Mention “sexual predator” and images of someone sitting on a park bench, eyeing little girls with bad intent, immediately come to mind. But then, that’s whom they want you to picture, because that’s the evil-doer for whom laws like the sex offender registry are intended. Not the 11-year-old boy caught in its web.  See how the mind plays games?

And then there’s teen sexting, one of those really poor ideas that has nonetheless caught fire, kids being kids, and which lovers of criminalization refuse to condemn, despite the natural and obvious consequences. Caught between inconsistent arguments of gender politics, they thread the needle between sexual agency, the right to do stupid things, and victim blaming, that no one is responsible for doing stupid things. The upshot is to criminalize the outcome, since someone must pay.

Amy Adele Hasinoff, in a New York Times op-ed, writes about the unanticipated criminal, the sexting teen.

TEENAGERS who sext are in a precarious legal position. Though in most states teenagers who are close in age can legally have consensual sex, if they create and share sexually explicit images of themselves, they are technically producing, distributing or possessing child pornography. The laws that cover this situation, passed decades ago, were meant to apply to adults who exploited children and require those convicted under them to register as sex offenders.

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District of Massachusetts Judge Dennis Saylor was patient and thorough.  With an opinion running 89 pages, maybe a little too thorough.  When a judge finds it advisable to include a table of contents in a decision, one begins to curse the creation of word processing software.  If the Supreme Court could decide Brown v. Board of Ed. in 12 pages, well.

To save you from reading the first 60 pages, the short story is that there was a sexual relationship between two gay men that eventually ended. A couple years later, after one took a university “sexual assault training course,” he decided he had been raped.  The “victim” submitted his two sentence complaint:

Starting in the month of September, 2011, the Alleged violator of Policy [John] had numerous inappropriate, nonconsensual sexual interactions with me. These interactions continued to occur until around May 2013.

Brandeis cranked up its finely tuned disciplinary machine, carefully crafted in 2014 to comply with the outcome demanded by the Department of Education, Office of Civil Rights, and branded the accused a sexual predator.  As Judge Saylor explains, the disciplinary mechanism had few moving parts: Continue reading →

There is a twitter account called @StopTrumpAtEmory making moderately ridiculous demands. I’m assured by a reliable source that it’s a parody account, but Poe’s Law applies.  Some “demands” are obviously satirical, but other demands are in earnest. If one was to craft a parody of the absurdity of student demands, it would look much like marginalized and oppressed students of Harvard Law School.

What stands out is that students are making demands. Demands? By what power do they think they are in a position to make demands? There is the tacit “or else” that floats behind a demand, that if you fail to accede to a demand, there will be a consequence.  Do the students at Harvard Law School think that if they don’t get their way, Harvard will fall into the Charles?  Lose its panache? Burn through its endowment until it goes bankrupt?

What, kids? What power do you have to back up your demand? What is the “or else” if your school, your dean, your professors, your mommies, just say “no”?

The answer, of course, is that they believe in the righteousness of their cause, and the tacit threat is to reveal that their schools, deans, professors and mommies are racist, or sexist, or enablers, or whatever bad word applies. The students’ clout comes from their self-assessed authority to deem whomever fails to comply the appropriate flavor of evil. Continue reading →

Sit down, Harvard Law School students. I have something to tell you, and it’s going to make you sad. You are privileged. You are as privileged as it gets. Maybe your parents, your friends, your relatives, suffered from racism, sexism, whatever -ism gets your motor racing, but not you.

You beat the system. You will graduate from Harvard Law, provided you don’t fuck it up along the way, and the world will be your oyster. You will have a job. Not just a job, but a job that will pay you oodles of money, far more than you’re worth, if you decide to go in that direction.

If you want to change the world, you’ll get a job doing whatever flavor of social justice tastes good to you. Or a clerkship! And maybe, just maybe, you will find yourself in front of the Senate some day explaining how baseball works.

Whatever. You won. You got the brass ring. You are privileged. Continue reading →

We’re up to our neck in victims these days, but one for whom few tears are shed is Harper Lee’s protagonist in To Kill A Mockingbird, Atticus Finch.  To some extent, he served as an inspiration for generations of young people to go to law school, to become lawyers.

What distinguished these young people from the law school matriculants of today?  They were smart. They chose to join a still-vibrant profession. They passed the bar exam on the first try, second at worst. And when they learned that the real practice of criminal defense bore no similarity to what their law school prof taught them, getting their butts kicked for all the wrong reasons on a daily basis, they again turned to Atticus Finch to remind them of why they should get up the next morning and fight again.

