Police body cams were going to fix everything. I began the “but for video” posts as it became clear that people, particularly judges and prosecutors, were now seeing what defense lawyers had been telling them was happening forever. Cops beat people. Cops killed people. Sometimes it was an excessive use of force. Sometimes, it was for no reason at all.

They always denied it happened, rejected what we told them. “Why would Officer Jones beat your client?” Hell if I knew, but he did. With video, we now know it happened. Not in every case. Not every cop. But some, and sometimes. It happens. It can no longer be denied. The question of “why?” was now better posed to the cop doing the beating or shooting rather than a demand of the defense to explain such a ridiculous and unprovable accusation.

Some thought the videos would cure the disease. They were certain that it would be the fix to this problem, because how crazy could a cop be to tune up a perp for kicks knowing it was being caught on video? Others, myself included, never believed it would be the penicillin panacea. It would help, perhaps alleviate some of the symptoms, but the disease would still fester. The First Rules of Policing would remain intact. Qualified immunity, union rules and the blue wall would protect them

As it turns out, it appears that body cams have done less than expected. Continue reading →

The Green Bag is an inside baseball thing for legal writers. It’s fun. It’s funny, and it’s pretty cool to be honored for exemplary legal writing. Even if it’s just a twit.

Exemplary Legal Writing

2016 Honorees

Our new panel of luminaries and sages has selected the following works as exemplars of good legal writing from 2016. All of them (except for the books) will appear in the 2017 Almanac & Reader. Congratulations to all. Continue reading →

During a keynote speech at Cato’s Criminal Justice at a Crossroads conference, former federal judge for the Middle District of Tennessee, Kevin Sharp, spoke of why he resigned his life-tenured post: he just couldn’t continue to impose outrageous sentences on defendants because the law stole his authority and forced him to do so.

Everyone in the room understood. Everyone in the room felt inspired by what Kevin Sharp had to say, and the personal hit he took by walking away. But for one person in the room, it wasn’t  quite good enough. There are things that can be done by a sitting judge that can’t be done by anyone else. By resigning, no one was saved. If Judge Sharp didn’t impose the Draconian sentence, someone else would. But Judge Sharp can raise hell about it. Kevin Sharp cannot.

Judge Jack Weinstein sits in the Eastern District of New York. He’s never going to be appointed to the Second Circuit or the Supreme Court. He’s got nowhere to go. He’s got nothing to lose. And he’s not going to waste his bench.

A federal judge in Brooklyn has told the city to prepare for a court hearing regarding the prevalence of lying by New York City police officers and whether the New York Police Department has done too little to discipline officers who testify falsely. Continue reading →

There is little question that it’s rude and offensive to disrupt a presentation, particularly one about civil discourse. If it devolves into conduct such as storming the stage, physically attacking a speaker, even grabbing a mike, then it can be prohibited, but based on conduct rather than speech. But absent prohibited conduct, can the speech be stopped?

The incident on Tuesday came at a panel discussion titled “What Is Civil Discourse? Challenging Hate Speech in a Free Society.” The event, held in a UCLA auditorium, was hosted by the university, the Los Angeles Times and the U.S. Holocaust Memorial Museum.

Speakers included the U.S. Holocaust Memorial Museum’s Edna Friedberg, UCLA law professor Eugene Volokh, Los Angeles Times Deputy Editorial Page Editor Jon Healey and Rachel Brown, executive director of Over Zero.

During the Q&A, a young woman decided that what she had to say was more important than what anyone else had to say. Continue reading →

As the opioid “epidemic” continues to be the driver of drug hysteria, and the drug dealers who sell to people who overdose are prosecuted not as dealers, but as murderers, the concept of murder continues to expand. First, it went from dealer to sharer. Now, an introduction to a connection is all it takes.

But Jamie Nelson, 34, was not the dealer who provided the fentanyl and heroin that killed Tracy Skornika in June. According to police, Skornika gave Nelson $50 to help her to find a heroin connection. Nelson took her to a dealer she apparently knew. Skornika overdosed and was found on her bathroom floor. She was pronounced dead three hours later at a hospital.

There’s nothing is this story that even suggests that Nelson wanted her friend dead. The Orlando Sentinel report on the case notes that Nelson cried when she found out Skornika had died.

