The Supreme Court heard oral argument yesterday in Navarette v. California, a case that tests the limits of when a police officer can conduct an investigative stop  based upon an anonymous tip.  The facts of the case, via WaPo VC’s Orin Kerr, are straightforward.

A 911 caller reported that he had just been run off the road while going southbound on Highway 1 near a specific mile marker by a silver Ford F150 truck with California license plate number 8-David-94925.  Officers spotted the truck and pulled it over.  The question in the case is whether the officers had lawful authority to pull over the truck based on the tip.

Had the caller identified himself, there would be no issue. For whatever reason, he didn’t, yet the police responded to the call nonetheless.  The rule is similarly straightforward, that the cops can make a stop based on specific and articulable facts giving rise to reasonable suspicion that a person is engaged in a crime. Continue reading →

Hot off the presses:

Mr. Hull –

You should be happy to know that I took down your content that has caused so much consternation.  Again, I feel this got way out of hand from my perspective.  Frankly, I was shocked when I read the blog post for the first time this past Saturday, and even more shocked at the continued posting by the owner of blog.simplejustice.us again, this time in regards to the message I sent directly to you.  I tried to write you as quick as possible, because it seemed everyone on the internet had negative things to say when I didn’t respond immediately.  So I did so on my way to court, again on my i-Phone, but later was commented upon, and lied about, when saying I was doing so while I also driving my car (my assistant drove me to court today which gave me time to write, although it is hard to do so in a grammatical fashion from just an iPhone). Continue reading →

The announcement yesterday came as a shock.  Eugene Volokh explained that his blawg, The Volokh Conspiracy, has “partnered” with the Washington Post.  Some took the news with a quiet, abiding shrug.  VC was primarily a libertarian quasi-conservative lawprof blog, often mired in Federalist politics which produced some fascinating discussions in the comments.

Indeed, if there was one aspect of VC that I found most important, it was the nature of the reader comments. VC was the gold standard for blog comments in the early years, having the most well-developed and thoughtful commentary in the blawgosphere.  Unlike other lawprof blogs, its readers tended to span the spectrum, and their comments covered the practical as well as the theoretical.  In the past few years, they’ve gone the way of the rest of us, with the loony edging out the thoughtful. Continue reading →

At the newly formed, and desperately needed, National Association for Public Defense website (at publicdefenders.us, which you should bookmark and support), my pal, Dr. Sunwolf, has posted a truly remarkable explanation of one of the most vexing aspects of trial work, persuading the predictably irrational juror.

As might be expected. Sunwolf starts out with the only reasonable premise: that jurors are not predisposed to believe the defense rather than the prosecution.

It turns out that presenting actual facts to a jury, or even challenging various facts presented by the prosecution, are not enough to actually persuade. Who knew? There are three realities of any juror’s mind that block persuasion when they are not taken into account. First, jurors (like all of us) start out with mental anchor points—beliefs, experiences, attitudes, or opinions that have a strong hold on them. Second, jurors (and the rest of us) Continue reading →

Dan Hull, being the very sensitive guy he is, tried one last time to get Dallas’ tough guy baby lawyer, Carl David Ceder, to remove Hull’s stolen content that remains on Ceder’s website.

Twice thus far, Carl David flailed blindly in an effort to salvage his dignity. Inquiring minds wondered if he would go for three.  And now, Carl David’s reply to Hull, unchanged from its original format:

From: “[email protected]”
Date: January 21, 2014 at 7:19:35 AM PST<
To: “[email protected]”
Subject: Re: Informal Take Down Request: “12 Rules for Client Service” Continue reading →

Some people in Columbia, Missouri, were unhappy to see a grand, old house denuded of its grand, old trees, and so they made a bit of a fuss about it.

“Can you do a story about the owner who cut down all the old trees and created a wasteland in his front yard?” Sarah Grim asked. “I cannot drive on Stewart now, as it is too awful to see.” Continue reading →

While most lawyers spend their non-case-related writing and thinking time on legal issues, there is a surprising number of academics who concern themselves with happiness.  Sometimes it’s the happiness of our clients, for whom they blame us for our failure to deliver therapeutic justice because we’re so busy being adversarial:

The crux of the problem is this: what do lawyers practicing in accordance with the prescriptions of therapeutic jurisprudence, comprehensive law, or comprehensive justice do when a client’s actual best interests are at odds with what traditional adversarial legal representation assumes?

After all, shouldn’t we be more attuned to an academic’s view of our clients’ “actual best interest” than winning their case? Continue reading →

On August 28, 1963, the Rev. Dr. Martin Luther King, Jr., gave his iconic “I have a dream” speech in front of the Lincoln Memorial. It included these oft-repeated words:

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.

While it’s easy to see the color of skin, it’s hard to see the content of character.  Things have improved somewhat, with a president whose skin color is darker than that of white Americans, with dark-skinned men and women on television and in academia.  Things haven’t changed all that much, with black kids stopped on the street by the millions and presumed to be thieves in the finest stores. Continue reading →

The saga of Crystal Cox continues for the time being, as the 9th Circuit correctly rules that Judge Marco Hernandez neglected to include neglect in his instruction to the jury.  Ken White at Popehat has graciously provided a remarkably thorough post about the saga to date, including footnotes and an appendix of the many federal suits she has sought to commence against the better part of humanity.

And Ken makes the only salient point to be made of this otherwise hot mess: that a robust First Amendment can withstand the rantings of one more crazy while providing the protections that would apply to everyone else.  And that means bloggers, but it also means anyone and everyone else who chooses to express themselves publicly. Continue reading →

One of the great joys of sitting on an appellate bench is that one is never compelled to accept as fact things that were hashed out at enormous length and effort before the trial court.  As Appellate Squawk likes to point out, facts are for kids. But a wave of reality swept over the Second Circuit, compelling them to do the unthinkable: reject the government’s allegations as “unreasonable.”

In United States v. Clark, the defendant, following some drinking at Gonzo’s Bar in Lockport, New York (I swear I didn’t make up the name of the bar), was arrested for being in the vicinity after a fight occurred. He was arrested, searched and placed in the back seat of a police cruiser. His hands were cuffed behind his back.  He was left alone in the back seat for five to ten minutes, then taken out of the cruiser after a one-minute ride to the police station. Continue reading →