A twit by a young lawyer, who shall remain nameless as the point of this post isn’t to shame him and he seems to otherwise be a good guy, caught my eye. It was obviously twitted for its humor:

A thing that really happened today:

Attorney: “And how do you know that?”

Witness: “I don’t know, hearsay around the neighborhood.”

Me: “Objection, hearsay.”

Judge: “Overruled. I’ll allow it.”

His point in twitting this wasn’t lost on me. He was telling a funny story about some absurd thing happening in court. Law, so dumb, right? Being a curmudgeon, I replied: Continue reading →

There are arguments in favor of qualified immunity, and they’re not easily dismissed. Then again, there are arguments as to why it’s an inexcusable travesty, an exception created by the Supreme Court out of whole cloth. Adding to the mess, there is the problem of Pearson v. Callahan, in which the Court changed the analysis from serial to either/or, thus allowing courts to apply qualified immunity to egregious conduct without having to decide, and thus hold, that the conduct was unconstitutional.

So what? So the “clearly established right” prong of QI can never be met if courts skirt the part about whether the conduct involved violated a constitutional right. New Fifth Circuit Judge Don Willett agreed with the majority that, under the current state of the law, the court was constrained to grant the defendants QI in Zadeh v. Robinson.

Plaintiff Joseph Zadeh appeals the dismissal of his Section 1983 claim against several members of the Texas Medical Board who he claims violated his constitutional rights through a warrantless search of his office and medical records. Dr. Zadeh, an internal medicine doctor, owns and operates a medical practice in Euless, Texas. One of his patients, Jane Doe, is also a plaintiff-appellant in this case.

Continue reading →

While stories of sexual abuse in the hallowed halls of Congress, bought off by tax dollars with sealed with a non-disclosure agreement, caught a little bit of interest, it was dwarfed by the Stormy Daniels story, with a president buying the silence of a porn star over his affair that, remarkably, didn’t seem particularly disturbing to most people. The problem was the non-disclosure agreement, the contractual clause that kept the deed secret.

California, home of Harvey Weinstein and Asia Argento, had enough of it.

The California Legislature passed two bills last week aimed at helping sexual harassment victims and the bills are now awaiting Gov. Jerry Brown’s signature to become law. One bill, AB 3080, would ban confidential agreements regarding harassment and mandatory arbitration agreements in employment contracts, which are often used to prevent sexual harassment and assault victims from seeking justice.

The other, SB 820, would prohibit nondisclosure agreements that prevent the “disclosure of factual information” in sexual harassment, assault and discrimination settlements. The bill would still allow settlement agreements in sexual misconduct cases and allow the victim’s name to remain private, but the name of the perpetrator cannot be concealed.

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It was last March, and a legal scholar of no small note, Erwin Chemerinsky,the uber-progressive  dean of the wildly-woke UC Berkeley Law School, took to the op-ed page of the Sacramento Bee to call for reform.

California should join other states that are abandoning the traditional bail system for those awaiting trial and replace it with an assessment of a person’s danger to society or flight risk. Senate Bill 10, now pending in the legislature, would be a huge step forward for the state and make an enormous difference in people’s lives. It also is essential in light of a recent decision of the California Court of Appeal declaring California’s bail system to be unconstitutional.

The system used in California was based on a bail schedule, a set amount of bail for an offense, such that the amount bore no connection to the person. If you were charged with larceny, you paid the bail for larceny, whether you were a guy with 28 prior larcenies or Pope Francis. It was a ridiculous, and unconstitutional, system. To add insult to injury, the nice folks who benefited most from this system were bail bondsmen, vultures despised by everyone until you needed to get bailed out. Continue reading →

As seems to be the new policy at the New York Times, the headline doesn’t quite match the story. Somebody leaked a draft copy of the proposed new Title IX regulations to Erica Green, so the headline reads “New U.S. Sexual Misconduct Rules Bolster Rights of Accused and Protect Colleges.” Except they’re not yet rules. Indeed, they’re not yet proposed rules. They won’t be until they’re published in the Federal Register.

But hey, details, right? At least the Times’ erroneous headlines isn’t nearly as wrong as Mother Jones.

