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Mr. Cuomo, Tear Down That Wall

In the remake of President Ronald Reagan’s famous demand to Mikhail Gorbachev, read with the precision that only a trained actor could achieve, Andrew Cuomo  began his administration as Governor of New York.



In his first act as governor, Andrew Cuomo Saturday symbolically moved toward his promise to open up government to the people.


Crews were busy at work removing concrete barriers erected in front of the state Capitol under then Gov. George Pataki following the Sept. 11, 2001 terrorist attacks.


 He was also preparing to open up the historic Hall of Governors that houses his suite of offices as well as portraits of past governors.


Dubbed “Fort Pataki,” the wing was sealed off from the public early in Pataki’s tenure.


This morning, the doors were open and the security desk moved to the side.


Like you, I’m a huge fan of symbolic gestures, particularly ones that bring the powerful closer to the rest of us.  Of course, Governor George Pataki’s concern that he would be a target of terrorists, who would squander their efforts on bringing Albany to its knees, might be seen as a bit overwrought nearly a decade later.  

The concrete barriers that protected him from the common folk have long since been paid for, and Cuomo, scion of Mario, a governor who knew how to keep the people happy at arm’s length with only a look, knows that some changes are needed.  After all, the last anointed governor, Spitzer, didn’t do too well.

In all fairness, New York State thrived under Mario Cuomo, the personification of the old saw, “I love mankind; it’s people I can’t stand.” 

Our new Governor has a decade of legislation and policies borne of fear, the decade of “better safe than sorry” that excused overreaching across the criminal justice system.  The concrete barriers and closed off corridors of power are very much symbols of what became of the State of New York.

The question now is whether this symbolic gesture reflects a change in how the Governor of the State of New York plans to do business, or is merely a gesture.  As I did when Eliot Spitzer assumed office, I wish Andrew Cuomo both the luck and fortitude to bring the legal system of New York back to its historic position of leadership and courage, an example of how a government can function by protecting the civil rights and individual freedoms of its citizens.

Thank you, Andrew Cuomo, for tearing down that wall.  But it’s only the first step.  I hope you inherited the strength of your father, even though Chris got the good looks.

If you need any help, let me know.

H/T Turk

Pick 2: Quick, Cheap or Fair

Disorderly conduct, the catch-all offense for all manner of human activity that annoys police, was getting out of hand in Washington, D.C.  After all, it’s a city filled with hostile, antagonistic, belligerent nutjobs, even when Congress isn’t in session.  The cops were overwhelmed.

A plan was needed to take the burden of trivial matters off the police and courts, while allowing the cops to maintain order.  They came up with one that worked spectacularly well, until now.  After the cops hauled you in for a dis con, all you had to do was pull $35 out of your pocket and you’re on your way. No muss. No fuss.

Until some lawyer (isn’t it always a lawyer?) took issue with the scheme and  sued  for $1.2 million (plus $700k for his wife).  Now there’s fuss, largely because this isn’t  some slippery lawyer trying to make a quick buck.


You might be rolling your eyes at this point at the idea of a lawyer kicking up that kind of a fuss over a $35 fee; this is the town that brought us the Infamous Pants Lawsuit, after all. But when I read the LT item, the lawyer’s name, Hamilton P. Fox III, sounded familiar, so I did what any self-respecting web writer would do: I Googled.


Hamilton Fox was an assistant prosecutor on the Watergate Special Prosecution Force. He was an investigator on the House Committee on Standards of Official Conduct in the 1983 Congressional page scandal. He was a defense attorney on appeal for Jonathan Pollard, the naval intelligence employee convicted of spying for Israel. My point is: this guy actually DOES have better things to do than sue the District over $35.


Isn’t it curious how some people can’t seem to stay away from scandal?  Fox took issue with a procedure called “post & forfeit,” an ingenuous little plan to cut out the middleman.


It’s sort of an abbreviation of usual procedure: Ordinarily, if you’re arrested, you can be released “on citation,” which just means you get a piece of paper telling you when to report for court; or you have to post some kind of collateral against your appearance at some future court date in the form of bail or bond. You either show up for court and get your money back, or you don’t, and you forfeit the money, along with any other consequences the court may impose for blowing it off.

