When Ninth Circuit Judge Alex Kozinksi’s article in the Georgetown Law Review broke, my inbox was flooded.  Criminal Law 2.0 seemed to be every criminal defense lawyer’s dream, a list of the failed tropes that undermine the legal system, put innocent defendants in prison, and challenges the widespread false assumptions that have permeated public discussion of the criminal justice system.

And here it was, from the hand of a Circuit Judge, no less, and in a law review. Could it get any better?

At Volokh Conspiracy, Judge Kozinski’s former clerk, Eugene Volokh, is serializing the article, beginning with the preface:

Although we pretend otherwise, much of what we do in the law is guesswork. For example, we like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. There is reason to doubt it, because very few criminal defendants actually go free after trial.

Does this mean that many guilty men are never charged because the prosecution is daunted by its heavy burden of proof? Or is it because jurors almost always start with a strong presumption that someone wouldn’t be charged with a crime unless the police and the prosecutor were firmly convinced of his guilt? We tell ourselves and the public that it’s the former and not the latter, but we have no way of knowing. They say that any prosecutor worth his salt can get a grand jury to indict a ham sandwich. It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape.

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Since the suicide of Kalief Browder, fixing the system has become all the rage in New York.  There’s the speedy trial piece, but there is also the bail piece, as reflected in this New York Times editorial.

Imagine, for a moment, that you are accused of a misdemeanor or even a nonviolent felony in New York. The judge sets a low bail, maybe $500, but even that is too much for you or your family. So you sweat it out in New York City’s hellhole of a jail on Rikers Island, waiting for a trial months, even years away. Plead guilty and the terrors of Rikers are behind you. But now you have a criminal record, which could damage your future.

Ah, to be an editor at the Times, where one is constrained to “imagine” such things.  It’s much better to picture it in one’s mind than to be one of the thousands of people who live it every year.

New York Mayor Bill de Blasio’s administration this week announced a promising plan to help some low-level offenders escape this Dickensian trap. The plan would allow supervised release without bail for defendants who are not a danger to the community or at risk of flight. This is an important move in the right direction. But eventually, it will take Gov. Andrew Cuomo and the State Legislature to reform a statewide system that is unfair and increasingly at odds with other judicial systems around the country.

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Ultimately, the claim against a male student, imaginatively called “John Doe” in the proceedings, came down to whether he “digitally penetrated” Jane Roe’s (not necessarily her real name) vagina.  John said no, so he lost at the University of California, San Diego disciplinary hearing. Then he sued.

“While John stated during the hearing that he did not digitally penetrate Jane’s vagina, he abstained from providing additional information regarding the incident and what occurred around the time of the incident and the panel would have liked to hear more information from him,” the hearing panel wrote in its findings.

Can a guy remain silent? Sure. But unlike real court, the Fifth Amendment doesn’t apply to civil and administrative hearings as it would in criminal prosecutions. Silence can be used against you.  But what was John Doe confronting when he made the decision to say no more? Continue reading →

Dear Lee,

Congratulations on kicking the living crap out of Arizona’s anti-revenge porn law.  You did a great job getting it tossed. Like a boss, Lee.  Well done.

But Arizona’s law criminalizing revenge porn was fairly easy pickins.  It was so absurdly over-the-top that there really wasn’t much of a question, except to its advocates for whom no degree of unconstitutionality is enough to make them cringe.  It’s hard to see reason through the tears of advocacy, not that they would care anyway.

That’s not to detract from what you accomplished. The ACLU took up arms against a terrible law and crushed it. One bludgeon beating another.  I applaud you and your accomplishment. Continue reading →

Whether it’s a problem for us or them is the tacit heart of Orin Kerr’s fascinating question as to the limitations on seizures of digital evidence under a search warrant.  He does a great job of setting up the problem:

This article considers how the Fourth Amendment should limit the process of executing search warrants for digital evidence. Warrants for digital evidence are normally executed in two stages. First, agents enter the physical place to be searched and seize all computers. Second, agents conduct an electronic search for the responsive data described in the warrant. The two-stage process raises the prospect that warrants for digital evidence will be executed in ways that resemble general warrants. 

In the application for a search warrant, and in the warrant itself, there will be a description of the property to be seized together with a justification for why there is probable cause to do so.  The descriptions tend to be incredibly vague and backward, such as “all evidence of narcotics sales.”  Continue reading →

A friend called me a mean and hurtful name the other day: prolific.

