The status quo is horrible, even if exaggerated to make the point.

New York laws on pretrial process are among the most retrograde in the nation. Prosecutors can withhold evidence until the morning of trial. To keep it that way, the district attorneys’ association has made the fear-mongering claim that early disclosure of evidence would enable defendants to intimidate witnesses and victims.

This isn’t quite false, but wildly imprecise. Prosecutors in New York are required to make disclosures under CPL § 240.20, so to say “withhold evidence” is inaccurate. But it is true that anything outside the statutorily-mandated discovery can be withheld until the eve of trial, including witness statements, which we refer to as Rosario material, and Brady material.

What this means is threefold: we can’t investigate to determine the efficacy of the evidence against the defendant, and we can’t search for contrary evidence to refute the prosecution’s claims and we can’t properly prepare a defense since we don’t know what evidence we will face at trial. So while it’s hyperbolic to claim we’re blind, it’s fair to say we can’t see what we need to see if we’re to mount an adequate defense. Continue reading →

It’s one thing to offer an etiquette class to incoming students lacking the social graces one expects of a Harvard student. It would be even more useful to help students coming from environments where their experience is nothing like Choate-Rosemary Hall to fit in. After all, there aren’t many kids from the South Bronx who can chat amiably about their favorite restaurants in St. Germaine.

There is a real issue to be addressed in bringing together people of very different cultures and social experiences, and there is no doubt that the diversity students, much as they may be embraced so the woke white kids can have a black friend to prove their allyship, know that they’re not like them. But learning how to wear khakis doesn’t mean you get to demand that Harvard rename Mass Ave. to St. Nicholas Boulevard.

We’re tired. We’re busy with classes, homework, and extracurriculars. But we still took the witness stand in the federal Harvard admissions trial on Oct. 29, doing something that most college students have only seen in television shows. We spent countless hours preparing with lawyers, talking to media, and organizing our peers to rally and march because we ardently believe in the importance of educational justice and accessible higher education for students of all backgrounds. Continue reading →

When Senior Judge John Kane rejected the plea agreement, not because he had any difficulty with the deal cut as far as the defendant was concerned, but that the government gratuitously threw in the now-ubiquitous waiver of appeal, the Tenth Circuit said no. Judge Kane’s position was that the government provided no additional consideration for the waiver. The Circuit’s view was, “So what? That’s the deal.”

In Garza v. Idaho, the Supreme Court issued one of those head-scratching decisions that gave the appearance of good news while accomplishing little, if nothing, to help. The Court extended the rule of Roe v. Flores-Ortega, that failure of counsel to file a Notice of Appeal was, per se, ineffective assistance of counsel.

This was a significant decision, as if would otherwise fall to the defendant to meet the requirements of Strickland v. Washington to show that counsel’s screw-up, the failure to file the notice, would survive the second-prong of the test, that there was a reasonable probability of a different outcome. In other words, you had to show a probability that you would win the appeal to get the right to appeal. This was not only an absurd burden, but gave cover to inexcusable failure. A first-level appeal is a right, so failure to file a notice is an unjustifiable failure. Continue reading →

If your image of a knitter is some grandma, softly repeating “knit one, purl two,” you haven’t been paying attention to the resurgence of what Vox calls “fiber arts,” Why the word “knitting” is deemed inadequate for the art of knitting is unclear. It could be because hipsters need a new word for everything, to distinguish it from what grandma did, or it lacked the prestige new wave knitters needed to validate their importance.

Still, knitting was a wonderful craft. Until it turned into a vicious cesspool of hateful outrage.

On January 7, Karen Templer, a knitting designer and owner of the online store Fringe Association, published an innocuous blog post on her website entitled “2019: My Year of Colour,” in which she enthused about her forthcoming trip to India.

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In advance of his testimony before the House Oversight and Reform Committee, Michael Cohen’s opening statement was released. It reveals nothing, absolutely nothing, about Donald J. Trump that shouldn’t have been brutally obvious to anyone paying any attention at all.

He never expected to win the primary. He never expected to win the general election. The campaign – for him – was always a marketing opportunity.

