughts seemingly lost to fantasy. Her skirt is hiked up to reveal a red lining and a pair of white cotton underwear.

Rather than rely on a description, the image speaks for itself. Continue reading →

The year was 2008, and the news was huge. It didn’t come at a time when there was a daily man in power being accused of sexual impropriety, so when it happened, it stood out. And lawyers took notice.

The blawgosphere is abuzz, awash, atwitter, about the Los Angeles Times revelation that 9th Circuit Chief Judge Alex Kozinski has a kinky side, revealed by “sexually explicit” images on his personal website.  That he was currently presiding over an obscenity trial of Ira Isaacs, described by the WSJ Law Blog as “accused of distributing criminally obscene sexual-fetish videos depicting bestiality and defecation. (For background on the Isaacs case, click here for an AP story.)“

Some have seized upon this delicious opportunity to challenge Judge Alex’s ethics and called for his recusal from the case.  Others have questioned whether the images are “crude and misogynistic — pictures of naked women as cows; pictures of womens genitalia with the caption, “Bush for President”; implied bestiality as humor.” And Howard Bashman asks whether this is newsworthy at all.  After all, would we be writing about this if Judge Alex was spotted at the newstand buying Playboy?

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Daniel Shaver was just a ordinary guy who did nothing wrong to deserve the attention of Mesa Police Officer Phillip “Mitch” Brailsford.

On January 18, 2016, Daniel Shaver, a traveling pest-control worker, was in between shifts at his motel, a La Quinta Inn and Suites in Mesa, Arizona. In the elevator, he met a man and woman who’d just finished their own workdays, the two later testified in court. Did they want to join the 26-year-old Texan for Bacardi shots in his room?

They’d already begun drinking when one of the guests asked about an unmarked case in the corner. Was it musical instrument? No, a pellet gun. He used it at work. His job was to go hunt down birds that had flown into businesses including Walmart. Soon he was standing by his room’s window showing off his pellet gun to the man. Down below, two motel guests in the La Quinta Inn and Suites hot tub looked up and saw a man with a gun near a fifth-floor window. Someone called 911.

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No, this isn’t about the lawyer version of whack-a-mole, as interesting an idea as that may be. It started in earnest* about a year ago, when padawan Keith Lee of Associates Mind and author of The Marble and the Sculptor decided to start a slack room just for lawyers. It was to be a place for lawyers to hang in private and talk cool lawyer stuff.

A year later (I’m guessing on dates, so don’t hold me to it), Keith’s got many hundreds of lawyers hanging around. What this means is sweeping up the joint and herding the feral lawyers has become a job. It was time to make a change.

It’s exploded and grown beyond what I thought possible. I used to think a dedicated “social media for lawyers” was a dumb idea, but that was obviously wrong. Continue reading →

A parent has a constitutional right to raise her child in the manner she see’s fit, which may well be a disturbing thing to those who are certain they know better, but that’s how the deal generally works. And parents also have the right to free speech. Neither of these did much to help Ginger Breitzman.

The Court of Appeals has upheld a West Allis woman’s disorderly conduct conviction for yelling some really nasty stuff at her 14-year-old after he burned some popcorn.

The District 1 court panel agreed that Ginger Breitzman’s conduct was “profane” and, under the circumstances, could have provoked or caused a disturbance, even in their own home.

After her son had burned some popcorn in 2012, she called her son a “retard,” a “(expletive) face,” and a “piece of (expletive).” She argued that wasn’t enough to provoke a disturbance.

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Oklahoma County District Attorney David Prater would be just the sort of prosecutor you might expect to seize upon any excuse to cover up a killing.

David Prater began his law enforcement career at 19 years of age when he was hired by the Cleveland County Sheriff’s Office as a Deputy Sheriff. At the age of 20, Mr. Prater became the youngest cadet ever to graduate from the Norman Police Academy. During his time with the NPD, he was a dedicated and respected Master Police Officer.

In addition to his patrol duties, he was a member NPD’s Tactical Unit, Underwater Rescue and Recovery Team and the Norman Police Department’s Pistol Team. Additionally, he was responsible for training other officers in patrol techniques, firearms, and Emergency Vehicle Operations and was awarded more than 20 commendations from Norman’s Chief of Police.

With a background like this, many would naturally leap to the conclusion that Prater would love him some cops too much. This is worth noting as a reminder that simplistic assumptions about people, their integrity, what goes on in their heads, are often wrong. Continue reading →

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 →

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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