That Nelson felt terrible, even cried, isn’t a defense to a murder. But then, that doesn’t answer the question of how her doing as a friend asked, introducing Skornika to her dealer, turns out to be a murder either. Continue reading →

There are two Codes of Conduct applicable to those who work in the federal judiciary. One is for employees and the other for judges. The Judicial Conference (the administrative governing body of the federal courts) has authorized its Committee on Codes of Conduct (the Committee[i]) to render advisory opinions about the judges’ Code, but only when requested by a judge to whom the Code applies.[ii]

I have enormous respect for the Committee, the members of the Committee, and the truly excellent work of the Committee. The Committee is comprised of 15 members appointed by the authority of the Chief Justice.[iii] The primary responsibility of the Committee is to issue confidential advisory opinions to judges regarding compliance with the judges’ Code. It toils in anonymity (most of the time), turning out thoughtful and confidential opinions very rapidly on a whole host of questions regarding the Code and related matters (like the issuance of certificates of divestiture[iv]).

There are two things one must understand about the Committee’s work. First, the Committee does not serve as the “ethics police.” Complaints against judges are handled through an entirely different and unrelated mechanism. See, for example, here. Second, the opinions of the Committee are advisory. While the judges’ Code is binding, the opinions of the Committee are advisory. Thus, every opinion of the Committee (of which I am aware) begins with this language: Continue reading →

In the good old days, a person could write a book and, if it wasn’t good for some reason, people didn’t buy it and it faded into meaningless obscurity. Good times. The problem for Laura Moriarty, who wrote a young adult book named “American Heart,” is that it was liked enough to be deemed worthy of a Kirkus Review, a pretty big deal.

When Laura Moriarty decided she wanted to write a dystopian novel about a future America in which Muslims are forcefully corralled into detention centers, she was aware that she should tread carefully. Her protagonist is a white teenager, but one of her main characters, Sadaf, is a Muslim American immigrant from Iran, so Moriarty began by diving into Iranian books and films. Moriarty explained via email that she asked two Iranian immigrant friends to read an early draft and see if Sadaf seemed authentic to them, and whether the language and accent fit  with their memories and experiences.

A friend of Pakistani and American descent who is a practicing Muslim gave additional feedback. Moriarty asked a senior colleague at the University of Kansas, Giselle Anatol, who writes about Young Adult fiction and has been critical of racist narratives in literature, to read the book with a particular eye toward avoiding another narrative about a “white savior.” And after American Heart was purchased by Harper, the publisher provided several formal “sensitivity reads,” in which a member of a minority group is charged with spotting potentially problematic depictions in a manuscript.

Continue reading →

Do Millennials fear freedom? Well, not you, of course, but those other Millennials.

Young Americans seem to be losing faith in freedom. Why?

According to the World Values Survey, only about 30 percent of Americans born after 1980 believe it is absolutely essential to live in a democratic country, compared with 72 percent of Americans born before World War II. In 1995, 16 percent of Americans in their late teens and early adulthood thought democracy was a bad idea; in 2011, the number increased to 24 percent.

Democracy hasn’t exactly been kind to Millennials. It gave them perpetual war on foreign soil. It produced the Great Recession. They came of age in a world that persisted in telling them that they were special, and if they only played by the rules, they would enjoy great success, only to learn that the end of the road was dead or dying. And then Darth Cheeto was elected, despite everything they had been told about social justice.  Continue reading →

For many of us who didn’t wake up to the criminal justice system on November 9, 2016, the elevation of former Southern District of New York United States Attorney Preet Bharara to progressive hero was like a bad joke. Preet? Seriously? As far as the newly-woke progressive left was concerned, his refusal to resign when Trump told him to made him an icon.

Did they have any idea how many kittens he kicked before? Did they even care? There are a lot of those beloved vulnerable and marginalized people of color who will spend the rest of their lives in prison because of Preet. And he’s your progressive hero?

Josie Duffy Rice calls out the “myth of the progressive prosecutor,” starting with Cy Vance.

Mr. Vance is considered one of America’s most progressive prosecutors and has the accolades to prove it. In 2015, he helped create the Institute for Innovation in Prosecution at the John Jay College of Criminal Justice. Two years earlier, Attorney General Eric Holder gave him an award for having developed a partnership between local youths and law enforcement aimed at reducing violence.

Certainly Eric Holder was a progressive hero, given all he did to eliminate junk science from the courtroom, reduce wrongful convictions and not execute innocent people, with his trusty sidekick, Sally Yates, at his side. Continue reading →

After some 400 jury trials, I have seen many attempts to impeach witness testimony – sometimes successful, sometimes not. There are many techniques one can use to impeach a witness with an inconsistent prior response. Trial lawyers tend to have their own techniques.

Here is a summary of what I think are best and worst practices:

• When impeaching, be nice, but firm, to the witness. Translation: Jurors do not like assh**e lawyers. You generally get more with honey than vinegar.
• There is one exception to the above rule. If the jurors think the witness is despicable, disgusting, or a pathological liar, increase the aggressiveness of the cross. The witness has essentially given you “permission” to be tougher and rougher with them.
• Do not attempt impeachment if the difference is insignificant or laughable.

Continue reading →