If you get arrested for a trivial offense and the police decide they’d rather not deal with sending you to court, they can offer you another option. The officer hands you a form, tells you how much money you need to post-and-forfeit, and you can go home, directly from the station. You pay something that looks like bail, forfeit it in a way that keeps you out of court (or a real jail cell), but without the actual legal nicety of having the option to go to court and argue your case before a judge.

You gotta admit, it’s cheap and quick, though the cash pay out ranges rom $25 to $1000, the high end perhaps stretching a bit.  Still, certainly better than having to sit around in a jail cell awaiting arraignment.  Maybe even better than paying bail and being required to return to court, where you end up with a quickie plea for some silly conduct that disturbed a cop, and being fined anyway.  For many people, they would much prefer this option over the routine.

That doesn’t mean it’s without problems, however.  First, what if you didn’t engage in disorderly conduct, and aren’t in the mood to be railroaded because your conduct was perfectly lawful, like contempt of cop, and you’re not inclined to let the cop get away with it?  Your choice is to refuse the “post & forfeit” option and cool you heels in lockup until you’re arraigned.  Not a pleasant option, which means that a lot of folks who might otherwise fight the charge and say mean things about the police find themselves inclined to buy their way out rather than fight the good fight.

The second problem is more insidious, that it serves as an incentive for cops to arrest anybody they want, regardless of basis, knowing that no one will ever scrutinize or challenge their actions in court.  Sweep up a few hundred people who just won’t listen, then collect some cash and everybody’s happy.  The groundlings learned their lesson, the City made some money, and the judges aren’t bothered with any of it.  It’s win, win, win, provided you have blind faith in the police to never abuse their power and use it for less than savory purposes.

Though not quite a splashy sort of scheme, this “post & forfeit” plan can affect huge numbers of individuals with a fundamentally improper, and unconstitutional, deprivation of the ability to challenge their arrests.  The flagrantly coercive nature of the scheme, trading off the right to challenge for a night in jail, strikes just the right balance to make any reasonable person walk away from his rights.  It really is quite the brilliant scheme, but for its inherent impropriety.

Of course, if the cops issued citations, what we in New York call a desk appearance ticket, it would mean that all those naughty people would end up clogging the courts and being a terrible burden on judges.  Bummer. 

That would mean that judges would be compelled to do what they’re paid to do, adjudicate the propriety of arrests and charges, or, in the hopeful alternative, toss the cases of people whose only crime is pissing off police and hold the police up for public ridicule for their abuse of power. 

As for the moral of the story, it’s one thing to screw with a lawyer, but  don’t make his wife (or her husband) cry.

Best Criminal Law Blawg Post of 2010

Despite the resounding success of the first annual Best Criminal Law Blawg Post, the second blew it away.  The swarms of locusts that seek to devour the blawgosphere failed to make 2010 the year that the criminal law blawgs were reduced to an intellectual wasteland.  We survived.  Against all odds, we thrived.

The quality and diversity of the offerings made the selection of a best blawg post extremely difficult, nearly impossible.  It was akin to comparing apples and carburetors, a task that can’t really be accomplished.  For that reason, I would be remiss in not recognizing some of the great achievements along the way.

First, this post by Sam Morrison at the  LA Times blog about “the deep-seated institutional bias of the Justice Department against the exercise of executive clemency,” is startling and one of those must-read posts.  Then there’s the post by the Military Underdog, Eric Mayer, on the fragility of attaining the right outcome.

Jeff Gamso, whose posts are never drivel, drove home the hypocrisy within our own ranks, while Norm Pattis, in a very imaginative series, told of Gerry Darrow, the trench lawyer who never was, breaking the glass ceiling of power.  Striking a similar chord was  Matt Brown’s realization of how power rests in the hands of the ignorant.

Walter Reaves’ painful memories of the execution of the innocent Todd Willingham, as was  Public Defender Revolution’s Carol opening her own wounds.  Then there is the unempathetic work of empathetic lawyering, as  Mark Bennett and  Brian Tannebaum consistently provide, and with which  Rick Horowitz struggles.

