Within seconds of the Umpqua Community College killings, the same calls rang out for gun control under the mantra, “this must stop.” Jess Gabel Cino asked whether we can finally stop the debating, a rhetorical question if ever there was one.  Across the nation, people manned their usual battle stations for the same fight that follows every tragedy involving guns, but particularly mass school shootings.

As a New Yorker, I have the typical city slicker’s distaste for guns. I don’t have one. I don’t want one. I am not a fan of guns. No need to explain why I’m wrong. It’s my choice, and, unlike so many people on so many issues, I do not fancy myself the arbiter of right and wrong for everyone else. Indeed, the arguments over guns have been enunciated ad nauseam. The battle lines are as clearly drawn as they could possibly be.

But when I expressed a sentiment that, whether those of us who have no desire to hold cold steel in our hands like it or not, the Supreme Court has held the right to keep and bear arms is a fundamental individual right in D.C. v. Heller, the backlash surprised me.  I was immediately “unfollowed” on the twitters by a big bunch of people who deeply favor some constitutional rights and deeply hate others. Continue reading →

Today is the First Monday in October, when law profs and lawyers obsess over what nine old guys and gals have to say about the law, even though little of it ever filters down to the trial courtrooms where real people’s lives are laid to waste.  And in honor of the day, First Amendment scholar Ronald K.L. Collins has given up his soapbox at Concurring Opinions to another prawf, Joel Gora of Brooklyn Law School.

Notably, there aren’t a lot of law professors willing to stand up for the very unpopular view these days that free speech is a sufficiently worthy concept that it should not be reinvented whenever hurt feelings are at risk.  I’ve been told by more than a few professors that they would really like to speak out about some of their colleagues, and their flagrant distortion of the law in support of their advocacy, but fear that the climate in the Academy would result in their being ostracized.

I’m not sympathetic to their concerns, as remaining silent in the face of faux scholars spewing phony analysis is how people become stupider.  On the other had, when a prawf shows the fortitude to show intellectual honesty, even when it’s contrary to their political leanings, it should be noted and appreciated. This is particularly important at a time when law schools and gaggles of prawfs happily don hot pants to sell their wares to an unsuspecting public.

Gora has the guts to call bullshit. That makes his words worthy of note, as he is an unabashed supporter of the First Amendment. Continue reading →

Did they ask for a quick look-see? Not from the description given by the mayor of Stockton, California, Anthony Silva, who was returning from a mayor conference in China to the “land of the free.”

Upon his return home on Monday, Silva was briefly detained by Department of Homeland Security agents and had his belongings searched, he said.

“A few minutes later, DHS agents confiscated all my electronic devices including my personal cell phone. Unfortunately, they were not willing or able to produce a search warrant or any court documents suggesting they had a legal right to take my property. In addition, they were persistent about requiring my passwords for all devices,” Silva said.

Warrant? At the border? Apparently, no one told Silva that border searches aren’t subject to the Fourth Amendment.  Then again, they similarly aren’t subject to seizure of a person, to refuse to allow someone to leave, absent their consent to seizure of computers and cell phone, or disclosure of passwords. Continue reading →

As the wagons are circled around a small cabal that will emote without anyone in earshot to say an unpleasant word at New York Law School, another announcement was made in conjunction with the First Annual Tyler Clementi Internet Safety Conference:

The product of a collaboration between NYLS and the Tyler Clementi Foundation, the Institute is a full service education and direct outreach initiative that, among other things, includes the only pro bono law school clinic representing victims of cyberharassment for free! (Emphasis in original.)

This comes from lawprof Ari Waldman at NYLS, who invited questions. So I asked. Continue reading →

The devil is in the details is a truism, and certainly true of the Senate’s sentencing reform law.  That it’s bipartisan, a word rarely used in the past two decades, conveys a special meaning to advocates: this is the best you’re gonna get, as your champions of reform have surrendered to Chuck Grassley.  Take it or leave it.

And indeed, advocates of sentencing reform, such as FAMM, know when they’ve been beaten, and so they’re lining up behind this bill. We’re not privy to their kitchen table talks, but it’s impossible to imagine they don’t realize that this is a mutt. Still, a mutt is better than a dog that’s dead on arrival. Those are the compromises advocates tend to make.

But of the terms of the bill, the actual words that come into play in real courtrooms, with real defendants, in real life, are what the janitors of the law are left to clean up. And they are, indeed, a mess.

The New York Times, unsurprisingly, has given its blessing to this mutt bill, and in the process, has demonstrated yet again that it has no clue what’s in there. Continue reading →

Future crime?  Been there. Done that.  The adoration of empiricism has not only led to its uses in ways that inform us that “common sense” is nothing more than our own inexplicable prejudices packaged in an easy-to-use container, but its false gods as well.  No matter how long people have held dear to their assumptions, that doesn’t make them true.

