The reaction to efforts to “explain” for the sake of distinguishing why Brett Talley wasn’t qualified to be a federal judge proved to be curious. Most of the arguments centered on the fact that he had only “practiced” for three years, had never tried a case, “never even argued a motion!” Certainly these aren’t the sorts of things that give rise to a sense of competence, but I admonished Talley’s detractors to be careful.

Elena Kagan: 3 years practice. Never tried a case. Prawf & dean. 1 year as solicitor general. Sup Ct justice. Be careful.

This brought a flurry of retorts designed to distinguish Kagan from Talley. Notably, few raised the most substantive distinction, that her decades of experience as a scholar provided Justice Kagan with a base of knowledge and experience, even if not the same as actually trying a case, that Talley lacks. One could argue whether writing law review articles and being on panels discussing legal theory is the equivalent, or perhaps even better, experience, but that wasn’t where this headed.

Rather, the argument was that a judge of a district court, where trials happened, needed a different skillset than an appellate judge. The district judge was, I was informed, a glorified calendar clerk, pushing cases in and out, while an appellate judge was expected to have a brain and be capable of serious legal thought. Continue reading →

It would be a jarring headline anywhere but Vox.

The most respected Supreme Court reporter of her generation slams media “objectivity”

Even if it was true, it’s so utterly lacking in humility that it would be shameful anywhere else. But there’s no shame at Vox. As for the subject of this headline, Linda Greenhouse, her accomplishments demand no such hype.

Greenhouse covered the Supreme Court for the New York Times for “nearly three decades.” She won a Pulitzer Prize “for her consistently illuminating coverage of the United States Supreme Court.” She’s not a lawyer, yet she’s now the “journalist in residence” at Yale Law School, whatever that means.  Continue reading →

My brother is dead.[i] He died last Thursday. As you read this, I am in Cleveland to attend to the committal of his ashes.

Despite being closely monitored by the Cleveland Clinic for the recurrence of a cancer that he had beaten against all odds, a different cancer silently struck. Sarcomatoid renal cell carcinoma (RCC) is an aggressive form of RCC and is associated with an awful prognosis. That’s what hit my brother literally out of the blue.

His spine, hips and other distant structures were riddled with metastases. Even though he denied it, his pain was off the charts. In the last month, he could not walk for fear his pelvis would shatter. He was dead in a little less than three months after the diagnosis.

I saw my brother about a week before he died. He was at the Ames Family Hos​pice House. That place, its doctors, nurses, staff and volunteers, are all a marvel. Even though my brother, a former locomotive engineer and local union chairman, would sometimes demand the nurses allow him to put on his pants so he could go to work, he was afforded maximum cognitive clarity while still achieving relief from his extreme pain. Continue reading →

Ed. Note: The following is a guest post by Harris County Public Defender, Alex Bunin.

The adage “a man who is his own lawyer, has a fool for a client” has been attributed to Abraham Lincoln, Henry Kett and (the always quotable) Anonymous. Lawyers consider it sound advice. Citizens under investigation are often less convinced. This disparity keeps criminal defense attorneys regularly employed.

In 32 years as a criminal defense attorney, I witnessed citizens escalate minor indiscretions into serious criminal charges merely by speaking directly to law enforcement without legal advice. There is generally some hubris on the part of the citizen, but incrimination is virtually certain when questioned by an officer who is skilled in interrogation.

Therefore, it is with alarm that I watched the public spectacle of Carter Page. Back in March, 2016, after much public wonderment about whether Donald Trump had anyone designing his potential foreign policy as President (beyond real estate deals), the campaign hastily announced a team of experts. It included the recently indicted George Papadopoulos and Page, or as the candidate called him, “Carter Page, Ph.D.” Continue reading →

To older criminal defense lawyers, the cognitive dissonance of some of our more passionate brethren is a matter of serious concern. There is simply no rational way to make sense of the simplistic knee-jerk condemnation born of social justice ideology for the constitutional rights upon which we rely, and for which we fight, every day.

At Above the Law, Toni Messina takes her best shot.

I don’t know a single woman who hasn’t been sexually harassed.  Yet as criminal defense attorney who believes in the presumption of innocence, I wear two hats on how to deal with this. People guilty of sexual harassment and worse should be punished, but no person is guilty until proven so.

A curious way to begin, given the facial conflict in her words. To the extent there is a saving grace, perhaps it’s in the meaningless of the words “sexually harassed,” since she offers no definition and, perhaps like so many women, confuses them to mean whatever evokes a feeling of victimization rather than an offense that would require proof. Continue reading →

A panic has begun. We do so love our panics, and then squeeze everything despicable into the latest crazed narrative. It’s a facile way to make sense of a crazy world, huffing stories for the self-righteous high they give us and the facile way we can distinguish the good from the evil, even if yesterday’s heroes have to be sacrificed to drive home the purity of the story line.

