It’s not that Congress doesn’t have a sense of humor.  After all, who else would think it’s a laugh-riot that defendants are acquitted after trial of a crime and get sentenced for it anyway and yet omit it from laws with names like the Smarter Sentencing Do It For The Children Act. But even Nino Scalia called bullshit when it came to the residual clause of the Armed Career Criminal Act.

In his opinion in Johnson v. United States, the Court raises a question that even law nerds struggle to embrace:

Under the Armed Career Criminal Act of 1984, a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a “violent felony,” a term defined to include any felony that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B). We must decide whether this part of the definition of a violent felony survives the Constitution’s prohibition of vague criminal laws.

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Maybe the press asked the wrong question when the subject was Anthony Graves’ murder conviction due to the misconduct of belatedly disbarred prosecutor Charles Sebesta.  What was the right question?

In October 2010, former Harris County prosecutor Kelly Siegler appeared at a courthouse press conference in Brenham and declared another prosecutor’s misconduct in a 1992 capital murder case “the worst I’ve ever seen.”

Compared to what?

A visiting judge has accused former Harris County prosecutor Kelly Siegler of withholding evidence in the murder case against David Mark Temple, who was convicted of killing his wife in 2007, and has recommended that Temple be granted a new trial.

Temple was a former football star turned high school coach, convicted of murdering his pregnant wife while having an affair.  Defended by Dick DeGuerin, Siegler was not inclined to risk losing. It was Continue reading →

This unsolicited email just arrived, and I can’t begin to tell you how excited it made me.

Scott,

I am very excited to announce the beginning of The Expert Institute’s first-ever best legal blog competition. From medical malpractice to intellectual property and criminal law, we’re creating the largest and most comprehensive ranking of legal blogs online today – and we want your blog to earn a spot on the list.

Everything you need to get started can be found here:

[Ed. Note: Link deleted because I can’t trust some of you yahoos not to use it.]

The best blogs will win well-deserved exposure to our monthly readership of more than 200,000 legal professionals, while the three blogs that receive the most votes overall will win cash prizes.

To participate, your blog needs to be nominated by your readers via the nomination form located on the page above. The nomination process is competitive, so the more nominations your blog receives, the more likely it is to be included in the contest. If your blog receives enough nominations, it will automatically be entered into the competition, at which point I will contact you with the good news.

Please feel free to reach out if you have any questions.

Best Regards,

Joe

—
Joseph O’Neill | Senior Associate, Marketing
E: [email protected] | P: 646-216-2339
75 Maiden Lane | Suite 704 | New York, NY 10038

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I admit it. I listen to the Trigger Warning podcasts made by “hick” Kansas lawyer Eric Mayer and “slick” New York lawyer Daniel Gershburg. Not just because I like them, but because they’re usually pretty funny. Sometimes, they intend to be.

But their latest podcast, coming off a lengthy, soul-searching hiatus about why I’m the only person other than their mothers who listens, presented a dichotomy in the profession that should scare the crap out of everyone, particularly those people who entrust us with their lives and fortunes.  Their subject?  Mindfulness.

The two law-talking guys approached the subject from entirely different perspectives, so much so that my sense is that they were talking about completely different things. And indeed, they were.

Daniel used his time to extol the virtue of mindfulness as an positive thing to do.  It was a generic view of the idea that engaging in activities like meditation and yoga is a sound and valuable way for lawyers to relieve the stress that builds up from their responsibilities.  Was this an issue? Continue reading →

Imagine organizing a protest, deep in the desert. Beautiful, natural surroundings, but not another person around for miles.  Does a protest with no one to hear it make a sound?  Well yeah, but it also doesn’t do much good. The point of organizing a protest, exercising one’s right of association, freedom of speech, to seek redress, is to get your point across to someone.

And that’s where the change in how Americans behave, and how our public infrastructure has changed comes into play.  We used to be a nation of small towns, with village squares, that would be the center of public life. Been to a village square lately?  If it even exists, it’s empty.

The reason there’s nobody there is because they’ve all gone to the mall.  Like the Mall of America in Bloomington, Minnesota, which is why a big protest was organized there before last Christmas.  And when the mall got wind of it, and Bloomington officials learned of it, things did not go well for the protestors. Continue reading →

When Stephanie West Allen sent me a link to a Vice post, it seemed to be yet another in those inane efforts to throw as many silly words as possible against the screen to justify trigger warnings in the absence of anything remotely resembling thought.  This one, by Ali Jaffe, argues that trigger warnings are “about sensitivity, not censorship.”

