The notion of jurisdiction is both foreign and arcane to most people. Something wrong happened, and thus someone should be able to do something about it. In the case of Rensselaer County District Attorney Joel Abelove, the wrong he did in sabotaging the prosecution of Troy Police Sgt. Randall French for the killing of DWI suspect Edson Thevenin deserved scrutiny.

Before his downfall for kinky proclivities, feminist-ally, Trump-hater and then Democratic Attorney General Eric Schneiderman seized the opportunity to do that something. He indicted Abelove for first degree perjury based upon his testimony in a grand jury investigating his conduct. The case was set for trial on June 20, but Abelove moved to dismiss the indictment based upon the AG exceeding his (now hers, since Barbara Underwood has replaced the disgraced Schneiderman in the meantime) authority.

And Abelove, dirty as he may be, crushed the AG’s office and the indictment in a decision by Acting* Supreme Court Justice Jonathan Nichols. Continue reading →

A study conducted under the auspices of the National Academies of Science carries a great deal of weight, and for good reason. But then, that’s largely based on the “science” piece, not that it appears to have given rise to any sense of constraint this time.

The 311-page document is the national academies’ first report addressing sexual harassment, a problem that has long simmered in labs and classrooms, and some people predicted it could help spur meaningful change.

“Reports from the National Academy carry substantial weight,” said Dr. Carol Bates, associate dean for faculty affairs at Harvard Medical School and a co-author of a recent article calling for “zero tolerance for sexual harassment in academic medicine.”

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The victims of a multi-million dollar Ponzi scheme want their money back, and it was up to Judge Carlton Reeves of the Southern District of Mississippi to make that happen.

This case involves a multi-million dollar Ponzi scheme that defrauded hundreds of investors. The ill-gotten gains of that scheme now reside in Defendants’ estates. The Court has determined that a receivership over those estates is appropriate.

Great. So one would expect the balance of the order to appoint a receiver, since the only issue before the court is the appointment of a receiver. But Judge Reeves decided that the appointment of a receiver, the clawback of the ill-gotten gains to be returned to the victims of this multi-million dollar Ponzi scheme was less important, less exigent despite the possibility that the assets might dissipate, then was a very different concern. Continue reading →

Following the somewhat disingenuous revelations about former Ninth Circuit Judge Alex Kozinski, Chief Justice John Roberts convened a “working group” to formulate ways in which to address the “problem” of federal judges. The brilliantly titled “REPORT OF THE FEDERAL JUDICIARY WORKPLACE CONDUCT WORKING GROUP TO THE JUDICIAL CONFERENCE OF THE UNITED STATES” has now been revealed. It reads like an EEOC polemic on workplace whining.

The EEOC Study of harassment in the workplace provided the Working Group with a current and reliable empirical baseline to understand the problem and focus its inquiries. The EEOC Task Force conducted its study over 18 months from January 14, 2015, through June 2016. The 88-page report convincingly explains that workplace harassment is a persistent and pervasive problem in all economic sectors, in all socioeconomic classes, and at all organizational levels. The EEOC Study noted that almost one third of the 90,000 charges it received in 2015 included an allegation of workplace harassment. Those charges included harassment on the basisof sex (including sexual orientation, gender identity, and pregnancy), race, disability, age, ethnicity/national origin, color, and religion. The EEOC Study found that between 25 percent and 85 percent of women in the private sector and federal sector workplace experienced sexual harassment, depending on how that term is defined. The EEOC Study stated that three out of four individuals who experienced harassment never talked to a supervisor or manager about it. In short, the EEOC Study confirmed that the problem of workplace harassment is both widespread and underreported in workplaces throughout the nation, and—as the Chief Justice noted in his Year-End Report—there is no reason to believe that the Judiciary is immune.

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After ripping to shreds the New York Senate’s cyberbullying law for the omission of a definition, Eugene Volokh queried whether we missed something significant.

Eugene Volokh points out (via email) that there is a definition of cyberbullying on the books in New York state. The bill does not reference it, however. This bill appends Section 12a to Section 12, which is part of the state’s consolidated education law. Section 12 says “no student will be subjected to harassment or bullying by employees or students on school property or at a school function.” There’s still no definition here of bullying or cyberbullying, nor is there anything pointing to the state’s definition of these terms. To find a definition, readers must look to Section 11 (again, not mentioned anywhere in the new bill), which is another part of the state’s education laws.

