When we were young, asset forfeiture was only used against evil drug kingpins, to take the profit out of crime, because we were pure at heart and would never tolerate an abuse of the vast power entrusted to us. 

–Paraphrased from a Washington Post op-ed John Yoder and Brad Cates

These aren’t two random lunatics, but two men in whom the United States of America reposed huge power to wreak havoc with the fundamental underpinnings of our legal system.  And they did.

John Yoder was director of the Justice Department’s Asset Forfeiture Office from 1983 to 1985. Brad Cates was the director of the office from 1985 to 1989.

I can still remember sitting in the judge’s chambers on my first asset forfeiture conference, the judge looking sternly at the AUSA and saying, “you know, the law abhors a forfeiture, right?” It’s unbearably quaint today. I suspect newer judges aren’t even familiar with the maxim, no less interested in uttering it.  And it’s all because of Yoder and Cates. Continue reading →

Lead paint. It was a far better paint than anything we have today. It stuck. It held. It was damn fine paint. But when it did come off the walls, and was eaten by children because it tasted sweet, it caused brain damage, loss of impulse control and a slew of other problems. In 1978, lead paint was banned from household use. In the scheme of things, brain damage was deemed far worse than paint that lacked durability.

At Hercules and the Umpire, Judge Richard Kopf raises a troubling problem based on Rick Nevin’s theory that the elimination of lead paint in the environment was a causal force in the decline of crimes rates.  The TL:dr explanation is that

Excessive lead exposure due to paint chips, car and truck fumes and otherwise can permanently drive down the IQ of a child and, at the same time, it can permanently reduce the child’s ability to control his impulses. Those twin harms tend to produce a criminal when the child grows up. Before lead reduction efforts by the government, crime rates rose, but after government lead reduction efforts, crime rates fell. That’s why you see reduction in crime rates for younger men, but no reduction, or even an increase, in crime rates for older men. Presumably, many of these older men have suffered the deleterious effect of excessive lead exposure when they were children, but the younger men have been spared.

This raised the question posed by Judge Kopf, and the one that is at issue here:  Assuming Nevin is correct, what does a judge do with this? Continue reading →

Because they’re not the entitled Slackoisie. Because they say so.

1. We play by our own rules.

2. We don’t take the first answer given to us.

3. We don’t care about getting into trouble.

4. We’re willing to work for nothing if it means being happy… Despite being in debt.

5. We know how to beat the system.

6. We’re always trying to change the game.

7. We have social media on our side. Continue reading →

Apple!  Yay!!!  iPhone!  Yay!!!  iOS8!  Yay!!!

Apple said Wednesday night that it is making it impossible for the company to turn over data from most iPhones or iPads to police — even when they have a search warrant — taking a hard new line as tech companies attempt to blunt allegations that they have too readily participated in government efforts to collect user information.

During the Lavabit fiasco, geeks explained with as much aplomb as they could muster how technology could solve government intrusion by making it impossible, with a few deft keystrokes, to get its nasty mitts on anything.  Ironically, nobody adores alphabet soup more than the government than geeks.  SQL? Cool.

Already, applause can be heard.  And Android will follow suit any moment now. Continue reading →

When Jason “J. Rock” Austin’s lawyer, Richard Kling, prepared for sentence, the charges for which the defendant stood convicted were for drug dealing.  But this is America, and he stood in a federal court, which opened Austin up to sentence for “related conduct,” an innocuous way of saying that the murders of Chicago Detective Robert Soto and Kathryn Romberg were also on the table.

When the State sought to prosecute Austin for the murders in 2008, the case fell apart.  He was arrested, and then released after witnesses against him recanted and claimed they were coerced into pointing at J. Rock.  But that case would have required a jury to be convinced of his guilt beyond a reasonable doubt.  This was a federal court in America, so it was no longer necessary.

Holding hands and crying softly in a packed federal courtroom, the victims’ relatives listened as U.S. District Judge Joan Lefkow found Austin accountable for the slayings while sentencing him to 35 years in prison on the drug charges.

“I do believe it is very likely you committed these murders,” Lefkow told Austin. “You destroyed two innocent lives…You deprived families of their loved ones, deprived children of their parents.”

Continue reading →

In the middle of the night, someone breaks into your home through the window.  What’s a guy to do? What’s a guy to do in Texas?

[T]he simpler explanation is that he was awakened by armed men breaking into his home and did what he thought he needed to do to defend himself. Especially since that’s exactly what these raids are designed to do: take you by surprise.

So Marvin Louis Guy fired.

Police Detective Charles “Chuck” Dinwiddie, 47, and Officer Odis Denton, 37, were shot as they and other officers served the narcotics search warrant just after 5:30 a.m. Friday at 1104 Circle M Dr. Apt. 3 in Killeen.

