It began with the misbegotten Whren decision. when the Supreme Court broke through a wall that had, until then, connected your life to some small semblance of truth. That was when the Court rationalized away the need for police to be honest and held the pretext car stops were lawful.

For the unfamiliar, this means that if the cops wanted to stop you for drugs, but lacked probable cause, they could manufacture a reason, like you turned without signaling, and use that to justify the stop. Given that it’s nearly impossible to drive any distance without committing a violation of some law, honest cops only needed a little patience. Dishonest ones, less so, since most of the violations require no objective evidence anyway, and any cop can make up an excuse at will. The Supreme saw no reason to discourage this, and passionate advocates for the children applauded as hard as they could, because there’s always a crime that must be stopped.

But the next step in the process was a little more shocking, because the Court believed that it had already given cops carte blanche to stop motorists at will, and yet dishonesty wasn’t enough.* Despite handing cops the ability to say “I observed the defendant change lanes without signaling,” a claim that couldn’t be objectively proven or disputed, and so would prevail every single time, cops kept coming up with reasons for stops that were legally wrong. So the Court fixed the problem in Heien v. North Carolina, where they extended the bounty of dishonest by adding in stupidity. Continue reading →

In the en banc majority opinion, the name “Kerr” appeared 13 times. That’s why. The underlying dispute harkens back to the Magistrates’ Revolt, where some mags refused to sign off on warrants for computers because the government neglected to mention what they planned to do about the problem of all that evidence seized for which no probable cause existed, that failed to meet the particularity requirement.

Volokh Conspirator and computer crime scholar extraordinaire, Orin Kerr, argued that it fell under the most beloved of legal theories, “no harm, no foul.” (Yes, I’m being just a wee bit sarcastic here, Orin. Cut me a break, will ya?)  His point was that there was no provision for the mags to look beyond whether probable cause existed, and whatever collateral problems arose from the excessive seizure could be remedied post hoc, when evidence came before the court after the search and seizure were done.

As an example of how this should, and actually does, work, he noted Judge Denny Chin’s opinion for the majority of the panel in United States v. Ganias.

The Second Circuit has handed down a very important new Fourth Amendment case, United States v. Ganias. In an opinion by Judge Chin, the court held that the government violates the Fourth Amendment when it indefinitely retains computer files that were seized pursuant to a search warrant but are not responsive to the warrant.

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In the context of the debate over finality in habeas challenges to convictions, Judge Richard Kopf let on to a little inside baseball in the backroom of the federal courthouse.

Habeas corpus cases attacking the decisions of state courts swallow up a large amount of federal judicial time and resources. Each year, more than 18,000 cases, or one out of every 14 civil cases filed in the federal district courts, are filed by state prisoners seeking habeas corpus relief, and more than 6,000 of these cases reach the courts of appeals.

While these are habeas petitions, the key here is the numbers.  Combine the volume of petitions with the quality of their thought and writing, the occasionally often insane arguments and demands, and it’s a huge resource suck, not to mention a substantial burden to the staff who have to go through them.

At this moment, some of you will feel badly for the pro se clerk, while most will say, “suck it up, Judge Teacup,  No one forced you to take the job. That’s the price of having lawyers laugh at your lame jokes.” Continue reading →

My Memorial Day post from last year pretty much covered it. No need to repeat myself.

Stephanie West Allen sent me a link to a wikipedia page the other day to alert me to a new “thing” called “Constructive Journalism.”  At the top of the wiki page, it read, “This article has multiple issues.”  That was an understatement.

This article is written like a personal reflection or opinion essay that states the Wikipedia editor’s particular feelings about a topic, rather than the opinions of experts.

Why? Because it was front loaded with malarky.

Constructive Journalism is an emerging domain within journalism that is slowly getting grounded within academia and involves the field of communication that is based around reporting positive and solution-focused news, instead of revolving around negative and conflict-based stories. It aims to avoid a negativity bias and incorporates findings from positive psychology research to produce novel frameworks for journalism.  Continue reading →

Andrew Domino has a few things to be thankful for. After 80 days in the clink in Frisco, his case was dismissed.  That there was evidence that the accusation against him was a lie. But most importantly, that it happened in San Francisco.  That’s because the Public Defender there is Jeff Adachi. That’s because his office is adequately funded. That’s because his staff is good. No, excellent.

From the Public Defender’s press release:

Andrew Domino, 25, was released from San Francisco County jail Tuesday after prosecutors dropped all charges against him. He lost his job and parental rights during his incarceration, said his attorney, Deputy Public Defender Eric Quandt.

