Category Archives: Uncategorized

The Juice of Innocence

Orenthal James Simpson decided to join the world of Twitter and, despite amassing more than 600,000 followers, received pretty much the unsupportive reception one would expect. While some remain his fans, the vast majority of people despise him as the murderer of Nicole Brown and Ron Goldman.

He was, of course, acquitted of the murders. He was found liable in a subsequent civil trial for damages, and was later convicted of robbery in Nevada, for which he was sentenced to 33 years  imprisonment with parole eligibility after nine. He was released in 2017. But it’s not the robbery that inflames people against OJ; it’s the murders. The murders for which he was acquitted.

I could hear the dulcet whisper of my muse, Appellate Squawk, as I read comments about the loathsome and murderous OJ: But he was acquitted. He has never been found guilty of the murder of anyone, and yet here are people, lawyers, criminal defense lawyers, condemning him as a murderer. See the problem? Continue reading

Can “Racist” Be Defamatory?

A curious argument posed in reaction to Oberlin College’s smear of the Gibson family in furtherance of its blind social justice agenda is whether calling someone a “racist” is a matter of opinion or fact. If the former, then it cannot be defamatory. If the latter, then it can.

The hybrid argument is that the generic characterization of “racist” is an opinion, while the characterization of “racist” based upon a discrete factual scenario is not. Here, because the actions of Gibson’s Bakery in calling the police on a black Oberlin student for shoplifting directly led to students, with the facilitation and encouragement of faculty and administration, acting in concert, provided the express basis for the accusation of racism, the judge denied summary judgment and the jury found the “racist” accusation defamatory.

As with many other words, such as “rape,” “racist” has become untethered from its definition. It no longer is understood to be limited to racial animus, but has expanded to include lack of sufficient racial empathy. Even more, racism to a certain cohort can be manifested in failure to make it one’s primary concern, suffering consequences (such as theft) as a sacrifice to the marginalized. Continue reading

Short Take: Judge-Drunk

The Ohio Public Defender’s office seems unsympathetic to the plight of alcoholism, at least when the sufferer being shamed is Scioto County Common Pleas Court Judge William T. Marshall.

More than 2,700 cases overseen by a former common pleas judge could be reexamined after allegations that the judge came to work drunk and was possibly involved in a local sex trafficking ring in Portsmouth.

One would expect that such conduct would be recognized by someone in his courtroom and addressed by a supervising judge. But then, it’s not entirely unsurprising that no one noticed, as alcoholics can be quite adept at hiding their condition, and judges tend to be given wide latitude to be “odd” without getting taken to the woodshed for impropriety. Or, of course, there is the possibility that Judge Marshall might not have presided drunk and that’s just how he rolls. Continue reading

Heroes or Janitors, A Matter of Survival

A call from a lawyer with whom I was working on a case came in while I was on the phone with another lawyer. I told him I would have to call him back, the other call being about a criminal defense lawyer, a good person and good lawyer, having a breakdown. Later, when I called back, the first lawyer asked me an interesting question: why? Why did a lawyer who was in extremis, questioning whether he could face another day in the trenches, call me.

My answer was off-the-cuff, that people recognize me as an “honest broker,” that I won’t lie to them, give them some platitudinous tummy rubs about how they’re heroes of the cause and doing God’s work by defending the Constitution. We’ve all heard that tripe, even as the law students and baby lawyers repeat it back and forth because they’re young, naive and foolish.

But was that really why people would call an old curmudgeon, a lawyer who isn’t exactly know for being all touchy-feely, filled with empathy and inclined to gently rub their tummy with the soothing words that will make them feel that they haven’t squandered their life on a wasted delusion? Continue reading

But For Video: At Least The Baby Lived

It’s been a while since my “but for video” series graced this screen. It’s all been seen. It’s all been heard. The point has been made, that the conduct complained of forever before video became ubiquitous, the conduct cops and prosecutors argued was impossible and made no sense, the conduct that judges dismissed under the mantra, “why would they do such a thing?” happens.

Judges asked “why,” the question that only the person(s) doing it could answer, but that it happened was never in doubt. We just couldn’t prove it. They just didn’t buy it. And so it happened, again and again. For the pedants who will respond, “but it doesn’t always happen,” of course not. And that’s not what anyone is saying. But it does happen.

So why bring back “but for video”? Because this one strikes home. Unlike most, there is no horrifying death, no terrible beating. In terms of consequences, it’s particularly banal, and that’s very much the point. Video has been around for a while now, and the days of denying cops abusing their authority while maintaining the capacity to deny it happened, to weasel out of the allegations against them by rhetoric rather than reality, are long past. And yet, it still happens. Continue reading

Seaton: Sheriff Roy’s Personnel Problems

Sheriff Roy Templeton of Mud Lick, Alabama was not having a good week.

“Of all the stunts he’d try to pull during Pride month,” the Sheriff grumbled at a video playing on his computer screen. Templeton’s surly attitude was interrupted by a voice coming from his phone.

“Sheriff? Deputy Pitts is here like you wanted,” his secretary said through the speaker.

Templeton punched a button on his handset and barked, “Tell Deputy Pitts to get his ass in here.” Continue reading

Short Take: The Wrinkly World of Stephen Gillers

The floundering social justice organization known as the ABA, desperate to pretend that its model ethical rule 8.4(g) has been adopted by a state other than Vermont, writes that a second state, Maine, has adopted it after all those others rejected it. And except for the details that Maine substantially changed it so as to eliminate the ABA’s unduly passionate excesses that have driven away members in droves, it’s almost true.

But to its rescue appears NYU Law’s ethical maven, Stephen Gillers, who offers this deeply considered and heavily cited view:

The preposterous claim that the First Amendment entitles lawyers to make racist, sexist and homophobic statements in connection with law practice is an embarrassment.

Continue reading

Timothy Carpenter And The Magistrate’s Revolt

In the BT era, before every waking moment was spent obsessing over the hour’s idiocy from the White House, there was a quiet revolt taking place in the courthouse by a handful of United States Magistrate Judges challenging the government’s efforts to remain a few steps ahead of the law and technology. I dubbed it the Magistrate’s Revolt. Good times. Fond memories of when law was still something of interest.

It’s back. Well, not quite back, as in some critical mass of people focusing on the same government apparatus as flourished before Trump, but at least a a few finding it worthy of attention again. Most notably, the New York Times has shifted from its “All Trump, All the time” status to giving a little real estate to a substantive legal issue of monumental important and doubtful sexiness. It begins with the plight of poor Timothy Carpenter, as Cristian Farias describes, who won huge and will spend the rest of his life in prison.

Timothy Carpenter won’t be remembered for the circumstances that landed him in prison, but for the Supreme Court case that bears his name. Continue reading

Short Take: In Defense of Grievance Dogma

At Arc Digital,* Roderick Graham takes his best shot at defending the honor of what he calls “critical studies,” that strain of “scholarship” taken to task by the Sokal Squared hoax. Deep into his argument, he questions why non-academics, outsiders to critical studies, give a damn about whether it’s a legit field of scholarship.

Many who denounce critical studies are political grievers. Research identifying more instances of racism, sexism, homophobia, and so forth bear with them implications. At the least, it accuses whites, men, heterosexuals, and cisgendered people as a class — though not necessarily as individuals — as being in need of change. At the most, the research suggests adoption of policies that reduce racism, sexism, homophobia, and transphobia. People who benefit from the status quo, or who are otherwise opposed to changing it, are less inclined to explore its flaws.

Political grievers are usually outside of academia and other forms of knowledge production, and often have only a passing interest in the actual production of knowledge. Continue reading