There are a wealth of criminal defense lawyers who offer their time and thoughts both to broaden our collective knowledge base, from the more banal aspects of our work in the trenches to the broader philosophical issues that leave us year after year wondering how and why we strap on our briefcases to try to defend the accused for one more day.

It goes without saying that there are blogs that seek nothing more than to capture the search of the latest drunk driving defendant, or offer explanations, counsel, views that are seriously misguided, sometimes dangerously so.  These use of words can serve to enlighten, or mislead and confuse, and it is the duty of lawyers, particularly in our niche of the profession, to not allow others to walk away from the blawgosphere stupider than when they arrived.

The best of the blawgosphere does that; it both raises our wisdom and dispels the foolishness.  It’s not acceptable to play on the ignorance or emotions of the very people who need us for one’s self-interest or aggrandizement, and I salute the excellent work of the criminal law blawgosphere for the not always pleasant work of keeping our corner a better place.

Yet, one post stands out among all the others, and they are great others, to be the Best Criminal Law Blawg Post of 2010.  The winner of the second annual award is a not-as-young-as-he-used-to-be Public Defender, who oddly is seen in the mind’s eye of almost everyone across the blawgosphere as an old white man wearing less than fashionable glasses.  And he likes it that way.

The Best Criminal Law Blawg Post of 2010 goes to Gideon at A Public Defender for Life Without Possibility of Redemption, combining almost every aspect of what lawyers in the criminal law blawgosphere have to offer.  Substance, passion, the banal aspect of our work implicating deep philosophical roots, integrity and brutal, clear honesty.

Gideon has been at the foundation of the criminal law blawgosphere for a long time, before I arrived, and has never wavered in his commitment to making every person who reads his words better for having spent the time.  This year’s award couldn’t go to a more deserving blawger, and I’m honored to count myself among Gideon’s readers and admirers.

Gid, this badge (from the fingertips of Amy Derby) goes to you:

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(Sticky) Nominations Open for 2nd Annual Best Criminal Law Blawg Post

When this happened last year, I had no idea whether it would be great or a complete bust.  As it happened, the response was spectacular and gave everybody an opportunity to offer their best and everybody else a chance to read it if they somehow missed it. 

Last year’s winner was Jeff Gamso.  For all you newbies who think that there are too many entrenched blawgs and you can’t break in, Gamso was a newbie last year and blew everybody away.

So here’s the deal:

Anybody can “nominate” a post for the honor, including their own.  SJ posts are off limits.  You can nominate them anonymously, with great fanfare, just by name or with a detailed explanation of why you think a post is the best.  It can be a post from a criminal defense lawyer, a prosecutor or a non-lawyer, provided it’s subject is criminal law.  It can even be a post by a lawprof. You can nominate as many posts as you like.

For this contest, and for this contest only, I will allow links to be included in comments to the posts (not just the blawgs, but the actual posts) nominated.  Spam links will be deleted.

This is a chance to think back over the year and give everyone some great posts to read, to ponder, to discuss and maybe even change some minds.
And just to be clear, it doesn’t matter if you’re brand-spanking new or an old hand, a dear friend or a complete unknown.  This is all about substance, not popularity, tribes, networking, branding or bonding.  If I smell anyone trying to use this as a marketing opportunity, they’re out of here.  Spam = banned.

I invite anyone and everyone to offer the best the blawgosphere has in criminal law.  Spread the word, and let others know that this is their opportunity to show their stuff, get a backlink, and let the rest of the blawgosphere know what they’re doing.  

Nothing posted at Simple Justice is eligible. The winner will be announced on New Years Day.

Judging will be entirely on my shoulders, and I will be as arbitrary and capricious as I please, so there’s no complaining about the choice.  That said, I will do my best to select the blawg post that best reflects our finest work, our highest tradition, our deepest thoughts and our best purpose in putting words on a computer screen.  For anyone who doesn’t trust me to be fair, find a better offer elsewhere. 

Best of luck and I look forward to seeing some great stuff.

Update:  A couple of additional thoughts.  First, blawgers should feel free to nominate themselves, which is particularly important for those who may not yet have the recognition they deserve and provides a good way to get your best stuff out there for others to see.