The New York Times Just Revealed Betsy DeVos’ Plan to Let Colleges off the Hook for Sexual Assault

Both the Times and Mother Jones concede that the rules remain a draft, and won’t become regulations until after they’ve undergone the required notice and comment. Continue reading →

Suddenly, people were talking about the Louis CK problem yesterday. Why would anyone talk about this erstwhile woke comedian, a beloved ally to the cause, until his bizarre sexual peccadilloes were revealed? Apparently, he showed up at a comedy club and did a 15 minute set. The audience gave him a standing ovation.

So what’s the problem? If people don’t want to see Louis CK, they don’t have to. No one can make them go see him. If he simply appears, they can walk out. No one can make them watch. If people don’t want to watch Louis CK, he won’t get a stage, he won’t get an audience, he won’t get applause. He got all three. Clearly, people wanted to see him. So what’s the problem?

The scolds before whom Louis CK committed no offense went nuts. How dare this toxic male return from exile without their permission? But even worse, how dare this audience sit there, watch him, applaud? Did they not realize that he was horrible? Did they not realize that he had not been punished sufficiently to sate the scolds? What about justice? Continue reading →

Edward Addison Cook III (Ed), 88, died Monday, Aug. 13, 2018. Ed was the best lawyer and the best person I have ever known. I loved Ed.

In 1884, Ed’s grandfather came out to Lexington, Nebraska,[i] from Illinois after reading law. He submitted to an examining panel before the District Court of Dawson County and was, that same day, admitted to practice. Later, Ed’s father took over. The Cook law firm celebrated 100 years of continuous practice in 1984, and I was privileged to attend the celebration as Ed’s law partner. Ed practiced law for five decades, and I was honored to have spent 13 of those years with him. Judge Jim Doyle later became our partner as well.[ii] Continue reading →

Like Walter Olson, I had been highly critical of the “new” ACLU which had forsaken the defense of civil liberties for the appeal to social justice. So when Wally posted that the ACLU had filed an amicus brief in support of the NRA after being targeted for destruction by Governor Andrew Cuomo, I was shocked.

After the Nazis and the KKK, the National Rifle Association is perhaps the group most hated by the ACLU’s fan base. And having reaped monumental financial rewards from tapping into the emotions of the newly woke, the ACLU was not only fabulously wealthy but empowered to limit its largesse to only those issues and parties that were worthy of its patron’s tears.

Yet, there it was, the ACLU coming out in support of its mortal enemy because Cuomo was using his regulatory apparatus to silence an organization because he hated its message. This was so . . . principled. Following Wally, I was inclined to applaud the ACLU and, maybe, concede that it wasn’t dead yet. David Cole, the ACLU’s legal director, remembered why it was there and would not compromise civil rights for the whims of donors. Continue reading →

An admission: I’ve never thought well of Rudy Giuliani. Not when he was United States Attorney for the Southern District of New York. Not when he pretended to be a drug buyer. Not when he was Mayor. Not when he was anything. So understand that I will gleefully seize upon any opportunity to ridicule Rudy.

Rudy Giuliani and Sen. Alfonse D’Amato cosplaying drug buyers

But the paper of record asks whether Rudy, now pretending to be Darth Vader to Darth Cheeto, is winning his trial in the court of public opinion. Continue reading →

Not that I’ve ever been a big fan of the Marshall Project, but that was before they started publishing fiction. But even fiction has its limits, grounded perhaps in something remotely connected to reality so that the parts that try to evoke emotions don’t invoke cringes and laughs instead. They blew it this time.

Three Strikes Didn’t Work. It’s Time to Pay Reparations

Heck of a clickbait title, but the subtitle will really grab you.

Black and brown men paid the price for supplying what the recreational drug market demanded: cocaine and weed.

I know these “good Samaritans” well. I defended quite a few of these great humanitarians, maybe even some the writer remembers from her days in the South Bronx. They were fun days, filled with tiny vials of crack and kids killing for the turf of a decent street corner spot or banging some old lady over the head for their fix.

I WAS RAISED IN THE SOUTH BRONX in the late 1980s and ’90s. I came of age and into my consciousness while a generation of men of color were herded into the criminal justice system under the rigid, unyielding habitual offender laws — three-strikes laws — for nonviolent drug-related offenses.

Except New York never had a “three-strikes” law. That’s the sort of detail that you would think someone at the Marshall Project would realize, since the writer was obviously clueless. Or maybe she wasn’t, and is trying to pull one over on you on the way to her rom-com ending.

