Category Archives: Uncategorized

Resolute Defenders Of Free Speech (Update)

For quite a while, there were only a few voices willing to take the heat for calling out the efforts of our favorite censorious shrews, Miami lawprof (but non-lawyer) Mary Anne Franks and Maryland lawprof Danielle Citron, to promote anti-revenge porn crimes.  They shamelessly lied (as opposed to “were mistaken”) to the public about the First Amendment because they had a goal to achieve, and only by promoting ignorance could they hope to achieve the level of legal stupidity needed.

The claim was that their anti-revenge porn crimes did not violate the First Amendment. The claim was a flagrant lie, but they were law professors, supposed scholars, so who could question them?  Trench lawyers? We’re not scholars, after all, and when it comes to the people upon whom we rely for deep thought, don’t scholars win?

In the beginning, Franks claimed that Eugene Volokh supported her law, and agreed that it was not unconstitutional. That was a lie, and Franks quietly dropped Eugene’s name from her promotion as if she never said it. By avoiding confrontation with anyone who would challenge or question her, she was able to continue to deny her lies each time she was caught. Continue reading →

2015 Jdog Memorial Best Criminal Law Blawg Post

This marks the 7th year of the Best Criminal Law Blawg Post, and there was a very serious question of whether the crim law blawgosphere would have the legs to make it this far.  So many of the blawgs that existed when the contest began have since gone dormant that it seemed, at the time, that there would be little left from which to choose.

As it turns out, there is not only life remaining in the criminal law blawgosphere, but some damn fine writing out there, as reflected in the nominations (as well as some truly excellent criminal law blogs that, inexplicably, didn’t muster a nomination but are still doing great work).

The nominations reflect the diversity and depth of thought that exist in the criminal law blawgosphere.  Unlike the shallow, often trivial and almost invariably wrong content proffered by mainstream web media, lawyers are providing actual and accurate insight rather than pandering to the bias and ignorance of the public.  It’s good to know there is still hope for the public to be able to find substantive information, even as most of the web does whatever it has to do to make a buck off clicks at the expense of sound information. Continue reading →

Hey, Hey, Hey: It’s Guilty Cosby!

The response, that Bill Cosby has never been charged, has reached its end of life. Not that people were buying, and now that he’s been charged, the only thing left to do is sharpen up the guillotine blade.  No matter what happens in the case, he has already been convicted by the court of public opinion.  There is no appeal.

On the one hand, the decade-old allegations of Andrea Constand were declined by prosecutor Bruce Castor in 2005. On the other, this just shows how rapes are under-prosecuted by patriarchal prosecutors.  Given the amount of smoke that now swirls around Cosby, those inclined to believe see no doubt, none, that the dozens of women now accusing him are “lying.”

cosby

But the question isn’t whether anyone is lying. The question is whether Bill Cosby gets the benefit of a trial before he’s convicted.  He’s taken on a real defense lawyer, Brian McMonagle, to replace the Cozen O’Connor dilettantes, and plans to fight.  But when it comes to rape, when it comes to Bill Cosby, does it matter? Continue reading →

Balko or Kerr: Reading Tea Leaves

At Volokh Conspiracy, Orin Kerr takes Radley Balko to task for a material omission, a headline that neglects to include the salient legal details of a holding by District of Kansas Judge John W. Lungstrum.

Radley Balko is getting a lot of attention for his provocative post “Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home.” It sounds crazy, right? Why would a federal judge think that drinking tea and shopping at a gardening store amounts to probable cause?

Fortunately, there was no such ruling.

Well, that’s technically true, as the decision was a grant of summary judgment to the defendants in a § 1983 case. The headline leaves out a critical detail, that the police field tested what “appeared to be wet marijuana plant material (leaves and stems)” found in the garbage of Adlynn and Robert Harte’s trash.  Not once, but twice, and both times it tested positive for THC. The Hartes, former CIA analysts, found themselves on the cops’ radar because Robert went to a hydroponics store that police believed to be frequented by pot growers. Continue reading →

Lessons Learned From Cleveland: The Tamir Rice Shift

There was no question that the Cleveland grand jury would return no indictments against Police Officers Timothy Loehmann and Frank Garmback for the murder of Tamir Rice.  And it didn’t.  The spin machine went into overdrive that day, with cop and prosecution apologists explaining what a terrible tragedy it was, but that it couldn’t be helped.