Second, the “Best” is generally considered to refer to quality over quantity.  While there is no limit placed on the number of posts nominated, offering, oh, say 14 posts suggests that the concept of “Best” may be a bit muddled, which is not likely a good reflection on the purposes of the nominator.

Raise Your Glass to the New Year

My plan tonight is to remain true to my New Years Eve tradition.  I’ll be fast asleep by 10 p.m.  Your plans may differ.  If they do, and if they involve a glass of champagne (or some other libation with the potential to enliven your evening), you should be concerned about driving home.

The nature of such concerns vary. Don’t drive drunk. You don’t want to harm anyone.  You don’t want to be arrested.  You don’t want a couple of police officers drawing your blood on the side of the road.  But not driving drunk may fall short of saving you from any of these potential dangers.

Via Charles Platt at the Legal Satyricon, California DUI lawyer  Lawrence Taylor offers the text of a speech he’s developed and given over the years.  Having specialized in DUI defense since 1979, he’s had the opportunity to live through the development of the law, and it shows. 

The speech, The DUI Exception to the Constitution, is long, detailed and thorough.  My practice has never included DUI/DWI defense, and I defer to those far more familiar than me, but his description comports with my memory of how the law, and policy, developed over the years, and how drunk driving went from a hard offense, one based on actual conduct of drivers, to an absolutist offense, divorced from any particular danger, proven despite known scientific failure and devoid of the constitutional protections otherwise afforded.

Here’s a bit to whet your whistle.


I would like you to imagine for a moment that you’ve gone to a friend’s house for dinner. In the course of a very good dinner you’ve had a couple of glasses of a good Merlot [Edit. Note: ?] and it is now time to drive home. I would like you to imagine that you are on your way home — and, I will tell you, by the way, that two glasses of wine will not, in any state, put you under the influence of alcohol or over the legal limit of .08. As you are driving along the highway, you see ahead of you some flashing lights and barricades and police cars cordoned across the highway, with flashing lights directing you into an increasingly small channel. And, as you go in, you are stopped and two police officers approach you and stick a flashlight in your face and say, “Breath on me. Have you been drinking tonight? Please step out of the car.”


Some of you say, “Well, that can’t happen in the United States. We have the Fourth Amendment to the Constitution, which says police officers have to have probable cause to stop you.”


Of course, we know better.  Read it all.  It’s excellent.  And get home safe tonight, no matter what your plans.

Happy New Year!

Floyd Abrams: Enema of the State*

There was  fair debate about the propriety of Julian Assange’s Wikileaks disclosure of classified documents, but one man was clearly supportive:  Daniel Ellsberg.  You remember him, of the Pentagon Papers fame?  Back in the days when Apple was a record** label?

Like Assange, Ellsberg was called an enemy of the state for revealing classified document to the New York Times, revealing to the American public the truth behind the United State’s involvement in Vietnam.  While no tangential and ridiculous claims of unprotected sex emerged from Scandinavia, Ellsberg was nonetheless the target of government unpleasantness, as was the Times for doing the unthinkable: publishing the Pentagon Papers.

On this case, now-heralded First Amendment lawyer Floyd Abrams made his bones.  But the one-time firebrand, Cahill Gordon partner, says that was then and this is now.  In an op-ed in the Wall Street Journal , Abrams says Assange is no Ellsberg.



The Pentagon Papers revelations dealt with a discrete topic, the ever-increasing level of duplicity of our leaders over a score of years in increasing the nation’s involvement in Vietnam while denying it. It revealed official wrongdoing or, at the least, a pervasive lack of candor by the government to its people.


WikiLeaks is different. It revels in the revelation of “secrets” simply because they are secret. It assaults the very notion of diplomacy that is not presented live on C-Span. It has sometimes served the public by its revelations but it also offers, at considerable potential price, a vast amount of material that discloses no abuses of power at all.

Floyd goes on to note why his critical distinction is, well, critical.