And indeed, there is a section of the Education Law that provides what could generously be called a definition. Continue reading →

When Harris County created the Office of Public Defender, it did something remarkably rare: It found the right person to create it and lead it. Alex Bunin built the real deal in Harris County, which had been a swamp of private indigent defenders milking the system and too-often providing no more than a warm body. Alex put together an office of excellent lawyers dedicated to their clients and at less cost to Houston. What more could you want from the guy?

Loyalty. Precinct 3 Commissioner Steve Radack was outraged that Alex’s loyalty was to his clients, to the poor people of Houston rather than to the commissioners who paid him.

The county attorney’s office has asked for an executive session at Tuesday’s Commissioners Court meeting to discuss its investigation of the public defender’s office, which is led by Chief Public Defender Alex Bunin. Continue reading →

In a twit, Cathy Young reminded me of a New York Magazine article from an earlier, more innocent age. The writer was Jonathan Chait. The time was 2015. There was no President Trump, nor was such an absurd notion considered remotely possible. The article was “not a very PC thing to say.” The subtitle was “how the language police are perverting liberalism.”

It’s an exceptional article, and one that would be unlikely to see the light of day at New York Magazine today. Whether Chait would take the risk of writing such heresy, and suffering the outrage it would evoke, is unclear, but it appeared at a time when Godwin’s Law was still in effect, and so he was awful for having told the truth but at least not literally Hitler.

That the new political correctness has bludgeoned even many of its own supporters into despondent silence is a triumph, but one of limited use. Politics in a democracy is still based on getting people to agree with you, not making them afraid to disagree. The historical record of political movements that sought to expand freedom for the oppressed by eliminating it for their enemies is dismal. The historical record of American liberalism, which has extended social freedoms to blacks, Jews, gays, and women, is glorious. And that glory rests in its confidence in the ultimate power of reason, not coercion, to triumph.

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Ed. Note: Portland criminal defense lawyer David Menschel noted on the twitters that there are now more people on sex offender registries than incarcerated. While mass incarceration is a well-recognized travesty, recognition of the burdens of SORA remains a mystery to many, who have no appreciation of the devastation it imposes for jobs, residence, disclosure, reporting and the normal accouterments of life. Not to mention violent retaliation by the unduly fearful and hateful.

While it’s an easy sell to explain why a kid urinating against a wall, or a teen sexting a pic of herself, isn’t really a “sex offender,” it’s far harder to understand why people convicted of the more repulsive offenses shouldn’t be pariahs. Below is a repost of Guy Hamilton-Smith’s Medium post to give you some insight into who these evil people may be. Bear in mind, the question isn’t whether they did wrong, but whether the punishment for the offense should be the walking death penalty of a life condemned to misery.

Ryan is the hardest part of my story to explain.

We have never met, nor will we, and yet he radically changed the course of my life. Continue reading →

It may be that Michael Gottlieb figures he’ll cover all the bases, because why not? It’s not his job to worry about other people’s privacy, about sticking his nose into the wholly unrelated private business of people he neither knows nor gives a damn about. And as a fairly new lawyer at Boies Schiller, trying to make his bones in crisis management, leaving a little scorched earth behind is the least of his worries.

But for Pogo, not to mention Popehat, this is a step too far.

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Another wrinkle that was totally foreseeable has come to crush the dreams of the “video will fix everything” crowd of simplistic crim law activists. In the early days, when people started using their cellphones to create videos of things that never, ever happened before, like cops beating people for no particular reason, it revealed what we had been arguing all along. It was, to some, a panacea.

To others, it was a window to a world that had been denied forever, until it was right there, in your face, on video. Then came dash cam, and body cam, and Axon making a bundle off it after it changed its name from Taser. But still, there was video, which birthed the “but for video” series of posts here over the years.

But we also understood that there would be problems, some that we could easily foresee and others that would be far trickier, far less visible. One problem, however, has now come to pass that should surprise no one. Hackers gonna hack, right? Continue reading →