But combine the good parts of empiricism with our belief that life can be reduced to binary bits and you end up with such ill-conceived notions as the Sentence-O-Matic 1000, reforms to hold people in custody longer because they’re empirically more likely to be recidivists, and the concept destroyed by Philip Dick’s 1956 sci-fi story,  Minority Report.

Of course, it’s already been done, so we’re told.

 Richard Berk, a professor of criminology and statistics at the University of Pennsylvania has developed software to predict which defendants on probation are most likely to commit murder or be murdered. Continue reading →

New York’s chief judges like to leave their mark on the system before they leave the job. Sol Wachtler’s mark was to distinguish New York’s greater respect for constitutional rights despite the Supreme Court’s watering down of federal constitutional rights. Judy Kaye was all about making jurors feel more comfortable about the burden, including eliminating exceptions for all the people who would love to be on a jury, but rarely get picked.

Jonathan Lippman ages out in December, and has chosen his cause: to end the bail disaster that leaves the poor in jail for lack of a thousand dollars, particularly when there is no good reason to hold them in the first place.  It’s a worthy cause, even if it could have been accomplished swiftly under New York’s existing law. Doesn’t anybody actually read the law anymore? Anybody?

As his term in office nears its end, Chief Judge Lippman has laid out his plan.  It’s a four-part plan:

First, he will appoint a senior judge in each New York City borough to review every misdemeanor case in which a defendant fails to pay bail. The review would take place within 10 days of arraignment to determine if bail should be reduced.

Continue reading →

Whenever something goes awry in how the police deal with a controversial situation, especially if its captured on video so it’s not readily deniable, the first line of defense is to claim that it can be fixed by training.  Training is another one of those magic words that make people think that the entire cop culture pivots on a few lectures. Yup, that’ll fix it.

And of the many police departments whose reputation for violence, deceit and impropriety have hit the news with unfortunate regularity, Chicago’s is right up there with the best of them. And it’s not just the failing of their beat cops, but those who are charged with investigating the beat cops.

So, dammit, Chicago plans to do something about it!

The agency that investigates Chicago police shootings is beginning a week of training led by a controversial psychologist who often testifies in support of officers who have shot civilians, WBEZ has learned.

Continue reading →

As Above the Law searches for new revenue streams, they will be throwing the Academy for Private Practice this coming weekend.  Yes, it seems kinda nuts in a batshit crazy sort of way, given the lack of speakers who have either created or maintained a successful private law practice.  But only an unpleasant person would get hung up on such details. Don’t be that guy.

In anticipation, Elie Mystal sent me a somewhat defensive email, asking if I would be canon fodder on his podcast with Joe Patrice, ironically called “Thinking Like A Lawyer.” That was awfully darned thoughtful of Elie, who I hasten to add is both a smart and very funny guy, though he anticipated that I wouldn’t be particularly interested in participating.  I’m really not a big fan of podcasts, considering that I find listening to them only slightly less pleasant than root canal.

But for my bud, Elie, how could I say no? I just had one tiny condition, that he write me a post. He hasn’t spoken to me since.  Nonetheless, that’s not going to stop me from helping out my pals at Above the Law, because that’s the kind of swell guy I am.  So, had I happened to wander into one of their APP presentations, and had somebody yelled out, “yo, Greenfield, go up there and say something,” this is what I would have said:

How many of you have ever tried a case to verdict before a jury? Continue reading →

The other day, the Beast of Brooklyn, Ken Womble, argued that the tide is turning, that while there may be a long war ahead of us, we’re winning the war on police, or at least not losing as badly as we have been up to now.

Prosecutors, judges and politicians turn a blind eye to reality when it comes to police.  Prosecutors would rather let an innocent person rot in jail than stand up to the police.  Many judges still think that questioning the word of a police officer is tantamount to blasphemy.  Politicians cower before the political power of the police department, continuing to give cops everything they ask for despite decades of falling crime rates.

So, without accountability, how are we making progress?  Through information.  Five years ago, whenever the discussion turned to police misconduct or corruption, the inevitable government response was that we were dealing with just a few bad apples. That tended to shut down the conversation. Today, it holds no water.  It has been swept away by a sea of Eric Garners and Tamir Rices.

Having been fighting this battle for a while, actually more than 30 years, it’s true that huge strides in accountability have been made in the past few years, largely as a result in the pervasiveness of video. It’s not that the same problems of police behavior, force and violence haven’t been happening forever, but that they were dismissed until video made that difficult. Continue reading →