Mr. Assange is no boon to American journalists. His activities have already doomed proposed federal shield-law legislation protecting journalists’ use of confidential sources in the just-adjourned Congress. An indictment of him could be followed by the judicial articulation of far more speech-limiting legal principles than currently exist with respect to even the most responsible reporting about both diplomacy and defense. If he is not charged or is acquitted of whatever charges may be made, that may well lead to the adoption of new and dangerously restrictive legislation. In more than one way, Mr. Assange may yet have much to answer for.

This criticism is fairly common among people who are generally on the same side of an issue, where the challenge is whether change should come by evolution or revolution, whether the strategy of one conforms to the expectations of another, whether one has “gone too far” and damaged the progress made, setting back the cause.  We see it in everything from issues of racial equality to the right to keep and bear arms.

Jack Shafer in  Slate says Floyd “whizzed” in his attack on Assange.



Oddly, for all the condemnation that Abrams slings Assange’s way, he doesn’t pinpoint any lasting “damage” to diplomacy done by the leaked cables and the news reports based on them. Struggling to find something bad to say about Assange, he quotes historian Sean Wilentz of Princeton, who described WikiLeaks as being rooted in a “simpleminded idea of secrecy and transparency” and said it is “simply offended by any actions that are cloaked.”

Shafer suggests that Floyd’s dislike of Assange is less conceptual than personal.



What’s the true source of Abrams’ wrath? It’s not the leaking that bothers him—Lord knows he’s defended leakers aplenty in his career. And it’s not the subject matter of the cables, which even he must concede has yet to start World War III. What starches his shorts is the scale of the WikiLeaks leaks, which violate his sense of tidiness. I also suspect that he worries about Assange and Assange-ites disrupting the control over news that his legal clients have long enjoyed.

When the outsiders come in from the cold, and start enjoying the fruits of their one-time fight, there’s a tendency to conclude that the boat’s been rocked enough.  They grow complacent, even defensive, about any further boat-rocking that could topple the gains made, the circumstances they’ve come to enjoy. 

Floyd Abrams is a senior partner at a big law firm, and represents old media.  Wikileaks isn’t his client, not that Assange could afford his hourly fees with the half-dozen kids who carry his bags and fetch him coffee, and the interests of Wikileaks don’t line up particularly well with the interests of the New York Times these days.  Whether his antagonism toward Assange is more a product of his sensibilities or the concern that its revolutionary approach will leave his clients’ more pressing concerns, such as the reporter shield law, can’t be discerned from the op-ed.  Sometimes, lawyers mask their personal feelings behind the arguments that best serve their clients.

While it’s true that the concept of Wikileaks may be simplistic in its absolutist approach, and definitely “untidy” in its lack of nuanced strategy for smaller, more discrete gains in the war on governmental secrecy, it’s also not up to Floyd Abrams, or even the New York Times, to dictate how the battle over governmental secrecy will be fought. 

Wikileaks opened Pandora’s box, even though Floyd Abrams would have preferred the free speech fight to proceed in an orderly fashion.  The argument that Assange may have set the cause back may be true, or may not.  If we could predict the future, there are plenty of fights that could be handled better.  But the cause of transparency is bigger than Floyd, bigger even than the New York Times.  Maybe it’s even bigger than Julian Assange, that untidy, condom-challenged simpleton.

But now that Pandora’s box has been opened, there’s little benefit to the fighters for free speech to gripe about it and criticize Assange for having gone and screwed up their sweet deal.  The fight is happening, whether Floyd Abrams likes it or not.  The only choice left to him is which side he’ll be on. 

From the content of his op-ed, not to mention his choice of newspapers as a medium for dissemination, it appears that the former hero of free speech has no plans on giving up his corner office.
__________

* The title of this post was taken from a  phrase coined by the Trial Warrior, Antonin Pribetic.

** Record: a vinyl disc with grooves that was placed on a record player with a stylus set into the grooves, causing it to emit sound.  See also “LP.”

For A Kidney I Will

The story of the Scott Sisters, Gladys and Jamie, was a shining example of excess. For leading two men into an $11 robbery, the two sisters were sentenced to life in prison.  Sixteen years gone by and Mississippi Governor Haley Barbour has put an end to their imprisonment.  But not without a twist.

