The days when it was socially acceptable for a male to try to seduce a female into a sexual liaison are long past. It ended with a campaign of “no means no,” such that a woman who responded with a clear “no” had fulfilled her part of the social interaction to communicate, clearly and decisively, that she did not consent to sexual contact.

Before those days, the social expectation was that a woman who wished not to be touched had to act to physically prevent the man from touching her.  He could try, and she could push back.  Even if she uttered words that made clear that she did not want to be touched, a physical manifestation was necessary.

After all, the male could try his damndest to convince her otherwise, even to the point of lying through his teeth.  That was the nature of “seduction” back then. It was an accepted part of the game played between a man who wanted to have sex and a woman who may or may not.  A woman might say no for a variety of reasons, from protecting her reputation to playing “hard to get,” when her “no” wasn’t really final.  Or maybe it was. How else would one know but to test her fortitude? Continue reading →

Via Doug Berman (who characterizes the post as “notable,” which always makes me chuckle), former lawyer and former prisoner Jay Berman argues that it should be part of the criminal defense lawyer’s duty to prepare his client for prison.

I was an attorney in Pennsylvania for over 30 years. I was also, more recently, a federal prisoner for almost five years. In 2007, I was charged with one count of mail fraud affecting a financial institution (Title 18 U.S.C. Section 1341). I pleaded guilty and served my sentence in five facilities of varying security classifications from June 2008 until April 2013. During the entire time I was incarcerated, I do not recall hearing of a single instance, my case included, where the defense lawyer provided any meaningful prison preparation or counseling for his or her client as part of the representation.

Berman, following a well-worn path, emerged from prison and decided to become a “prison consultant.”

Since completing his time as a federal inmate, he has participated in the production and business development of Prisonology, a Web-based educational program and a CLE course for lawyers whose clients face incarceration. He also authored and published a book titled “The Fall of the Firmest Pillar,” which is a memoir about his journey through the federal criminal justice system.

Continue reading →

That some crazies took over the administration building of the Malheur National Wildlife Refuge is a sideshow, having nothing to do with the sentences, and reversal and remand of those sentences, by the 9th Circuit in United States v. Hammond.  And none of the hoopla surrounding this craziness implicates the other sideshow, the racial divide in treatment by law enforcement. The signal to noise ratio surrounding the Hammonds’ case is off the charts, making it nearly impossible to focus on any particular salient issue.

And while each of these issues may be worthy of discussion, assuming anyone can focus sufficiently on one without devolving into the cesspool of craziness, the rationale of the 9th Circuit for reversing the sentence imposed by District of Oregon judge Michael Hogan is the sole issue this post will address.  Ken White does a “lawsplainer” at Popehat that addresses many of the other loose ends that seem to confuse people, and Patterico graciously provides much of the source material and an excellent overview.

After trial by jury, the two Hammonds, father and son, were convicted of two counts of arson each, under 18 U.S.C. § 844(f)(1).  Whether the conduct of the Hammonds was the sort of arson intended to be included within that section isn’t in issue, not because it cannot be questioned, but because the conduct falls within its parameters, and the jury convicted the Hammonds, who were acquitted of others, with some counts deadlocked. A deal was cut with the jury still out that the Hammonds wouldn’t appeal their conviction, would remain free on bond, the government would recommend a concurrent sentence for the arsons, and the remaining counts were dismissed. Continue reading →

Yale lawprof Jed Rubenfeld, with a couple of law students, proposes an alternative test to the “reasonable cop” metric for determining when a police officer should shoot.  His avowed purpose is both lofty and curious:

IN police shooting cases like that of 12-year-old Tamir Rice in Cleveland, grand jurors are typically asked to focus on one question: At the moment the officer fired, did he have reason to believe the person he shot posed a grave and imminent threat?

This question fails to consider whether alternatives to deadly force were available and how race might have affected the officer’s perception of the threat. Under the prevailing legal standard, those questions aren’t relevant. Until we make them relevant, American policing will continue to have a tragic excessive force problem and, specifically, a race problem.

The disparate impact view of police killing leaves little doubt that cops perceive blacks as more of a threat than whites.  Empirical studies back up the obvious. Continue reading →

Richard McGee got drunk, which occasionally happens with 3Ls, whether at Whittier Law School or elsewhere.  Richard McGee did something foolish when he was drunk, which often happens with guys who are drunk.  Richard McGee was shot and killed for it. That doesn’t often happen.

Jonathan Wade, who lives at the Residence at Canyon Gate, was hosting his friend the night of the shooting. He said his buddy wandered off and mistakenly knocked on the wrong door — a decision that would cost him his life.

Richard Rizal McGee, 31, died when he was shot by his friend’s neighbor at the apartment complex, near where Sahara Avenue and Fort Apache Road meet.

Police on the day of the shooting said the couple at 2200 Fort Apache Road, who Metro have not identified, feared for their lives as McGee pounded on their door just before 5 a.m. while screaming and yelling.