Dinwiddie died at 1:30 p.m. Sunday in the intensive care unit of Scott & White Hospital.

All the reasons that make perfect sense from the police point of view for executing a narcotics search warrant in the dark of the night, no-knock, no announce, no nothing except a SWAT team’s shock and awe, are the same reasons why the people in the house, awoken from sleep by armed men bursting in, shoot before asking “who’s there?” Continue reading →

Everton Wagstaffe went into custody in January, 1992. He was 23 years old.  And there he stayed, even after he was told to pack his bags and leave on parole.  From Jim Dwyer at the New York Times:

Everton Wagstaffe, who refused to leave prison on probation because he viewed it as a surrender of his claim of innocence in the death of a teenage girl, learned on Wednesday that he had prevailed in a struggle that he began from behind bars nearly 23 years ago.

Over the years, he has refused to accept release on any terms — such as parole or probation — that would imply he had something to do with the kidnapping and death of Jennifer Negron, a 16-year-old girl whose body was found on a street in the East New York section of Brooklyn on Jan. 1, 1992.

That was a principled decision.  Some would argue monumentally foolish, but principled.  Maybe, after spending 15 years in prison, engaging in what Dwyer describes as “guerilla legal battle” and “relentless campaign” to prove his innocence, he had no place left to go. His co-defendant, Reginald Connor, walked out after serving his 15 years. Continue reading →

The dog/probable cause connection is one of the most problematic pieces of legal mythology around.  As it’s a firmly embedded concept, and as the Supreme Court has consistently refused to recognize that it’s as much probable cause as a coin toss, there appears to be no argument of sufficient persuasiveness to end the terror of the dog hit.

Reason has put together another excellent video connecting the problematic dog sniff with the even more problematic investigative use of fingers in people’s anuses.

The courts often use the phrase “shock the conscience,” which is itself a peculiar test since the degree of outrage needed to shock varies markedly from person to person, and the question of conscience, how much disgust we can tolerate before we hit the wall, makes for a line that no one can see. Continue reading →

One of the cool trends of internet lawyers is to offer unbundled legal services.  Draft the complaint, for example, but then leave the client to pursue the prosecution of a case on their own.  For the most part, it’s never had anything to do with criminal defense, as our duty of effective assistance of counsel doesn’t make allowances for only performing bits and pieces of the job.

John Rappaport at Chicago Law School has written a provocative article suggesting that we too should join the unbundling game, though not quite in the same way as civil lawyers.

The notion that criminal defendants are put to an all-or-nothing choice between the guilty plea and full-blown jury trial is both pervasive and wrong. Defendants can, and sometimes do, “unbundle” their jury-trial rights and trade them piecemeal, consenting to streamlined trial procedures to reduce their sentencing exposure. This Article explores what happens if, once and for all, we eschew the all-or-nothing framework and actually encourage these “unbundled bargains.” The parties could then tailor court procedures by agreement. Defendants, for example, could bargain for sentencing leniency by consenting to a six-person jury. Or the parties could agree to submit a case to private arbitration. Would such a world be better or worse than the one we have now? This Article takes a first cut at this question, making the uneasy case that the benefits of unbundled bargaining plausibly outweigh the costs.

For as long as I’ve defended the accused, it’s been part of my explanation of the system that our options are limited to fight or flight; the defendant can plead guilty (with variations for cooperation or not) or fight the charges, from motions through trial.  Assuming that the prosecution isn’t dismissed or evidence isn’t suppressed, trial was the only choice left for the defendant who did not wish to plead guilty. Continue reading →

As president of FIRE, the Foundation for Individual Rights in Education, Greg Lukianoff is no stranger to the trends on campus as evidenced by UC Berkeley’s Chancellor Nicholas Dirks’ invitation to be “civil.”  Greg has written a 9,000 word “broadside” entitled Freedom From Speech.

Eugene Volokh has been kind enough to offer some excerpts:

The increased calls for sensitivity-based censorship represent the dark side of what are otherwise several positive developments for human civilization. As I will explain in the next section, I believe that we are not passing through some temporary phase in which an out-of-touch and hypersensitive elite attempts — and often fails — to impose its speech-restrictive norms on society. It’s worse than that: people all over the globe are coming to expect emotional and intellectual comfort as though it were a right. This is precisely what you would expect when you train a generation to believe that they have a right not to be offended. Eventually, they stop demanding freedom of speech and start demanding freedom from speech.

The phrase “sensitivity-based censorship” strikes home, as has become glaringly clear from the demand under the guise of the right to express one’s opinion to be free from disagreement because it hurts someone’s feelings. Continue reading →