From the Washington Post :



Barbour said he decided to suspend the sentences in light of the poor health of 38-year-old Jamie Scott, who requires regular dialysis. The governor asserted that 36-year-old Gladys Scott’s release is contingent on her giving a kidney to her inmate sibling.


“The Mississippi Department of Corrections believes the sisters no longer pose a threat to society,” Barbour said in a statement. “Their incarceration is no longer necessary for public safety or rehabilitation, and Jamie Scott’s medical condition creates a substantial cost to the State of Mississippi.”

To be fair, the application for clemency offered Jamie’s kidney for her sister, a natural act of kindness between siblings.  And Barbour took her up on it , providing:

“Gladys Scott’s release is conditioned on her donating one of her kidneys to her sister, a procedure which should be scheduled with urgency.”

As noted at Sentencing Law & Policy, executive clemency, while generally an act of sovereign mercy above the limits of the law, is still subject to some constitutional limitations.  For example, what if clemency was granted contingent on the prisoner becoming the executive’s personal sex slave?  What if the applicant offered to be the executive’s sex slave in exchange for commutation?  What if the applicant offered his minor daughter as sex slave in exchange?  It gets worse from here.

It’s unlikely that this situation will end up being a problem due to the combination of Gladys Scott having offered her kidney in the application together with the natural inclination of one sibling to donate an organ to help another.  It would be fair to assume that Gladys would give Jamie her kidney regardless of whether it was an express requirement of clemency.

Yet the case does test the limits, both of the constitutionality of conditions imposed on clemency, as well as bioethics.

Even though Gladys Scott proposed the idea in her petition for an early release and volunteered to donate the organ, [director of the Center for Bioethics at the University of Pennsylvania, Arthur] Caplan said, it is against the law to buy and sell organs or to force people to give one up. “When you volunteer to give a kidney, you’re usually free and clear to change your mind right up to the last minute,” he said. “When you put a condition on it that you could go back to prison, that’s a pretty powerful incentive.”

From the biomedical perspective, can the offer of a kidney ever be considered volitional, an act of free and unfettered choice, once it’s the quid pro quo for release?

Consider what would/could/should happen if a prisoner offered his kidney to the governor’s dying daughter in exchange for release.  It’s not really a far-fetched notion, and it’s not like the prisoner doesn’t have another kidney.

What complicates this act of mercy (or mercenary, if the cost of keeping Jamie alive was more important to Barbour than the monumentally harsh sentence of life in prison for an $11 robbery) is that the grant expressly requires the kidney transplant.  If it was offered, even expected, but not incorporated as a requirement, there would be no issue when Gladys gives her kidney to her sister.  But now, it’s a specific requirement. What if Gladys changes her mind?  Do the Scott Sisters go back to prison to serve out the remainder of their lives?  It would appear so.

From the results perspective, it’s a wonderful thing that Gladys and Jamie Scott’s sentencing nightmare is over, a return of proportionality to a system run amok.  That there’s a kidney involved, between sisters, won’t generate another round of outrage.

And yet this result will always be tainted by the price of a kidney.  Rather than remedying an injustice, a ridiculously excessive sentence long believed to be a reflection of racism against the Scott Sisters, this could be the start of a market in prisoner organs in exchange for freedom.  Or worse.

The Future of the Blawgosphere (Updated Pic!)

The past year has been a mixed bag for the criminal law blawgosphere.  Aside from the crap and crass marketing, the lunatic fringe and the pseudonymous narcissists begging everyone to look at them, there have been some truly exceptional work by young lawyers that demand recognition.


Eric L. Mayer, whose niche within a niche is the defense of members of the armed forces, has a blawg called Military Underdog.

Matt Brown, who along with partner Adrian Little, divides his time between  riding motorcycles across America and writing his blawg, Chandler Criminal Defense, about the travails of starting a criminal defense practice in Chandler, Arizona, straight out of law school.

Both Eric and Matt offer exceptional, even brilliant, writing that has the depth, thoughtfulness and understanding that commands and deserves the attention of criminal defense lawyers everywhere.  These guys are trying to feel their way through difficult times in the practice of law, but do so with integrity, humor and insight far beyond their years.
 
