At Volokh Conspiracy, Orin Kerr raises an interesting question arising out of the D.C. Circuit’s decision in Jones v. Kirchner.

The question in the case is whether a magistrate judge’s decision to limit a warrant search to daytime hours is binding, such that the officers necessarily violate the Fourth Amendment if they execute the warrant at night. The court presented the issue as easy and answered the question “yes.”

For most of us, there would be little question as to why anyone would find the decision otherwise. In some states, New York for example, executing a warrant at night requires judicial authority, and failure to obtain that approval is the end of the question. After all, what purpose is served by requiring a neutral magistrate to authorize a search if the cops are free to do as they please regardless?

But Orin throws a monkey wrench into this bright line rule: Continue reading →

There has been much to appreciate about the changes implemented by the new(ish) Kings County District Attorney, Ken Thompson. not the least of which is he’s not Joe Hynes. Thompson has reviewed and tossed questionable past convictions, particularly by lying mutts like disgraced Det. Lou Scarcella. But hard work makes a guy hungry, and how can one do his best prosecuting when his tummy is growling?

When a food order came in from the Brooklyn district attorney, Ken Thompson, the officers in charge of protecting him knew the drill: Go pick it up — a bagel or a burger or, at least once, a piece of salmon — and pay out of their own pocket. Later, the district attorney’s office would reimburse them.

That bit of convenience for the elected chief prosecutor in Brooklyn went on for months after he took office in 2014, and included meals for Mr. Thompson when he worked nights and weekends.

The man worked nights and weekends. Do you think Cy Vance works nights and weekends? And misses all those garden parties in the Hamptons? Get a grip.* Continue reading →

It’s hard to blame him for saying, “screw this, I don’t need to have my family go through this insanity.” It’s not that the voters who elected him to office have lost faith in him. It’s not even that the ridiculous petition of a “million” clueless feminists caused the system to give him the boot.

Not even the law professor who disgraced Stanford Law School for her stupidity and nastiness, and who swears she will persist in her quest to cleanse the judiciary of judges who won’t rule through the feminist lens, won the day. It’s that Judge Aaron Persky, who imposed a sentence that feminists felt was too lenient, decided he didn’t need to put up with any more of this crap.

The judge, Aaron Persky, of the Santa Clara County Superior Court, will be moved to the civil division in San Jose, Calif., effective Sept. 6, according to an announcement late Thursday.

“While I firmly believe in Judge Persky’s ability to serve in his current assignment, he has requested to be assigned to the civil division, in which he previously served,” the Santa Clara County Superior Court’s presiding judge, Rise Pichon, said in the announcement, which was obtained from the court on Friday.

Continue reading →

People often ask if there’s a sure-fire, fool-proof way to beat a criminal case.  There is, but it’s not recommended.

While Mr. Libous was convicted last year of lying to F.B.I. agents and expelled from the State Senate, prosecutors have said that the statute of limitations barred them from charging him with the more serious crimes that were the subject of his lies: crimes like bribery and fraud.

Now, more than a year after his conviction, and some three months after his death from prostate cancer at 63, it might be said that time is again on his side. And it appears likely to help him, in the eyes of the federal authorities, get away with more, including the crime for which he was already convicted, despite his death.

You read that right. The trick is to die before the conviction is final. Ha! That’ll show ’em.

That is because Mr. Libous died after he filed his notice of appeal, but before it had been adjudicated. A seldom-used legal doctrine known as abatement ab initio, or abatement by death, allows the family or estate of a felon, under such circumstances, to move to have the conviction vacated and the indictment dismissed. Continue reading →

Prologue: It was more snark than serious that the New York Times had started publishing mad libs op-eds just to troll its readers. After all, one totally incoherent op-ed doesn’t make a trend. But there’s a second, this time by an associate professor at Teachers College, Columbia University, Christopher Emdin.  Poe’s Law? Trend? Or can the Times’ editors no longer distinguish rational positions from gibberish?

When dealing with a subject of some serious importance, and the failure of young black men to be adequately educated in public to achieve success in life, whether to go on to a college or find sufficiently fulfilling and lucrative employment, it’s a problem for everyone. When a person is vested in society, has a decent education or job, he will strive to maintain and improve the norms of society. If you’re doing well, you want to continue doing well, to do even better.

One of the things a criminal defense lawyer learns from years of representing young black men charged with crimes is that their lifestyle choices are framed by two primary influences: the first is that they can’t overcome the challenges of their youth. The second is that they have few alternatives. We can attack them for not being strong enough, smart enough, tough enough, for not rising above their circumstances, but that doesn’t help. Not everybody is Hercules.