The lawyers representing Tamir’s family had done everything possible to create countervailing pressure during the course of the grand jury show, but they knew it would amount to nothing.  And afterward, there were heart-rending emotional appeals of the wrongfulness of the grand jury’s determination that were only slightly more illuminating than the cop swill.

And yet, there are worthwhile lessons to be learned from this debacle.  Foremost is that the public has been steadfast in holding to its ignorance of the mechanics and purpose of the grand jury.  The lies it’s been fed have worked to a shocking extent, using the rhetoric of transparency and fairness, words that are perpetually appealing to the American psyche, to confuse and mislead.  Continue reading →

An SJ Holiday: Free Man In Paris (Update)

I’m taking a little break to close out the end of 2015. SWMBO has asked me to put down the computer, and so I will. No mouse will touch my fingers. Instead, I plan to hold a café au lait (at least until later in the day) in one hand and anything I can find in a pâtisserie in the other.

And as has been my Christmas tradition, a little holiday cheer: Continue reading →

Diversity’s Mediocre Answers And Non-Answers

Chief Justice John Roberts asked a question during oral argument in Fisher II that offended many.

CHIEF JUSTICE ROBERTS: What unique perspective does a minority student bring to a physics class?

It’s an incisive question, which is why it caused such offense. I tried to answer it, though my response was unsatisfying to many.  In a New York Times op-ed, black astrophysicist Jedidah C. Isler offered her putative response, but it failed miserably. It wasn’t that her essay was bad, or wrong, but that it was completely non-responsive. When you have no answer to the question, dance around it, and she did. And readers made clear that she wasn’t a very good dancer.

Black students come to the physics classroom for the same reason white students do; they love physics and want to know more. Do we require that white students justify their presence in the classroom? Do we need them to bring something other than their interest?

Continue reading →

The Long Wait For #BlackLivesMatter (Update x2)

It’s not an entity like the National Association for the Advancement of Colored People, a name reflecting a very different time in America.  It has no legal existence, like a 501(c)(3), with a mission and leaders authorized to direct its actions. It’s just a bunch of people trying to achieve recognition of a problem. What that problem is, however, is a problem in itself.

Black Lives Matter began as a twitter hashtag following the killing of Michael Brown in Ferguson, Missouri.  To digital natives, a movement based on a hashtag may seem real, about as real as any virtual cause.  But it’s begun to fray at its edges for lack of leadership, definition and direction.  Like almost everything digital, it reveals the gaps between virtual and reality.

The series of deaths of black men and women at the hands of police, especially when captured on video, gave rise to the ability to show people, for whom the claims that law enforcement wasn’t doing as great a job as they kept telling us they were doing, that cops were murdering blacks needlessly, and in significantly disproportionate numbers.  This wasn’t just some wild complaint, playing the race card. There were real, honest-to-God, dead bodies of unarmed blacks lying in pools of their own blood.

Black Lives Matter was real. The complaints were real. The deaths were real. This could no longer be ignored by those who didn’t fear they or their children wouldn’t make it home for dinner. Our beloved protectors were murderers. This could no longer be denied or ignored by anyone of good conscience. We saw the pictures. Continue reading →

Cross: Murray Newman, The Prosecution Eventually Rests

Dec. 23, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Houston criminal defense lawyer, former prosecutor-for-life and Fault Lines contributor, Murray Newman.

Q. You interned with the Brazos County District Attorney in college, and went straight to work for the Harris County District Attorney after law school. You wanted to be a prosecutor. Why? Was it that prosecutors were the good guys? Was it to put all the bad dudes away? Were you saving the world?  Did you consider anything other than being a prosecutor? Were you a true believer?

A. I grew up across the street from the elected D.A. in our county and I remember that when he was prosecuting a capital murder case, the whole town was up in arms about it.  I thought what he was doing was so important and so cool.  I wanted to work on murder cases too.  I was a morbid kid, I guess.