There are sound, strong even, rational arguments that the sentences imposed on crack dealers in New York, both state and federal courts, were grossly excessive. When ten years didn’t stem the problem, it was upped. Then raised again. Rinse and repeat. And it never worked, not because the sentences weren’t absurdly long enough, but because there were few options and way, way too much money to be made selling crack.

If you were a young guy in the South Bronx with limited education, your job prospects were, ahem, poor. But there were these guys driving fancy cars, wearing shiny Rolexes, with gold chains that could weigh down a horse. They drank Cristal at night at clubs where women fell on them. It was a life many young men yearned for, and so they took that path. They knew very well what they were getting into, but the good life was worth it. Or at least that’s what they believed.

And whenever there is big money and good times at stake, people will fight for their piece of it. And they did. Some when they were forced to. Some because they wanted to be Tony Montana, enjoying the power of violence a little too much.

But what they were not was great humanitarians, helping out their brother man by supplying a desired pastime. Don’t pay for your crack and see how sweetly they tried to persuade you to honor your responsibilities. And if the only way to get the loot to cover your debt meant some random person got beaten or robbed, well, that was had to be done because you needed that next fix.

That’s not the story Juleyka Lantigua Williams tells, however, as it would never lead to the tear-jerking ending.

In my Bronx neighborhood, after fathers went upstate, mothers often had to work two jobs to keep families afloat, even in rent-controlled apartments. Or they had to do the unthinkable and apply for Section 8 and welfare to help care for an infant. Grandmas would arrive from the Caribbean to become the stay-at-home parent, do the cooking and cleaning, and keep their daughters from succumbing to their virtual widowhood.

It was hard on the family left behind, especially when “their men,” the spouses and fathers, spent every dime they ever made on the accouterments demanded of a big man on the street. There was no money left to feed their children, or for lawyers, when it was pissed away on trinkets. But the passive voice, “after fathers went upstate,” conceals why fathers went upstate. Even if they were sentenced to reasonable sentences, they would still go upstate. Because they were drug dealers.

And after drying your tears over the horrors perpetrated on drug dealers drinking champagne, we come to the fantasy payoff.

Today, the men who were taken from neighborhoods like mine are in their forties and fifties, having spent most of their lives in prison. Their families torn asunder, their children and siblings derailed, and their future — should they eventually be released — a total blank. The only way for states and the federal government to atone and begin to undo the damage is to commute their sentences, reverse their convictions, and pay these men reparations.

Does this romantic kiss at the end of this sad story not break your heart? Had the payoff been reducing sentences of life plus cancer to, say ten years, which would have been more than sufficient to serve the legitimate purpose of a sentence of incarceration, this might be a story with a nexus to reality. But that wouldn’t have made you cry, would it?

Commute their sentences. Reverse their convictions, and the coup de grâce, reparations. Reparations? It’s almost poetic, in a completely batshit crazy sort of way. If that doesn’t make you cry, nothing will.

I’ve spent a good deal of time of late trying to explain to young activists why they’re not helping to achieve viable reform by indulging in their psychotic delusions of denial, their fantasy versions of reality, their weeping over systemic horrors that aren’t quite systemic and weren’t entirely unjustified.

This post was a prime example of pushing a lie so ridiculous, so unfathomably laughable, as to render its writer, and its publisher, a joke. Serious people have fought to get New York to enact an expungement statute to no avail. So instead, proffer a story so absurdly false, plus call for commutation, reversal of convictions and, ta da, reparations?

This didn’t appear at the Marshall Project by accident, but because the young and unduly passionate believe this insane nonsense, spout lies they want to believe and demand solutions that are so outrageous as to be off-the-charts offensive.

And someone like me, a criminal defense lawyer who is supposed to be on their team, refusing to indulge in their delusions and instead fighting for rational solutions based on reality, is the worst of the bad guys. After all, no one is worse than a traitor to the cause, even when the cause is a rom com fantasy.

I was informed yesterday by a woke young lawyer that maybe the problem is that I, “a middle aged white guy,” might not be “the best person to judge the validity of complaints about things like microagressions [sic]” when they’ve stymied effort to prevent cops from needlessly killing black guys in the streets.

Maybe he’s right, that the future of reform will rely on fantastical lies by narcissistic children. So why not reparations? Makes total sense as long as you believe in fantasies. And if you are down with delusions, at least you can take comfort in knowing that the Marshall Project suffers from delusions as well. After all, it’s our messiah, or so it says.