McGee’s screaming and pounding on the door at 5 a.m. must have been hugely annoying, especially to ordinary people who are asleep at home. His drunken night didn’t become their problem. But much as they might have thought to themselves, “I could kill this guy,” they instead decided to put their anger into practice. Continue reading →

Some words are burned into our psyche, but used for whatever purposes suit our secret feelings:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Well, yes. Of course. And these lofty words are sufficiently vague, easily misunderstood, as to justify our rejection of the laws of physics, the parameters of human nature, the limits of reality.  We take comfort in the certainty of the righteousness of our beliefs, and yet, things aren’t really working out terribly well as people demand their self-evident truths be accepted by everyone else, all of whom have self-evident truths of their own, which are often in conflict.

I awoke this morning to an email from Jordan Rushie, with the comment, “I’m not even shitting you.”  It included a link to a story about how a woman, “a feminist and atheist,” suffers from Post Traumatic Stress Disorder caused by “online harassment and Twitter trolls.” Continue reading →

The Guardian did something that embarrassed the FBI in 2015. It kept track of how many people were killed by police.

The FBI director, James Comey, said in October it was “embarrassing and ridiculous” that the government did not hold comprehensive statistics, and that it was “unacceptable” the Guardian and the Washington Post, which began publishing a database of fatal police shootings on 1 July, held better records.

While true, there is a fairly obvious reason why the government hadn’t bothered to keep track of such things. It fulfilled no internal need. Who was killed and why was a matter of concern for those looking in, not those whose job it was to explain to Congress why its budget was inadequate to win the War on Crime.  No good could come of it for the FBI, in particular, or law enforcement in general.  After all, it would provide fodder for those who don’t appreciate how hard, how dangerous, how critical, their job is.  Why give ammunition to your enemy? Continue reading →

The D.C. Circuit denied the petition for rehearing en banc, which would have put the court in the awkward position of reinforcing the extant law that allows a district court judge to increase a defendant’s sentence based upon conduct for which he was acquitted.  Crazy, right?

Bell exercised his constitutional right to a trial by jury on those charges, and the jury acquitted Bell of ten of the thirteen charges against him, “including all narcotics and racketeering conspiracy charges.” The jury convicted Bell of only three crack cocaine distribution charges that together added up to just 5 grams.

Because Bell had no significant criminal history and the amount of cocaine was relatively small, Bell’s Sentencing Guidelines range for the offense of conviction would have been 51 to 63 months. At sentencing, however, the district court found that Bell had engaged in the very cocaine conspiracy of which the jury had acquitted him, and sentenced Bell to 192 months in prison—a sentence that was over 300% above the top of the Guidelines range for the crimes of which he was actually convicted.

But the Supreme Court, not to mention the advisory sentencing guidelines, says this is cool. As long as the sentence doesn’t exceed the maximum possible sentence for the crime for which the defendant was convicted, no harm, no foul. Continue reading →

For quite a while, there were only a few voices willing to take the heat for calling out the efforts of our favorite censorious shrews, Miami lawprof (but non-lawyer) Mary Anne Franks and Maryland lawprof Danielle Citron, to promote anti-revenge porn crimes.  They shamelessly lied (as opposed to “were mistaken”) to the public about the First Amendment because they had a goal to achieve, and only by promoting ignorance could they hope to achieve the level of legal stupidity needed.

The claim was that their anti-revenge porn crimes did not violate the First Amendment. The claim was a flagrant lie, but they were law professors, supposed scholars, so who could question them?  Trench lawyers? We’re not scholars, after all, and when it comes to the people upon whom we rely for deep thought, don’t scholars win?

In the beginning, Franks claimed that Eugene Volokh supported her law, and agreed that it was not unconstitutional. That was a lie, and Franks quietly dropped Eugene’s name from her promotion as if she never said it. By avoiding confrontation with anyone who would challenge or question her, she was able to continue to deny her lies each time she was caught. Continue reading →

This marks the 7th year of the Best Criminal Law Blawg Post, and there was a very serious question of whether the crim law blawgosphere would have the legs to make it this far.  So many of the blawgs that existed when the contest began have since gone dormant that it seemed, at the time, that there would be little left from which to choose.

As it turns out, there is not only life remaining in the criminal law blawgosphere, but some damn fine writing out there, as reflected in the nominations (as well as some truly excellent criminal law blogs that, inexplicably, didn’t muster a nomination but are still doing great work).

The nominations reflect the diversity and depth of thought that exist in the criminal law blawgosphere.  Unlike the shallow, often trivial and almost invariably wrong content proffered by mainstream web media, lawyers are providing actual and accurate insight rather than pandering to the bias and ignorance of the public.  It’s good to know there is still hope for the public to be able to find substantive information, even as most of the web does whatever it has to do to make a buck off clicks at the expense of sound information. Continue reading →