Granted, it was in response to a ridiculously baseless argument. Granted, it was in a civil case. Granted, the civil case was against Donald Trump. Granted, the outcome, that the $5 million dollar verdict in favor of E. Jean Carroll was hardly excessive. Still, Judge Kaplan’s ruling is troubling.

So why does this matter? It matters because Mr. Trump now contends that the jury’s $2 million compensatory damages award for Ms. Carroll’s sexual assault claim was excessive because the jury concluded that he had not “raped” Ms. Carroll. Its verdict, he says, could have been based upon no more than “groping of [Ms. Carroll’s] breasts through clothing or similar conduct, which is a far cry from rape.” And while Mr. Trump is right that a $2 million award for such groping alone could well be regarded as excessive, that undermines rather than supports his argument. His argument is entirely unpersuasive.

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It was a shocking revelation, even if it’s unclear how seriously it should be taken.

Case in point: a new Newsweek poll on misgendering. In the poll—given to 1,500 eligible voters in the U.S. in early July by Redfield & Wilton Strategies—people were asked whether “referring to someone by the wrong gender pronoun (he/him, she/her) should be a criminal offense.”

A shocking percentage of younger survey respondents said that it should.

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Its physical plant is a dump. Its size is unmanageable. Its leadership, from the mayor to the Department of Corrections to its senior staff, has never demonstrated the will to do more than make it through another day. The district attorney with jurisdiction over it has largely turned a blind eye toward the crimes committed against prisoners. The union representing corrections officers has long been corrupt and shielded its members from consequences for their actions and inactions.

And now, the United States Attorney for the Southern District of New York is moving under a consent decree to have Judge Laura Taylor Swain, overseeing the consent decree, appoint a federal receiver to take control of Rikers Island, the primary complex of New York City jails. Continue reading →

Hans Bader raises a bill that passed with overwhelming support in the California Assembly and is now under consideration in the Senate that would authorize judges to take the race of a defendant into account in sentencing.

The bill would add a section to the Penal Code of California requiring courts, whenever they have the authority to determine a prison sentence, to “rectify” alleged racial bias in the criminal justice system by taking into account how historically persecuted minorities are affected differently than others. Continue reading →

It’s valuable for a knowledgeable person to take the contrarian view* of something that almost everyone finds unconstitutional and anathema to foundational notions of legal propriety, so it’s good that former AUSA, George Washington Law adjunct and Washington Post columnist Randall Eliason challenged the near-universal view that sentencing defendants for conduct underlying a crime for which the jury acquitted is wrong.

My biggest problem with the arguments against acquitted conduct sentencing is what they appear to assume about the impotency or incompetence of judges.  There will be some cases where consideration of the facts underlying an acquitted count will be appropriate, and some cases where it won’t.  If the prosecutor tries to increase a defendant’s sentence based on acquitted conduct where the facts clearly do not support that, the judge can reject it.  Judges are not mere passive conduits through which prosecutors work their will. Continue reading →

The Oklahoma Court of Criminal Appeals made short work of former Judge Timothy Henderson’s having a sexual relationship with one of the prosecutors handling the trial of Robert Leon Hashagen, III, for the murder of 97-year-old Evelyn Goodall.

“It is no exaggeration to state that the very integrity of the judiciary in Oklahoma is at stake here,” attorney James Lockard argued in a defense appellate brief. “If a man can be convicted and sentenced to die in prison at a trial before a judge and prosecutor who were literally in bed together, then no citizen of Oklahoma can or should expect to get a fair trial in any Oklahoma court.”

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“Muscles and Mayhem,” the Netflix docuseries about the game show “American Gladiators,” has my attention these days. Maybe it’s because I like having large segments of my childhood ruined. I mean honestly, it’s hard enough for me at times to swallow that many of the people I used to admire were on anabolic steroids—among other substances.

But then one asshole just took over the entire series, and I knew I needed to know more. His name was Elden Kidd.

I’m going to warn all of you in advance most of what I know about Elden Kidd is pieced together from interviews with the man and puff pieces written in places like GQ, so keep that in mind as you read this. Continue reading →

The characterization of the amicus brief was both pointedly humorous and not funny at all.

Brief of Amici Curiae David Sosa, David Sosa, David Sosa, David Sosa, & the Institute For Justice in Support of Petitioner David Sosa

The last David Sosa was the poor guy who was twice arrested in Martin County, Florida, because of an arrest warrant out of Texas for another David Sosa and, the second time, held for three days despite having no indicators that he was the same person except for the name. He was finally released, for the second time, after prints came back showing that he was a different David Sosa. The other David Sosas? Continue reading →

There are two things right and left agree upon. The first is that censorship of the internet is critical to our survival. The second is that Judge Terry Doughty’s injunction in Missouri v. Biden is over and under inclusive, or to put in lay terms, isn’t very well framed. So there’s consensus? Not really, since other than agreement about these two things, they come out on opposite sides of the issues.

That much is true by definition. Doughty’s injunction generally prohibits various agencies and officials from “meeting with social-media companies,” “specifically flagging content or posts,” or otherwise “urging, encouraging, pressuring, or inducing” the “removal, deletion, suppression, or reduction of content containing protected free speech.” The injunction also bars the defendants from “threatening, pressuring, or coercing social-media companies” toward that end and from “urging, encouraging, pressuring, or inducing” them to “change their guidelines for removing, deleting, suppressing, or reducing content containing protected free speech.”

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The head of Stanford’s Supreme Court Litigation Clinic, Jeffrey Fisher, raises a very important point. It may take five votes to win at the Supreme Court, but it takes four votes just to make it on the docket. And the right/left split is 6-3, leaving the liberal/progressive side one vote shy of  a certiorari grant.

Why does this matter? Because the rule of law requires the court to do more than simply adhere to precedent when deciding cases. It also requires the court to reprimand lower courts when they refuse to follow Supreme Court decisions. If it doesn’t, those rulings are in danger of becoming dead letters, precedents that lose their force without being overruled.

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