The drunken tirade of now-former Dallas assistant district attorney Jody Warner against a 26-year-old male Uber driver, Shaun Platt, could easily be put to good use as a weapon in the gender war. Had Platt not been thoughtful enough to record the interaction, there’s a good chance he would have ended up as the bad guy in this story. Instead, the ex-prosecutrix found herself jobless.

Continue reading →

Some scoundrels refuse to accept pastafarianism. Some doubted David Berkowitz’s taking direction from a dog. But the Second Circuit has ruled that the laugh test doesn’t apply to religious beliefs.

The U.S. Court of Appeals for the Second Circuit revived a Brooklyn prisoner’s complaint that a jail policy forbidding inmates stuffed animals violated his religious rights.

Inmate Christopher Grief, in his second amended complaint filed in February 2016 against Metropolitan Detention Center Brooklyn Warden Herman Quay, alleged violation of the Religious Freedom Restoration Act. Grief stated that, while he “does not belong to any mainstream religion,” his beliefs—stemming from “various religions” such as Buddhism but also “from science and science fiction as well as his life experiences”—lead him to find “spiritual guidance from his stuffed animals during meditation.”

It’s unclear whether this applies for all stuffed animals, like the old-school Gunds, or just the newer ones like Beanie Babies. It’s not entirely clear why stuffed animals are forbidden in prison. Maybe they can be turned into weapons? Maybe fights break out over inmates stealing them? It would seem that a prisoner clinging to his beloved animal could give rise to shower issues. But if a guy gets his spiritual guidance from his teddy, what’s a court to do? Continue reading →

In what may well be the worst-reported story ever, PIX11 starts with the one piece of news it has, that after three years, Brian Solano was cut loose.

He’d been held on Rikers Island for three years for a murder he insisted that he did not commit. Now, suddenly, Brian Solano, 24, has suddenly and inexplicably been released from jail, with no official explanation.

His private investigator points out, however, that the release has come shortly after he produced evidence that very strongly indicates that someone other than Solano committed the crime.

The change seemingly happened out of the blue.

So many questions and not even a hint of an answer in sight. The one question that isn’t is what somebody decided was worthy of note, that it “seemingly” happened out of the blue. That’s how it happens. Everything is bad until it isn’t. Same with good. After having been remanded for three years awaiting trial before Justice Steven Barrett, Solano was ROR’d.  Continue reading →

The Bronx may be the harshest testing ground in the nation, so if Robin Steinberg* could prove it works in the Bronx, you can bet it will work in Tulsa. And it matters, because as co-founder of the Bronx Freedom Fund, David Feige, says, channeling Newton:

A body incarcerated stays incarcerated. A body free stays free.

Bail. The ramifications of being poor in the legal system are manifest. Losing jobs, apartments, cars, children, education, all because a defendant can’t make bail on a misdemeanor is the foremost driver of guilty pleas. It has nothing to do with being guilty, but with getting out of jail as quickly as possible. When we speak of the crime of poverty, this is where it happens. Robin is doing something about it.

In the last 10 years, a small charity called the Bronx Freedom Fund has donated bail money to thousands of poor New Yorkers charged with crimes, freeing them from jail and helping them avoid the dispiriting delays of backlogged local courts as they wait to go on trial. Continue reading →

A call came in from an unfamiliar cellphone number. I grabbed it, and it was a documentary film producer. She told me that she got my name from Ron Kuby. That was my first clue. Ron and his partner, Bill Kunstler, represented Darryl Cabey, one of four young men who were shot by Bernhard Goetz in 1984. That was when I met Ronny and we became friends.

My partner, Howie Meyer, and I represented one of the other young men, Troy Canty. Cabey was the most sympathetic of the four, having been paralyzed by Goetz. Canty was the least sympathetic, having been the kid who asked Goetz for money on the subway, the kid who pointed the mythical “sharpened screwdriver” at Goetz.

Howie has since passed away. Bill too. It’s now just Ronny and I, the surviving lawyers*. The producer, in a cold call, wanted to know things, starting with where Troy Canty is today. I told her I have no clue. It was surprising to someone who today viewed this monumental case, a case with lessons and messages that deserve to be remembered and retold, that someone intimately involved wouldn’t have followed this closely forever, but the truth was that we did what we could to help Troy Canty survive the nightmare, change his life for the better and then, well, life moved on.

At first, Troy Canty enjoyed the attention that engulfed him after he and three other teen-agers had been shot by Bernhard H. Goetz in an IRT subway car, Mr. Canty’s lawyer said yesterday. Continue reading →