I don’t miss a post by either of these two men.  They are both on my blawgroll.  They are both on my RSS feed.  They are both writers whose words invariably impress me, make me think and make me laugh.  They are both the sort of lawyers I hope to find bringing up the rear, the future of the profession.  These are the guys who do us proud.

While both Eric and Matt have been mentioned and linked here before, and will certainly be so again, it struck me (especially after reading  Marco Randazza’s post making some hoopla on additions to his blogroll) that the mere linking and occasional mention were insufficient to attract the attention of people who should know about these guys.  Neither is on the Legal Satyricon’s blogroll.  Both should be.  If they aren’t on yours, or your RSS feed, or just your daily stroll through the blawgosphere, then mend your ways. 

So let me state this as clearly as possible:  Read everything written by Eric and Matt.  Read the  Military Underdog and Chandler Criminal Defense.  Just do it.

Put On Your Big Boy Robe, Judge Kennedy

Rarely do I use epithets in my posts.  It’s not because I don’t know them, or that they make my eyes burn.  It’s that they are unnecessary to make the point.  That is, unless the point is about the use of an epithet.  And so, this post is about a defendant who said to Judge Henry Kennedy, Jr., following his sentence, “Fuck, y’all.”

Some suppose that judges in federal courthouses have tender ears.  Perhaps that’s true, as they live insulated lives where people don’t say such things to them.  But they weren’t always judges, and there stands a decent likelihood that they’ve heard such foul language before.  That a person being sentenced reacts, well, poorly to the decision shouldn’t come as a complete shock.  That a person being sentenced uses foul language to express himself similarly shouldn’t surprise.

Did he fail to show you the respect the robe demands?  Yes.  It’s true that this was disrespectful.  It was also pretty foolish, but then, people being sentenced are often the same people who do foolish things.  Laugh at it. You already sentenced him.  The business of the court was concluded.  Justice, as determined by you, Judge Kennedy, was done.  Be a big judge.  The outburst caused you no harm.

Still, you held the defendant in contempt and summarily sentenced him to an additional year, reduced on appeal to six months, to be served on the back end of his 29 year sentence. Oh, you showed him who has the power.

Judge Karen LeCraft Henderson of the D.C. Circuit must also have tender ears, for she wrote for the majority  affirming the imposition of an additional 6 months for contempt.


A federal court is empowered to punish criminal contempt by fine or imprisonment. 18 U.S.C. § 401. Criminal contempt includes “[m]isbehavior of any person in its presence or so near thereto as to obstruct the administration of justice.” Id. § 401(1); see also Fed. R. Crim. P. 42(b) (“Notwithstanding any other provision of these rules, the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies . . . .”). Criminal contempt requires: “misbehavior of a person, in or near to the presence of the court, which obstructs the administration of justice, and which is committed with the required degree of criminal intent.” United States v. McGainey, 37 F.3d 682, 684 (D.C. Cir. 1994).

All true, from that prissy legalistic perspective that means nothing and justifies anything.  So what? The defendant was sentenced.  Done. He was angry. Is that a shock?  He expressed it poorly. So what? Judges are supposed to be a bit bigger than that.  Big boy judges can hear the word “fuck” without going nuts.  Big girl judges too.  Just as my eyes won’t burn, neither will your ears. 

And yet, there’s a wrinkle.  The story of fuck y’all broke at the Blog of Legal Times in a post by Mike Scarcella.  

The appeals said the outburst—the defendant uttered “F–k, y’all” in open court—is enough to sustain a contempt conviction.

It was picked up by Nathan Koppel at the WSJ Law Blog.

At issue in the case is none other than the F-bomb. At a criminal sentencing hearing last year, a defendant (who was not identified in the opinion) evidently was displeased about the sentence he received, exclaiming in court: “F*** y’all.”

Neither could bring themselves to spell out the word “fuck.”  Not mention it in front of a judge, which would certainly have been inappropriate, but merely spelling out the specific word that was the subject of the decision.  When the blawgosphere is too prissy to spell out the word, can we fault the tender sensibilities of judges for putting a man in prison for an additional six months for uttering the word?

Doug Berman didn’t miss the irony.

