In the days following the Texas Court of Criminal Appeals’ ruling that the state online solicitation of a minor statute was unconstitutional, there was an outpouring of appreciation toward Mark Bennett for his excellent work on the case. Whether he deserved it or not, he was called a “hero” for what he accomplished.

One of the most dangerous things in law is the belief that somehow, some way, the law will “right” itself because some White Knight will ride in to save us.  It’s the law’s version of the economics concept of the invisible hand, except what works in economics has no analogue in law.  As Bennett explained: Continue reading →

The saga (and it’s already reached saga status, even though it’s barely been around for two weeks at this point) of the 2d Circuit panel’s bizarre war with Judge Shira Scheindlin in the stop & frisk cases, Ligon and Floyd, continues to spiral out of control, as the judge and both plaintiffs have sought to undo the ruling.

But it’s not just the parties aggrieved who have been typing away.  Michael Cardozo, Corporation Counsel of the City of New York, who serves at the pleasure of Mayor Michael Bloomberg, lame ducks all, has a computer of his own and he’s not afraid to use it. Continue reading →

It started as just another day at Carlos Miller’s Photography is not a Crime blog.  A video of some police situation which ended up being a video of a fat cop trying to push around a kid with a video camera.

But they can’t do that!

But they did.

There are two things that can be done about some fat cop pushing around a kid, Jay Kelly, with a video camera. Continue reading →

There are many “stakeholders” in the criminal justice system, from criminal defense lawyers to the innocent who spent 25 years in prison awaiting the day someone would realize they didn’t belong there.  To the outside world, we look pretty much alike, we’re the outliers who care about the accused, the criminals and wrongfully convicted alike, and their constitutional rights.

You can tell which team we’re on because we use phrases like “constitutional rights” instead of technicalities.  So it’s fair to assume that when something big happens, we all take the same position, the same view of it, whether for better or worse.  Not always. Continue reading →

In 2010, the New York Court of Appeals held that as long as the police were justified in shooting the bad guy, they could shoot anybody else in the area as well. No, it wasn’t that they could do it for fun and profit, but the usual litany of excuses, accidents happen and, of course, they have to make “split-second decisions.”

In Johnson v. City of New York, a divided court upheld the “professional judgment rule”:

The professional judgment rule insulates a municipality from liability for its employees’ performance of their duties “`where the . . . conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions'” Continue reading →

Prelude: I’m reluctant to link to Jay O’Keeffe’s post.  Not because I don’t like the post. I do. Very much so, in fact. But it’s on the standard LexBlog platform, filled with marketing garbage (like his Avvo rating) that makes me cringe. 

It suggests that Jay’s purpose in writing is primarily to market himself and his firm, and it’s not my purpose to be complicit in his marketing, and that Jay lacks faith in his writing to be sufficiently worthwhile to cause any reader to seek him out.  Not that there is any reason for Jay to heed my advice rather than, say, Kevin O’Keefe’s, but I hope he does.  His post is excellent, funny, thoughtful and interesting, and it would be a waste for such a good post to be ignored because of the taint of banal self-promotion.  He should have more faith in himself. Continue reading →

Following the Texas Tornado’s spectacular win before the Texas Court of Criminal Appeals, Mark Bennett started receiving comments to his posts from folks who were convicted under a law that now wasn’t.  There were people sitting in prison for having violated Texas Penal Code Sec­tion 33.021(b), the online solicitation of a minor statute, and people who had completed their sentence yet remained under its thumb.

And Mark Bennett, hero of the new digital Alamo, made their nightmare come to an end. At least, that’s what they wanted to hear.  Even people from other states with other statutes wondered whether this ruling might save them. There would be prayers aplenty by teary-eyed mothers, hoping the magic would rub off and somehow touch their loved ones. Continue reading →

Picture a guy walking down the street. Every time this guy happens to spy a police officer, he screams out, “Cops are liars! Cops are scum. I hate cops!”  One might well question his sanity, as it’s rarely a good idea to go out of your way to antagonize a police officer.

But if that’s what the guy wants to do, it’s his right.  The First Amendment says he can express his views about cops whenever he wants, right?  Well, maybe.  Via the Associated Press:

A New Hampshire man told the state’s highest court Thursday that denying him a vanity license plate that reads “COPSLIE” violates his political free speech rights. Continue reading →

From the great north of the profession, Slaw, the legal magazine of Canada, invokes the truism, if at first you don’t succeed, try, try again.  Being an admirer of tenacity, though not necessarily persistence, it’s hard to challenge the old adage.  And yet I will.

The argument opens in a curious way:

“I know lawyers who are very innovative and lawyers with very traditional practices. The latter seem to make much more money,” says Noel Semple, a self-described “lapsed lawyer and aspiring professor.”

And there, in a nutshell, appear two of the biggest impediments to innovation in the legal field: Continue reading →

Ever wonder how to avoid being arrested?  Some would suggest that the answer is to not do anything wrong, but that’s an iffy proposition at best.  At Atlantic Cities, Mike Riggs relays the advice of former “FBI field agent, a SWAT sniper, an instructor at the FBI academy, and a Miami police officer who set Florida records for felony arrests” Dale Carson.

This is where things get, ahem, sticky:

Dale Carson is a defense attorney in Jacksonville, Florida, as well as an alumnus of the Miami-Dade Police Department and the FBI. So he knows a thing or two about how cops determine who to hassle, and what all of us can do to not be one of those people. Continue reading →