That anyone could have believed otherwise is astounding.

He is a racist.
He is a conman.
He is a cheat.

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Ed. Note: This is a guest post by Roswell, Georgia, lawyer Charles Landrum, addressing the story raised by the Atlanta Journal-Constution about criminal defense lawyer and Georgia Speaker of the House, David Ralston. alleging abuse of his office for the benefit of his clients.

The annual Georgia legislative session lasts 40 days, from January to March. In 1905, the Georgia legislature passed a law that gives attorney-legislators the right to delay “any act” in a case in which they represent a party for so long as the legislature remains in session. O.C.G.A. § 17-8-25(a) does the magic in criminal proceedings. O.C.G.A. § 9-10-150 grants the same magical powers in civil proceedings.

A 40-day delay in a court case so that a duly-elected representative of the people has the opportunity to fulfill their legislative duties makes sense. Cases get delayed all the time; what’s another month and a half? A judge in Savannah or Augusta can wait on the Gold Dome in Atlanta. Continue reading →

For lawyers, our courtroom attire is a uniform, spanning the color universe of gray to blue and seeking to accomplish two things: make us appear serious and credible to the judge and jury and not distract from the more important things happening. We strive to create an impression that enhances our function without undermining that function.

This goes for all lawyers, regardless of gender, although men have it far easier than women given our clearer options and fewer possible fashion faux pas. Our shoe choices are black or brown, and the biggest issue at the toe end is plain, cap or brogue. No peeking.

Are we really so constrained by fashion protocol? Should we be? Is it just another manifestation of “toxic masculinity”? It’s one thing to take a risk when the only person who might suffer is you, but when we’re there solely for the sake of a client, is it irresponsible to risk our client’s interest to express our own fashion sense? Continue reading →

It was unsurprising when a friend, a teacher, told me that one of her students expressed a desire to be called by a name other than the one given by her parents. She told her principal, and inquired whether she should inform the child’s mother. Her principal instructed her that it was district policy not to do so, that the teacher was to acquiesce to the child’s preference and keep it from the parents.

In one story, parents are wonderful nurturing people. In another story, parents aren’t. The school wasn’t taking any chances of being on the wrong side of transphobia. Maybe the child is gender-dysphoric. Maybe not. But if they snitch to the parents, and the parents lack sufficient prescience to be supportive of a second grader who wants to be called Billy instead of Suzie, all hell could break loose. They don’t need that sort of backlash, and so the choice of keeping the parents in the dark prevailed.

Bioethicists have seized upon this mindset by invoking the power of the State not just to conceal information from parents, but to seize the child to be raised and medicated in the “right” way. Continue reading →

Dr. SJ and I watched Roma on Netflix because, as she explained to me, it was going to be an Oscar contender and we should watch Oscar-contending movies. We were about fifteen minutes into the film when she turned to me and said, “I don’t think it gets any better. I don’t think there’s any plot, any story at all.” It took us about a week to watch the movie, in small chunks, because we were bored.

As an aside in her Times op-ed against quota-izing our world to assure that the right number of genitalia are omnipresent, Reason Magazine’s editor-in-chief, Katherine Mangu-Ward, describes the movie.

But consider “Roma.” If there is any justice in this world, it will win the Academy Award for best director on Sunday. This wrenching, beautiful film is set almost entirely in the world of women; it delicately engages class and race, stares unflinchingly at the darkness and light of motherhood, and yet it shows up on the wrong side of the gender ledgers: The director is Alfonso Cuarón, a man.

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The group Turning Point USA had a table on campus at UC Berkeley, where legend has it that the free speech campus movement was born. Whether you like the group or not is irrelevant or all that matters, because they’re either entitled to express their views or not based upon whether you believe free speech is a right or speech is violence, and therefore to be met with violence.

This fellow falls into the speech is violence crowd because of his refined sensibilities of morality. Or maybe he embraces the punch a Nazi, punch a teenager in a red MAGA cap, punch anyone who disagree with you mentality. Or he just likes to punch. It’s impossible to say for sure since he has yet to explain himself.

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