Domino’s legal saga began Jan. 30, when his then-girlfriend reported he grabbed her throat during an argument. Police noted that the girlfriend had no signs of injury and declined medical treatment. Domino was arrested for misdemeanor domestic violence but remained out of custody.

Eight days later, the woman went to police with terrifying text messages she claimed were from Domino, including threats to tie her up naked and beat her to death in the back of a public housing complex, and to kill their infant child.

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Eastern District of New York Senior District Court Judge Frederic Block is something of an enigma. In his book Disrobed, he straddles a fence between boldness and, well (and I mean this in the nicest possible way), cluelessness.

While Judge Block tells this story to show his boldness, fairness and concern, stepping up to reveal impropriety, it inadvertently reveals that he was totally unaware of what was happening around him. Given that this was well-known by every criminal defense lawyer in the county, it’s disconcerting that he had no clue until he read about it in the paper.

It’s as if he means well, but the entire world happens around him and, until someone smacks him in the head about it, just doesn’t register. What makes this even more astounding is that Fred Block, the lawyer, was the guy who won Clayton, giving rise to the motion for dismissal in the interest of justice. It was a huge win, a great win. And Fred Block did it.

He’s been a federal judge since 1994, when President Bill Clinton nominated him to fill Eugene Nickerson’s seat, so it’s not as if he’s just discovered that sentencing is part of a federal judge’s job.  Yet, his decision in United States v. Nesbith seems to reflect an epiphany. Continue reading →

Nicholas Kristof, the noted racist and sexist token neocon columnist at the New York Times, tried a thought experiment.

In a column a few weeks ago, I offered “a confession of liberal intolerance,” criticizing my fellow progressives for promoting all kinds of diversity on campuses — except ideological. I argued that universities risk becoming liberal echo chambers and hostile environments for conservatives, and especially for evangelical Christians.

As I see it, we are hypocritical: We welcome people who don’t look like us, as long as they think like us.

It’s rare for a column to inspire widespread agreement, but that one led to a consensus: Almost every liberal agreed that I was dead wrong.

“You don’t diversify with idiots,” asserted the reader comment on The Times’s website that was most recommended by readers (1,099 of them). Another: Conservatives “are narrow-minded and are sure they have the right answers.”

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The remake of Ghostbusters with four women in the lead roles gave rise to a backlash because of its politically correct casting, which was then exacerbated when it was hooked to Hillary Rodham Clinton’s “woman card” candidacy.

To the surprise of Sony, Ms. DeGeneres announced on May 17 that her talk show had booked Mrs. Clinton — a friend, political ally and repeated past guest — to appear Wednesday on an episode for which she had already scheduled the “Ghostbusters” stars Melissa McCarthy, Leslie Jones, Kristen Wiig and Kate McKinnon….

But the not-quite-joint appearance came as less-than-welcome news to Sony, whose marketing team has been fighting to tamp down what it sees as a misogynistic, Internet-based assault on the movie. The first trailer for the new film, released in early March, became the most disliked trailer in YouTube history after a coordinated campaign by a group of mostly male naysayers.

Sony wants its movie to make money. If it can trade off the current trend of gender politics, great. After all, why else would they cast four women? But that doesn’t mean they believe in the political statement being imposed upon its movie, or that they want the movie to be inextricably connected to the candidacy of a woman for president. Continue reading →

Got a call from a law prof who was considering bringing a Qui Tam action (whistleblower suit) against a New York 18-B lawyer.  Section 18-B of the County Law provides for private lawyers to represent the indigent and be compensated by the county.

She told me of the things this lawyer did, pretty outrageous but for the fact that this was a common, bordering on pervasive, problem.  This shocked the prawf, who asked why other lawyers and judges don’t end this atrocity, which is not only tantamount to stealing, but extremely damaging to the client. The short answer is because lawyers don’t want to rat out someone on their team. Sometimes the thief is a friend. Sometimes he’s just a nice guy, aside from the fact that he’s a thief or incompetent.

And then there is the best, and worst, excuse: other lawyers know. Judges know. If they say nothing, why should a lawyer on the same team? Why should someone on the same side evoke the ire of his teammates when others don’t bother?

A few years ago, then-NACDL president Lisa Wayne wrote about this in the Champion, where she decried criminal defense lawyers being critical of their “brothers and sisters”: Continue reading →