I wanted to be an FBI agent pretty much until I was in college.  It just seemed bad ass to me. Ultimately that FBI agent idea gave way to being a prosecutor.  I didn’t think I was going to save the world, but I thought I would always be fascinated by criminal law.  I was right about that part.  It’s probably fair to say I was a true believer back then.

Q. Many baby prosecutors suffer from a grossly mistaken self-image that the reason they are treated so well by judges, they win so regularly, is that they’re just the greatest lawyers ever. Was that you?  Did you indulge the fantasy that it wasn’t because you were a prosecutor, but just a brilliant lawyer, that allowed you to enjoy great success in the courtroom?

A. In Houston, we start out trying misdemeanors for the first year or two, and the majority of those cases were DWIs.  Those cases are normally such toss ups that you are happy if you have at least a .500 batting average.  I think they sent us all to misdemeanor first to help break us of the notion that we were God’s gift to litigation.  When you finally get called up to do felonies, those are generally better cases and the ego starts developing with all of your wins at that point.

Yeah, I was probably guilty of having an overinflated sense of worth as a trial lawyer.  Getting the first “not guilty” on a felony case was a big kick in the crotch.  In retrospect, of all the felony cases I took to trial, only three or four of them were really tough cases for the prosecution.

Q. One of the benefits of being a prosecutor is that you get to try cases.  What was your first jury trial? Were you a master or a master of disaster?  Looking back, did you do a great job or do you cringe now at how you tried the case?

A. I actually tried my first case when I had a student bar card and was working as an intern back home in Brazos County.  It was just a simple DWI with a breath test refusal, but it was against the best defense attorney in town. He handed me my ass, but he told me that I did a good job, so I was proud.

I remember picking my first jury and basically announcing to the jury that I was scared shitless and pleading with them not to pick on me too bad. That’s kind of embarrassing in retrospect.  Since it was in my hometown, I think I knew about ten people on the panel.  Other than that, it wasn’t too bad.

Q. Prosecutors are given enormous discretion in how to deal with other people’s lives. Did you appreciate that as a young prosecutor?  Did you feel you had sufficient life experience, sufficient understanding of other people, that you were qualified to make life-changing decisions?  Did there come a time when you realized, “holy crap, if I’m wrong, I could destroy a human being’s life?”  Was this power exercised with humility or hubris?  Did there ever come a time when you realized the seriousness of your decisions, and started to question whether you might be wrong?

A. I think the thing that defense attorneys who were never prosecutors don’t get about the job is just how much prosecutors believe themselves to be the victim’s representative.  We typically didn’t look at it from the perspective that we were representing the State or playing with other people’s lives.  We looked at it like we were there to seek justice for the victim.  That’s where so much of the self-righteousness that is associated with the prosecutorial profession comes from.

None of us thought we needed more life experience because we knew what was right and what was wrong.  That’s all we needed to know.  In retrospect, the lesson that we might have learned from more life experience would have been to actually consider the other side of the story:  the defendant’s family, his circumstances in life, etc.  Theoretically, prosecutors know that Defendants are people too, but we are too busy wielding the sword of justice to worry about that.

There was a moment toward the end of my career as a prosecutor, where I prosecuted a gang leader who couldn’t have been more than 19 years old.  He had ordered two hits, including the murder of a 14-year-old kid and he was sentenced to life in prison.  As I was leaving the courtroom, the guy’s little son was running around in the hallway, and he ran up and hugged onto my leg.  I was a new father at the time, and I had just persuaded a judge to sentence this little kid’s dad to life.  I felt like shit.  There wasn’t any doubt that the kid’s dad was guilty, but the collateral damage weighed pretty heavily on me. It still does.

Q.  Plea bargaining is widely criticized for pushing innocent people into pleas, particularly when insisting on innocence could mean awaiting trial in jail when copping out meant going home. Did you give this much thought when fashioning plea deals?  Did you think more about the weakness of your case and possibility of losing than the possibility that a sweet offer could coerce an innocent person into pleading guilty?