So why tear this character apart?  Katie Rose Guest Pryal explains at Quartz:

As I’ve said before, the world does not need more lawyers like Atticus Finch. He’s a flawed inspiration for attending law school. He took on a case he didn’t want to take because no one else would do it and because his client, Tom Robinson, was not only righteous; he was obviously innocent. Then, Atticus slut-shamed an abused, impoverished girl to get his client off. Helped along by Gregory Peck’s steadfast portrayal in the beloved Hollywood classic, Atticus Finch, the lawyer-hero of Harper Lee’s To Kill a Mockingbird, has been inspiring law students for decades.

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A decision just issued from New York Acting Supreme Court  Justice L.B. Sullivan that might make Donald Trump’s hair stand up. Via Eric Turkewitz, the order comes as a lagging indicator in Trump’s lawsuit against Univision for its decision not to air the Miss Universe Pageant.

In reaction, Trump sued Univision under the legal theory of quia non potest.  Turk wasn’t impressed:

At the time it happened, I ripped the defamation claim to shreds as frivolous. As didPopehat, albeit more colorfully than I (Donald Trump’s Lawyers Don’t Know Or Don’t Care What Defamation Is)

Now, it appears, a New York judge agrees. Even though the case was removed a couple weeks later to federal court, it was filed in New York’s Supreme Court (our main trial level court). And because it was filed there, the court apparently retains jurisdiction over anything that happened while still under its roof.

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It’s hard for indigent defenders to keep abreast of the cutting edge training that’s needed to fulfill their critical societal function. They’re overwhelmed. They’re underpaid. They have little time on their hands to waste.  And yet, there are important, no, vital, things that they must be taught.

Fortunately, the newly formed National Association for Public Defense exists to vet the plethora of courses, CLEs, lectures and programs, so that trench public defenders’ time won’t be squandered on worthless stuff like “advanced cross examination” and “effective jury selection.”  Instead, they can focus their very limited time and attention on matters that go to the core of their function.

How Sanism Poisons the Attorney-Client Relationship in Criminal Cases

Sanism, because there are still -isms left unmentioned. And if you think this is, well, nuts. think again. Continue reading →

The call came in to the police. A 10-87 in progress, and mere moments before the evidence is gone forever.  But when a man takes revenge on a woman for her refusal to accede to rape, something must be done.

A man in Laholm, Hallan County in Sweden was reported to police because he farted after the woman he was with denied to have sex with him.

She reported the incident to the local police saying that his “revenge fart” disturbed her peace of mind.

The official report would, of course, read flatulens. because police reports are official documents and, obviously, this happened in Sweden. But in order to demonstrate a harm of sufficient magnitude to meet the elements of an offense, one question needed to be answered:  doesn’t a woman deserve peace of mind? Continue reading →

There is no law school more progressive, and no law dean who better embodies the politics of his law school, than Erwin Chemerinsky’s UC Irvine. It wasn’t accidental, but precisely what was intended, as UC Irvine Law was created out of nothing in 2006 with Chemerinsky at the helm with a mandate.  To his credit, Dean Chemerinsky built what he was charged to build, a “visionary” law school.

If there is anyone who can feel the blood coursing through the throbbing veins of passionate law students, it’s Chemerinsky, so if there is anyone capable of making sense of free speech on campus, he’s the guy.  And in the LA Times, he takes up the cause, imploring us to teach students, rather than mock or ignore them.

Teaching a freshman seminar on freedom of speech on college campuses has made us aware of the urgent need to educate the current generation of students about the importance of the 1st Amendment. From the beginning of our course, we were surprised by the often unanimous willingness of our students to support efforts to restrict and punish a wide range of expression. Not a single student in the class saw any constitutional problem with requiring professors to give “trigger warnings” before teaching potentially disturbing material.

Well, if they’re arriving at Harvard with “minds of mush,” what did you expect at UC Irvine? It’s not Stanford.  Though it is, frankly, shocking that not a single student took issue with restricting and punishing “a wide range of expression.” How could this be? Continue reading →

The Supreme Court’s plurality opinion in Luis v. United States may have come out right, but it did so in a way that should scare the crap out of a criminal defense lawyer.  The main opinion, by Justice Breyer, with the votes of CJ Roberts, and Justices Ginsburg and Sotomayor, holds that the government cannot deprive a criminal defendant of the use of untainted funds to defend herself from prosecution.

The property at issue here, however, is not loot, contraband, or otherwise “tainted.” It belongs to the defendant. That fact undermines the Government’s reliance upon precedent, for both Caplin & Drysdale and Monsanto relied critically upon the fact that the property at issue was “tainted,” and that title to the property therefore had passed from the defendant to the Government before the court issued its order freezing (or otherwise disposing of ) the assets.

By balancing the government’s interest in recovering the “loot” against the defendant’s Sixth Amendment right to counsel, they held the defendant wins. That this was even a question, given that the “loot” was untainted, requiring the Supreme Court’s intervention is the only thing surprising about the opinion.

And, indeed, it falls to Justice Thomas to state the obvious. Continue reading →