By way of explanation for his view that the prosecutors who appear in federal court in general, and in his courtroom in particular, are pristine and above reproach, Judge Richard Kopf offered his experiences.

* After 28 years as a federal magistrate judge and district judge, I have witnessed countless examples of Nebraska federal prosecutors playing it entirely straight up and doing so when they could have stood silent and no one would have been the wiser.

* While I do not want to slander most Nebraska state prosecutors who are entirely ethical, I have too often seen in habeas cases or heard (in the case of a wiretap) state prosecutors behaving badly.

* To the degree that Judge Kozinski, a judge who I respect greatly, believes there is an “epidemic” of Brady violations in the federal system, that has not been my experience here in fly over country.  As a result, I did not want my earlier post to be an implicit endorsement of the judge’s criticism of federal prosecutors for violating Brady.

To this, Judge Kopf reminded of his earlier explanation about why he believed cops most of the time, which was addressed here. Continue reading →

“You have to draw the line between your right as a citizen to privacy and a community’s right to live in a crime-free environment.”

“You can’t have them both.”

— Carrie Mills, International Brotherhood of Police Officers

When the flashbang grenade landed in Baby Bou Bou’s playpen, the Georgia SWAT team was ready with its excuses for why they had no choice:

Sheriff Terrell says the suspects are dangerous drug dealers who are known to be armed. Hence, the SWAT team, the no-knock raid and the flash grenade.

The “drug dealers are inherently dangerous and armed” mantra has been spewed for a long time now, reaching the point where it’s judicially taken for granted.  Drugs = danger, so therefore any measures that protect police in the heroic performance of their duty are acceptable.  No, more than acceptable, necessary. You can’t have police harmed, when all they’re doing is protecting society’s right to a crime-free environment. Continue reading →

If there was a list of tough gang-style rapper names to pick from, what would the chances be that the winning name would be “Tiny Doo”?  I mean, it just isn’t particularly manly, and worse yet, provides ample opportunity for potty jokes. Yet, that was the name under which Brandon Duncan rapped, and will be the name under which he could serve 25 years for being a gang killer.

Except he never killed anyone, unless you take this song too literally.  Via Gawker:

According to the San Diego County District Attorney’s office, Tiny Doo—real name Brandon Duncan—is a documented member of the gang that allegedly perpetrated the attempted murders. No one is alleging that Duncan fired a gun himself, bought the weapons, or was at the scene of the crime—that he had anything to do with the shooting at all, really. Continue reading →

The video of oral argument before the 9th Circuit in Baca v. Adams is making the rounds, and it is certainly worth watching for anyone interested in lying prosecutors and what happens to them.  Sidney Powell provides the story at the New York Observer.

In this case, the prosecution infected the case with false testimony–including by a prosecutor himself–over benefits given to a “cooperator” or a jailhouse “snitch.”

The entire program of “cooperation” is rife with problems. Prosecutors often put extraordinary pressure on the worst criminals, threatening not only them but their families. After completely terrifying the person who knows he will go to prison no matter what (because he really is guilty), the prosecutor then offers life-saving benefits, often secretly, in exchange for testimony against many less culpable “targets” of the government’s investigation.

Continue reading →

At Volokh Conspiracy, Orin Kerr discusses oral argument in the Rodriguez case, which apparently departed from its stated issue (how long after the completion of a traffic stop may a person be detained for the purpose of conducting a dog sniff).  Both Orin and I agreed that the only doctrinal answer was that upon completion of the traffic stop, there was no constitutional basis to continue to detain a person, and no further detention, even de minimis, could be permitted.

The notable aspect of the argument is that the Justices were more interested in the broad issue of how long traffic stops can last than the narrow question raised in the cert petition. I read the cert petition as raising a pretty specific question: When a traffic stop is over, can the government extend the stop for a dog sniff, and if so, for how long? The narrow cert grant posed a bit of a problem because the Supreme Court has said little about how long traffic stops can extend generally. Without a theory of how long stops can last generally, it may be hard to answer what to do with specific question of delays at the end of a stop. As a result, several of the Justices wanted a general test for how long traffic stops should extend.