A. I can’t really say that I gave it all that much thought, at least not that I recall.  I tried to be a prosecutor that would listen to whatever a defense attorney was trying to tell me. I’m not saying that I believed everything they said when they asserted innocence, but I don’t recall any incidents where I was saying “screw you and your innocence claims, perhaps some more time in jail while you can’t make bond will change your mind.”

I wasn’t scared of dismissing a case where I thought somebody was innocent, but I wasn’t a pushover, either.  All prosecutors will make lower recommendations on cases that they think are difficult to prove, but we usually felt comfortable in our own minds that the accused was factually guilty.  If we weren’t certain of that, we were told that we shouldn’t be making an offer in the first place.

Q. In 2008, you left the Harris County District Attorney’s office, under less than desirable terms. Or as you call it, when the Sith Lords took over. You weren’t quite ready to go, but a shift in management with the election of Pat Lykos, whom you didn’t support, put your head on the chopping block.  Were you surprised at how politicized your office turned out to be? Did you have any desire to go to the dark side, or as hard as it was to be turned out, did you really want to continue putting the bad guys away?  Did your former adversaries accept you as one of them? Was there any payback for things you did as a prosecutor?

A. I probably would have been a lifelong prosecutor if Pat Lykos hadn’t handed me my walking papers. I loved the job and I loved the people I worked with.  I knew that opposing Lykos during the election was an “all or nothing” proposition and that I would get fired if she won the election.  She didn’t disappoint!

I do think that the Lykos era was a drastic departure from earlier administrations because everything she did was so publicized.  Her administration invited media attention whenever they wanted an attaboy, and that is what led to the Office being more politicized.  I think that has continued after Lykos got voted out and I don’t think it’s good for the criminal justice system.  When you invite attention to all of your successes, you also open yourself up to more scrutiny of your failures.  I think that leads to more reluctance to dismiss tough cases.

The irony is that Pat Lykos probably did me the biggest favor of my life.  I think my life has a lot more balance and happiness in it now.  I like being my own boss. I like helping people who need it. Every once in awhile I will read about some really upsetting case and think, “Man, I’d love to be the prosecutor on that one,” but generally I don’t miss the job description all that much.

The thing I miss the most is probably the camaraderie with the other prosecutors, but I still see most of them.  The defense bar here could not have been more welcoming.  People like Dan Cogdell, Mark Bennett, Pat McCann, Pete Justin, Tyler Flood, Charles Thompson and a laundry list of others went out of their way to help me figure out everything.  I owe them all tremendously.  I must not have been too big of an asshole as a prosecutor, because I never have had anyone come up to me and say, “Now that you’re on our side, let me tell you what a prick you were as a prosecutor . . .” At least, I hope that’s the case.

Q. You started a blog, Life at the Harris County Criminal Justice Center,  around the time of Pat Lykos’ run for office. Why? What made you think it worthwhile to reveal the inside story of what was going on in your office?  When you started the blog, you did so pseudonymously. Did you think no one would figure out who you were?  How did that work out for you? In retrospect, was it a good idea or a bad idea?

A. I started the blog in 2008 when the D.A.’s Office was going through a huge scandal over some racist e-mails that our boss had sent.  I remember picking a jury and we had to address the issue of what the venire panel thought of our office.  It wasn’t pretty.  The media was bashing us right and left.  The initial intent of the blog was to offer some minimal type of rebuttal as to who we were.  The little description that I had back then (and still do) is “An insider’s guide to what is really happening . . . “ I didn’t think we were being treated fairly.

I wrote anonymously so that nobody would think that I was speaking on behalf of the D.A.’s Office.  For the first month or so, only my wife knew, but it didn’t take too long for my secret identity to be the worst kept secret in the courthouse.  When I finally officially announced my name on the blog, there were some attorneys who came up to me and said “I had no idea it was you!” and I was always stunned.

Although I think my personal blog has probably long outlived its usefulness, it had a good run in its prime.  I don’t regret it at all.  As a matter of fact, I’m proud of what it accomplished when it was more relevant.