Some aren’t that smart, and struggle with a lousy education born of myriad reasons, strong street influences that are far cooler and more alluring than the boring, unhip prospect of working hard in a crappy job for a pittance. Some are very smart, but the distance from 125th Street to the C Suite is too far to bridge. Continue reading →

Of the many legal fictions enjoyed by judges, few have done as much damage to as many people as calling sex offender registries “regulatory.”  The trick is that if it’s characterized as regulatory, then it’s not punitive. And if it’s punitive, then it opens a whole slew of constitutional rights that would render the concept unlawful. But if legislators squint and write the “r” word instead of the “p” word, and judges squint and agree, problem solved!

To see this game in action, we need only take a quick stroll down memory lane to Rainer v. Georgia.

Writing for a 5-2 majority, Justice Harold Melton rejected arguments that the provision, as applied to Rainer, was cruel and unusual punishment. Sex offender registry laws, Melton wrote, “are regulatory, not punitive, in nature.” “Because the registration requirements themselves do not constitute punishment, it is of no consequence whether or not one has committed an offense that is ‘sexual’ in nature before being required to register,” Melton wrote….

See what Judge Melton did there? Continue reading →

When Northern District of Texas Judge Reed O’Connor granted Texas’ motion to enjoin the bureaucrats’ implementation of Title IX “guidance” requiring schools to accommodate transgender students in bathrooms, locker rooms and housing, advocates were furious. They hoped to sneak in their administrative rewrite of the law before the bell when a new administration might not be as willing to circumvent the law to achieve their goal.

Beyond appeals to emotion, they accuse Texas Attorney General Ken Paxton of “cheating” by forum shopping the case to O’Connor because he’s a sympathetic judge. Or, as they put it, antagonistic to transgender issues.

One thing Paxton didn’t mention is that the state did have a choice in where the the new case was filed. Texas chose the courtroom of U.S. District Judge Reed O’Connor, the same judge who had just ruled in the state’s favor in the other transgender case.

The phrase “forum shopping” is derogatory, suggesting that someone cheated to find a court where he could prevail rather than the proper court where an action should have been brought. Did Texas cheat?  That would certainly seem to be the clear implication. Continue reading →

They were two of the most powerful men in New York State. They doled out committee assignments and positions (which means money). No bill made it to the floor without their approval. And then there was the member money, the billions of discretionary dollars handed out to their loyal subjects to spread amongst the voters to show how much they were loved.

In the feudal system of politics, they were the liege lords. You bowed to them, and received their favors, or you didn’t exist. Shelly and Dean. They owned New York until Preet took them down.  They are now appealing their convictions, and their respective judges have allowed them to remain out on appeal. Outrageous?

Ever since they were found guilty last year in separate trials, Mr. Silver, 72, a Manhattan Democrat who was speaker of the State Assembly, and Mr. Skelos, 68, a Long Island Republican who served as the State Senate majority leader, have moved aggressively to stave off the day that they had to begin serving their prison sentences and pay the imposed fines.

In seeking bail pending appeal, they argued that a Supreme Court decision in June that overturned the corruption conviction of former Gov. Bob McDonnell of Virginia, a Republican, had changed the law in a way that increased their chances of winning reversals.

Continue reading →

In a rambling, borderline incoherent and ultimately pointless op-ed, a Brooklyn writer named Leslie Jamison has found a way to make herself the most victimest victim of victims. Not an easy feat, these days, but then, her fertile imagination gave rise to an idea no one ever thought about before.

So what’s her trick? Micro-victimization.*

Jamison, you see, is a jogger. Big deal, you say? Every day, millions of people jog. They have for decades, since jogging became fashionable in the ’70s because people looked silly standing there in those cool suits. And any idiot could jog, making it the perfect physical activity for those who needed a fixx (not a typo).

But Jamison connected dots that have nothing to do with each other, at least not in the fashion of being materially different than any person being in the wrong place at the wrong time, She throws in social justice jargon, which is inherently usable with absolutely any scenario under the sun because of its joyous lack of meaning, and BAM, made herself the most victimy victim ever! Continue reading →

JoAnne Musick is not only a contributing writer at Fault Lines, but the past-president of the Harris County Criminal Lawyers Association, maybe the best local criminal defense bar association in the nation.  So when a Houston lawyer, Brian Roberts, found that a post he wrote had been reposted without permission, JoAnne stood up for him, because that’s what honest lawyers do for other honest lawyers.

A lawyer stealing a post? Not exactly a new phenomenon. But there is a secondary phenomenon which takes a disgraceful situation and makes it worse.  There are two choices when a lawyer is caught red-handed stealing someone else’s posts. You can apologize for being a worthless scoundrel who lacks the capacity to write for herself, or you can be Mary Frances Prevost.

Well sure, lots of people who lack the minimal competence to produce writing of their own steal the efforts of others to slime the internet with other people’s thoughts. And even though it’s wrong with attribution to lift a post wholesale, the problem is compounded when the claim that there was attribution isn’t true either.  But then, Prevost’s history with plagiarism is nothing new. Continue reading →