She begins by explaining the real significance of the Columbia University kerfuffle over Ovid’s magnum opus, Metamorphoses.

After a class at Columbia University read the poem, one student spoke out about her painful experience with the material as a survivor of sexual assault. Four students on the school’s Multicultural Affairs Advisory Board penned an op-ed for Columbia’s student newspaper, urging faculty to teach provocative or potentially upsetting material with increased sensitivity.

“As a survivor of sexual assault, the student described being triggered while reading such detailed accounts of rape throughout the work. However, the student said her professor focused on the beauty of the language and the splendor of the imagery when lecturing on the text… She did not feel safe in the class.”

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Deputy Jeffrey Guy was just doing his job.  Responding to a domestic violence call, he saw a guy.  A guy!  If that wasn’t suspicious enough, check this:

“As the gentleman walked by, he covered his head with the hood of his sweatshirt,” said Rodi.  “Trying to conceal his identity.”

It’s not that Captain Joe Rodi has miraculous mind reading skillz, knowing exactly why this guy, whom he calls a gentlemen but he was being insincere, covered his head with his hood.  Cops know why people do stuff. Cops know stuff. Mad, mad skillz.

So Guy did what any empathetic, self-respecting cop would do.

Deputy Jeffrey Guy beat Antonio “Tony” Martinez with a metal baton, sprayed him with pepper spray, then handcuffed him and held him at the Vista Sheriff’s Station for five hours without letting his father see him.

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There is no short word or phrase that captures the phenomenon, but it repeats itself over and over. Yes, that’s George Santayana banging his head against a wall, because we never seem to learn.  And from the front page of the New York Times, another example appears.

In December, Mr. Anderson met a girl through Hot or Not, a dating app, and after some online flirting, he drove to pick her up at her house in Michigan, just miles over the state line. They had sex in a playground in Niles City, the police report said.

That sexual encounter has landed Mr. Anderson in a Michigan jail, and he now faces a lifetime entanglement in the legal system. The girl, who by her own account told Mr. Anderson that she was 17 — a year over the age of consent in Michigan — was actually 14.

The boy was Zachary Anderson, age 19, and generally a pretty ordinary kid. And now he’ll be a registered sex offender for life. Why life? Because they couldn’t make it longer. Continue reading →

I refer to reddit often in the comments here, for people who are interested in criminal law issues but lack the background, education or knowledge necessary to have a firm grasp of issues of law. Plus, those who feel compelled to scream, “all cops are thugs” and similarly idiotic things. I tell them they would be happier at reddit, because I want them out of SJ.

But I do so because reddit offers a sounding board for everyone, not matter how smart or stupid, sane or batshit crazy.  What reddit offers is the freedom to find a place to express one’s views without the limitations of a curmudgeon like me or the finger-wagging prunes who want to tell everyone else how to behave.  It offers freedom.

Correction: It offered freedom. The interim CEO, Ellen Pao, has chosen to hitch her wagon, and with it, reddit’s, to political ideologues who are all about shutting down all sound that doesn’t please their ears, throwing out all staff that doesn’t appreciate the need to turn reddit into a marketing machine, and adding happy faces all around. Continue reading →

Has enough time passed since the joy of Obergefell v. Hodges has given way to fighting over who gets custody of the Barbra Streisand albums? Being all in favor of gay marriage under equal protection analysis, there was nothing negative to say about the outcome, and, indeed, the issue of gay marriage had, in my view, long since been decided when 36 states legalized it. It was here, regardless of what the Supremes had to say about it. Done deal. Get over it.

But now that marriage is available regardless of sexual preference, it’s time to consider a nasty little piece of the rationale that is most assuredly going to come back and bite us in the butt.  Dignity.  Justice Kennedy has been trying to stick “dignity” in wherever he can find a spot, and he did so again in Obergefell, to much applause.

But, you ask, isn’t dignity a good thing?  Who doesn’t like dignity?  Jonathan Turley treads gingerly over the problems with a right to dignity.

Dignity is a rather elusive and malleable concept compared with more concrete qualities such as race and sex. Which relationships are sufficiently dignified to warrant protection? What about couples who do not wish to marry but cohabitate? What about polyamorous families, who are less accepted by public opinion but are perhaps no less exemplary when it comes to, in Kennedy’s words on marriage, “the highest ideals of love, fidelity, devotion, sacrifice, and family”? The justice does not specify. Continue reading →