Q.  After being ousted by Darth Lykos, you decided to open up shop as a criminal defense lawyer. Were you ready to start defending the people whom you had spent your career putting away? Was it just a job, or did you come to realize that there were two sides to the story, that they weren’t just the evil criminals prosecutors thought they were? When did you reach the point where you were good with the idea of being responsible for defending the accused rather than convicting them? What caused that change of perspective?

A. Being honest, I think I looked at defending people as just a business decision in the beginning.  I was trained to do criminal law and I was no longer a prosecutor.  It didn’t take a genius to figure out what the next step was.  I felt confident that I could do it on an intellectual level and I didn’t have any worry about doing it.  I knew the job description and I knew how to do it.  I don’t think I realized how internally responsible I would end up feeling for each client.  Even if I couldn’t solve “ALL” of their problems, that agonizing feeling of finding a way to help improve their situation somehow was unexpected.

I don’t think I anticipated how much I would come to really like my clients and care about how the story ended for them. I got to know their families and regarded them as friends. I think the change in perspective happens naturally when you have a client you like and realize that what the State is trying to do to them is bullshit.  Fighting for someone accused of something bonds you to them even more than the way a prosecutor bonds with a victim’s family, in my opinion.

Q. In 2013, you learned you had leukemia. How did that affect your practice, your life, your world?  You had kids, a family, a law practice that only supported your family as long as you were working, and then you had cancer. You underwent chemo, and came out the other end. Did that change you, your goals, your aspirations?  Did you wonder whether you made the right choices in life?  What happened to your practice while all this was going on?  And did you learn who your real friends were, as is so often the case when adversity strikes?

A. I got really really lucky with how low-grade my leukemia was, and that is something that will never be lost on me.  My doctors were great and told me that it was all going to be fine and I believed them.  I never had one of those “long examinations of my own mortality” moments.  I did have to miss some work but not all that much.  I kept it to myself with the exception of some very close friends and colleagues, because I knew I was going to be fine.  I didn’t want to be a complete attention freak when what I had was so much lighter than what others were going through.  Those co-workers that I did tell about it were phenomenal – especially Luci Davidson, who was there to help me with everything.  They covered cases for me and checked on me.  We were very fortunate that my wife had good insurance or we would have probably been bankrupt.

Q. You’re now seven years past the day you had to pack your bags and leave the Harris County District Attorney’s office. Do you miss it? Is there still a voice in your head that tells you to prosecute rather than defend?  Even though you are now solidly accepted within the defense community, is there still a soft spot in your heart for the prosecution? If you got a call tomorrow, would you return to the District Attorney’s office and get to work putting the bad dudes away?

A. I think I will always have a soft spot in my heart for the prosecution  Part of that is because I think that while some complaints about prosecutors are valid, I think many are not.  I may not always agree with prosecutors and individual things they do, but it isn’t like the profession should be abolished.  There are a lot of damn fine people and lawyers who choose that profession and they do it for the right reasons.  There will always be the power hungry ones that screw up the reputation of others (just like there are in any profession), but I hate to see the tendency to vilify a prosecutor just because you disagree with them.

I worked for a long time with some great people.  I do sometimes miss having all my friends right down the hallway of where I work.  Like I mentioned before, every once in a while I’ll see that case that I’d love to be prosecuting, but other than that, I’m happy where I am.  Once you find yourself free of a bureaucracy and doing your own thing, it is hard to want to go back to having a supervisor and explaining your every move.  Then again, I do keep getting remarried. [Ed. Note: Murray is on his third marriage, but swears this one will last.]

The Violence of the Computer Gangs

The one thing that could be said in favor of white collar crime is that while it usually involved vastly greater loss, it was only money.  Bernie Madoff never took out a competitor with a bullet. He ruined lives with a calculator instead. Whether this is better or worse is a matter of personal taste, but his victims and competition lived to tell about it.

Bill Bratton says that’s changing.

Local crews also have a new source of income. To an astonishing degree, crew members are learning the skills of credit card fraud — stealing with computers, embossing machines, and stacks of blank cards instead of resorting to robbery and burglary. Yet despite their migration to white-collar crime, they show no signs of becoming less violent.

And Colleen Long at the AP runs with this “new” threat: Continue reading →