Prolific. Like an all you can eat buffet. The food sucks but there is plenty of it. That’s me.

— Scott Greenfield (@ScottGreenfield) July 9, 2015

But that’s just me. I’m sure he didn’t mean to make me feel like that full chafing dish of eight hour old turkey tetrazzini.  I write. A lot. It’s what I do, my version of the dreaded “mindfulness,” if you will.

A lot of people (and I mean, a lot) either question me as to how I do it, express some degree of marvel at my output, or attack me as if I must spend all day and night doing this, because there is no way they could produce what I produce otherwise.  And even some friends smack me on occasion for writing too much: “I can’t read as much as you write. Would you just stop it already?” Continue reading →

Thinking back to the halcyon days when I went to college, the name by which we referred to the  campus police was “public safety” so that all of us would think of them not as law enforcers but as people in uniform who were there to help us.  Oh yeah, and they didn’t carry guns.

That’s all changed, as they are now police again, and well armed.  Like most college police, they have general law enforcement jurisdiction. When they arrest you, you go to real jail and real court.  When they shoot you, it’s with real bullets.  While we’re talking about rape and Title IX, nobody mentions the cross-over between the Disneyland of campus adjudication and the real world.  Except Ashe Schow.

Due process on college campuses has become passé, and even an impediment to justice — at least according to sexual assault activists. But police officers like Susan Riseling may be giving activists a leg up.

Riseling is the chief of police and associate vice chancellor at the University of Wisconsin-Madison, and recently told a conference audience that using the records from campus sexual assault hearings could be beneficial to police investigations.

“It’s Title IX, not Miranda,” Riseling said. “Use what you can.”

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As a student of the art of narcissistic rationalization, it’s often hard to divine what part of the religion of emotion drives otherwise ordinary people to feel compelled to put their feelz on display for all to see.  There is a bizarre belief, that such people ascribe to reason, that they are entitled to express their deepest feelings, coupled with the entitlement not to have anyone read what they’ve written and reply that they’re absolutely full of shit.

Go figure.  So when I stumbled upon a master’s thesis in narcissism, I took notice.  It began with a pedestrian effort in self-absorption.

I am tired of men thinking they are entitled to my attention because they find me attractive.

I am tired of men thinking I owe them something as a thanks for them finding me attractive.

I am tired of men reducing me to my attractiveness.

I am tired of being on display.

It goes on and on, its author apparently thinking very well of her own beauty. But it’s hardly new.  This gig was done by Lili Von Shtupp in Blazing Saddles, and Mel Brooks did a much better job of it.

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Soon after the subpoena was served on Reason Hit and Run for info about its commenters and their favorite brand of woodchippers, Ken White posted it at Popehat.  Everything then went dark, as the government obtained a gag order to silence Reason from disclosing anything about the subpoena.

Paul Alan Levy at Public Citizen wasn’t satisfied when the gag order was lifted, after news of the subpoena went viral.  That’s just not how Paul rolls, so he moved to unseal the papers.

I wanted to see the basis for requesting the gag order – the factual showings that supported its issuance – because the order itself was so cursory in reciting the statutory factors and saying that “one or more of [them]” was the basis for issuance. 

Velamoor’s initial response was unhelpful, but he later called me back to ask me to explain the legal basis for the demand; once he understood what the law is (and, presumably, he figured out that Public Citizen has a track record of litigating unsealing issues), he asked the court to unseal the application and sent it to me. 

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Nebraska Senior District Court Judge Richard G. Kopf tried something that no one else had tried before him. He tried to be real.  He tried to be transparent.  He tried to show us that the omnipotent people in robes sitting atop the bench were regular people, with foibles and ideas, doing the best they could. They had thoughts, feelings, aches, pains and happiness.

And I fear, this time he’s gone for good.  Watching the judge’s blog, he’s been through the highs and lows of the blawgosphere.  One little “STFU” to the Supreme Court and he had a bevy of lawprofs jumping down his throat.  But then, haven’t we all wanted to tell that to the Supremes at one time or another?

Then there was a misunderstood joke, a symbol of generational differences that many couldn’t, refused to get past.  What it showed was the inflexibility of so many on the internets.  Judge Kopf took it all in good humor.  If he showed nothing else, it was the humility of the power he wielded, never ramming the fact the he was a federal judge and you weren’t down your throat.

He ended every comment with the words, “all the best.”  It wasn’t that he had to, but he wished that to his fans and detractors alike.  Rich was a good guy. Continue reading →