Because the blogosphere has a decorum standard much different than the courtroom, I am amused and a bit annoyed that the WSJ Law Blog was unwilling to spell out the work fuck in its report here.  As the prior sentence reveals, however, I am not a big believer in word taboos.  Sticks and stones and all that… 

Personally, I am not nearly as troubled by the use of a naughty word in the courtroom as I am by the fact that my federal tax dollars are now going to be spent housing a guy for another six months simply because he said fuck in a courtroom.  But I may be full of shit and commentors should feel free to tell me to piss off in the comments.

Doug is a far funnier guy than I give him credit for.   Jeff Gamso similarly drives home the point, though with his usual thoughtful legal analysis so that his rampant use of epithets will not be wasted.


Since the anonymous defendant in DC didn’t say “Fuck y’all” to the judge until after he’d been sentenced, the proceedings were over, and no other court business was going on, he could neither have intended to obstruct justice nor actually have obstructed it.  There was, he said, no “actual obstruction of justice” so he couldn’t be held in summary contempt.  


Ah, what a foolish grasshopper.


Henderson explained for the court, issuing her own “Fuck you” to the anonymous defendant.  SCOTUS didn’t mean what it said in McConnell.  A sufficient insult obstructs justice even when justice isn’t obstructed.  And “Fuck y’all” is sufficient.

But the loop wouldn’t be complete until the school marm of propriety drives home the only really important point.

Is the extra six months really punishment?  Defendant might think so 29 years from now, if he is still alive, but it probably doesn’t seem like much now.

Kurt Scheidegger, a little ray of sunshine, who might not spell out the word “fuck,” but would clearly spell out the bright spot that chances are good the defendant will die before serving the six month sentence.

You’re Welcome, Mr. President

It wasn’t clear who was sitting at the other end of the computer.  That bit of information isn’t available.  But there can be no doubt that it whoever it was, an aide, a secretary, the Big Guy himself, the word got through.

It was the day after Thanksgiving that the  Philly Experiment posted.  To some, it might have seemed like a focus group, if that’s how a person views conversation among a small group of people.  To others, it was a political gold mine. 

Michael Vick is the poster boy for American virtue.  Not his virtue, as he lost that when he participated in the killing of dogs, but that of the fans in Philadelphia.  They weren’t too pleased with his joining the team last year, but they have accepted him, if not quite embraced him, this year.  Playing well didn’t hurt, mind you, but he is the starting quarterback of a team in the NFC East, the only division that really matters.  And he’s a convicted felon.

Redemption is hard to come by these days.  Whether because there are just too many people around to waste our time giving anyone a second chance, or because we achieved a simplicity in our view of others that prevents us from demonstrating that humanity is still an attribute of humans.  It looked as if no one could ever pay his debt to society and be given the opportunity to try again.

Would anyone get the message?  Would anyone heed it?  Yes.  Yes, someone was listening.  Someone who realized that the combination of NFL star quarterback and redeemed felon was too heady to pass up.

On December 27, the  Associated Press  reported:

The White House says President Barack Obama has commended the owner of the Philadelphia Eagles for giving quarterback Michael Vick a second chance after his release from prison.

Obama spokesman Bill Burton says the president told owner Jeffrey Lurie that while he condemns the crimes Vick was convicted of, he believes people who have paid for their crimes should have the opportunity to contribute to society again.


This is the start of something big, Mr. President.  I’ll keep writing.  You keep reading.  Together, we can clean up some of the mess.  And don’t let some strange little sartorially challenged elf who believes that Vick  should have been executed for murdering dogs concern you.  There’s a reason he can’t get his own show.

This could be the start of something big.  I’ve written lots of posts. I realize it will take you some time to get through them, but there are some ideas in here that could go a long way in helping the country and, not coincidentally, rehabilitating your reputation at the same time.  Most won’t cost any money.  Most won’t take much effort.  A few may be controversial, but pretty much anything you do stirs some controversy.  It comes with the job.

So feel free to cherry pick.  I’m here for you.  And no need to thank me.  I consider it my patriotic duty, and it’s my honor to help my country.  Together, we can get some good stuff done.