Rodriguez’s counsel got caught short, not anticipating that argument would head in this direction.  It’s actually an excellent question and one that must be answered if there is to be given any meaning to when the traffic stop is done and the extension begins.  After all, the entirety of the stop can be easily gamed if the cop simply holds the driver’s license and registration until the dog arrives, whether that takes ten minutes or two hours.  Continue reading →

When Washington State took the leap by establishing the first non-lawyer legal post, the Limited License Legal Technician, it was a huge step forward in providing a lower-tier resource for basic legal advice and services.  Indeed, it looked an awful lot like my proposed Legal Practitioner, with many of the same virtues of proper training and qualification.

As Bob Ambrogi notes in an article for the dead-tree ABA Journal (that would be the same one that asked for, then decided not to print, the article on mentoring that Dan Hull and I wrote), the first graduates of the LLLT course of study are about to hit the street.

Michelle Cummings looks forward to this spring, when she expects to take on her first law client. By then, the Auburn, Washington, resident will have completed her studies and taken the state licensing examination. Provided she passes, she will begin practicing right away. Continue reading →

There is no one in Boston who believes that Dzhokhar Tsarnaev stands a chance of acquittal for his role in the Boston Marathon bombing, but that hasn’t stopped Judy Clarke, head of his defense team, from doing her job.  But as Judge George O’Toole struggles to find anyone who would qualify as an impartial juror, the ordinary expectations of who would be qualified to sit are coming under attack.

It’s not like this wasn’t anticipated, but Judge O’Toole decided to plow ahead and the parties have to live with the consequences of his foolishness decision.

If Dzhokhar Tsarnaev’s defense team wanted to prove that seating an impartial jury in Massachusetts was an impossible task, it could rest its case now. Over four days, the federal judge George O’Toole has interviewed more than three dozen potential jurors who were not eliminated after filling out a written questionnaire, and only a few have emerged as both apparently impartial and open to the possibility of voting for the death penalty, which they must be in order to be chosen to serve.

Continue reading →

If there wasn’t a West headnote for “giving the finger” before, there will be now.  The 2d Circuit in Swartz v. Insogna held that “a gesture of insult known for centuries” does not give rise to probable cause to arrest for disorderly conduct.  Oh, what the heck, Judge Jon Newman spelled it out: giving a cop the finger.

The case came before the 2d Circuit on appeal, having been dismissed by Judge David Hurd out of the Northern District of New York, where no such gesture had ever before happened. Much.  Judy Swartz was driving when her husband John saw Police Officer Richard Insogna doing a radar trap.

John expressed his displeasure at what the officer was doing by reaching his right arm outside the passenger side window and extending his middle finger over the car’s roof.

Continue reading →

Jermane Reid, as he exits the passenger seat as commanded, with hands in the air. is executed by Bridgeton Police Officers Braheme Days and Roger Worley.

As he exits, Reid says:

“I ain’t got no reason to reach for nothing, bro, I ain’t got no reason to reach for nothing….”I’m getting out and getting on the ground.””

Then, with his hands visible at shoulder height, Jerman Reid was executed.

In 1975, I pledged the Alpha Rho chapter of Phi Kappa Sigma.  I can still recite the Greek alphabet five times on a match, and having been elected to the exalted position of Delta (bartender), I held the secret recipe of our fraternity beverage, The Blue Meanie.

It’s not that I was big on the whole brotherhood thing, but that I needed a place to live sophomore year and PKS had a pretty nice chapter house, Greentrees.

It is now the home of Pi Kappa Phi, as my fraternity was banned from campus in 1991 following an unfortunate incident.  But when I was there, we had some damn good parties and some great times.  Nobody realized at the time that this was horribly wrong. Continue reading →