When Josh Blackman noted the article in Vanderbilt Law Review, he felt it necessary to say that Judge J. Harvie Wilkinson III of the Fourth Circuit Court of Appeals wasn’t trolling.  Given his background and position, I daresay Josh is right.  Judge Wilkinson believes what he writes when he defends the criminal justice system:

As a judge with faith in that system, I am dismayed by the relentless insistence that we have it all wrong. Of course the system, like all human institutions, has its share of flaws. But the attacks have overshadowed what is good about the system and crowded out more measured calls for reform. The critics claim that major aspects of American criminal justice work to the detriment of defendants, when actually the reverse is often true. It is time for a more balanced view of our criminal process, which in fact gets a lot of things right.

My own reaction to the critics is one of gratitude for their contributions but dismay that they have allowed the pursuit of perfection in criminal justice to become the enemy of the good. Much about American criminal justice is indeed good. The system provides considerable protections for the accused and sets proper limits on the brutality and deceit that human beings can inflict upon each other.

The meme that perfection is the enemy of the good has its place.  It works well for toasters and roofing tiles that look like they’re slate, but really not.  But not only does its applicability to the criminal justice system not fit well, but it takes for granted that the system is good as it now stands.  That’s not how Judge Wilkinson sees it. Continue reading →

Some folks complained to me about my having nothing to say about the Hillary Clinton as defense lawyer fiasco propagated by the Beacon Free Press, and then seized upon by such thoughtful and credible websites as Jezebel.  Quit yer bitching.

First, it’s Hillary.  This is a law blog, not a political blog.  No political philosophy prevails here, much to the consternation of those who believe theirs should, and the concerns of criminal defense lawyers are often at odds with partisan politics of all flavors.

Second, Hillary had a big mouth.  Regardless of whether you see her assertion that her client, accused of raping a 12-year-old, was guilty as being fact or opinion, she had no business, absolutely none, discussing the question of her client’s guilt under any circumstances.  It’s hard to imagine that confidences weren’t breached here, though it would be impossible as an outsider to know exactly where, but the point remains that if she had kept her mouth shut, there would be no issue. She talked. She shouldn’t. She is not the poster girl for defense discretion. Continue reading →

King County, Washington, Sheriff John Urquhart called it “a slap in the face,” demonstrated a talent for understatement and cluelessness.  Had Darrion Holiwell been a little more gentle with his second and third wives, Urquhart might still be clueless.

From the Seattle Post-Intelligencer:

Darrion Holiwell, a 19-year veteran of the sheriff’s office, was a SWAT officer and the chief firearms instructor who worked at the Ravensdale Range where the agency’s SWAT team trained, in addition to local FBI agents and King County Jail staff.

Plus, he ran his own firearms training business, called Praeter, where he was the star of his own advertisements.

But that capped a laundry list of things Holiwell is accused of doing for which no cool pictures were taken. Continue reading →

Some great stories. Some lame. Some funny. Some not funny at all. But whether the stories brought a smile to your face, or catharsis for the teller, it reminds us that we are all boneheads once in a while. Sometimes, the product of our misstep is good for a laugh at our expense, and sometimes we suffer for a lifetime.

One commenter wanted the jacket more than anyone else, and it showed. After consultation with some guy from Wyoming, who strongly urged me never to bother him again with such nonsense, a winner has been chosen.  With deep appreciation and admiration of his literal embrace of the “pic could help” piece of advice, the winner is… Continue reading →

Crossing a state highway patrol officer who had seized my client’s tractor-trailer filled with narcotics at the suppression hearing, he testified to something different than he wrote in his report.  The wheels turned as I carefully framed the question so he couldn’t weasel out of his hole, and closed the trap.  He responded:

Well, I couldn’t put that in the report because the judge wouldn’t like it.

Nailed. I had him.  Caught the cop dead in a lie, and it doesn’t get any better than that.  It was one of those fist pump moments, and I imagined the judge ripping the prosecution a new one for outright lying to the court.  So what happened.

Suppression denied.  Not another word about it. Move along. Continue reading →

There are curmudgeons, and there are people who play curmudgeon on the internet. Under the pseudonym, Otto Sorts, someone is pretending to be a curmudgeon at a marketeering/futurist blog called Attorney At Work.

Otto Sorts has been reading law since before Martindale met Hubbell. Of Counsel at a large corporate firm that prefers to remain anonymous, Otto is a respected attorney and champion of the grand tradition of the law. He is, however, suspicious of “new-fangled” management ideas and anyone who calls the profession the legal “industry.” When he gets really cranky about something he blogs here at Attorney at Work.

At a large firm “that prefers to remain anonymous”?  Perhaps because the firm’s primary office is in Bangalore?  The problem, aside from the ability to use moderately correct English, is that this strikes me as a lie, a phony, where the marketeers have created a fictional old man as a foil to their attempt to convince youngsters to love and appreciate their “new fangled” ways.

I wouldn’t have known about this scam blog but for the ABA Journal’s blog whisperer mentioning a post, where this phony curmudgeon Continue reading →

“After the Court of Appeals threw out the his statements of guilt, we did the best we could with what we had left,” said Assistant District Attorney Christa Book. “I’m sorry that I could not bring Matthew justice.”

The Albany Times-Union called the acquittal “stunning.”  Like beauty, stunning is in the eyes of the beholder.  That Adrian Thomas was retried following the reversal of his conviction by the Court of Appeals is ugly.  That the prosecutor, in the face of the ruling and the defense evidence that Adrian’s son, Matthew, died not from any abuse, but from a bacterial infection, still believed that he committed murder was stunning.

Coffey used testimony from outside medical experts to argue that the baby died of a bacterial infection and not through any action of his father.

Thomas was convicted in 2009 of second-degree murder in the boy’s death, but the state Court of Appeals ordered a new trial earlier this year. The justices, in a 7-0 decision released in February, cited heavy-handed tactics used by Troy investigators, who interrogated Thomas for almost nine hours before he demonstrated how he threw the child.

The acquittal comes nearly six years after 4-month-old Matthew died, and Troy Police Sergeant Adam Mason manipulated a confession out of Thomas because an ER doc mistakenly jumped to the conclusion that the death was caused by abuse.  The defense tried to get the court to allow a false confession expert, Richard Ofshe, to testify, but the court instead went with the prosecution’s “expert,” Paul Cassell, who explained that false confessions don’t really happen. Continue reading →

Philip Datz was a freelance photojournalist, doing what freelance photojournalists are supposed to do.  That annoyed Suffolk Police Sgt. Michael Milton, who did what he wasn’t.

Philip Datz, 37, was covering the aftermath of a police pursuit on June 29, 2011, when Suffolk Police Sgt. Michael Milton approached him and told him not to film the scene. He filmed the encounter with Milton, who ordered him to leave the scene but not without first charging the freelancer with a misdemeanor count of obstruction of governmental administration. Datz was given a desk appearance ticket.

Suffolk County District Attorney Thomas Spota dropped the charges in August 2011.

Datz sued the county, and its taxpayers will now be paying the $200,000 settlement.  It’s important that they feel the pain for Milton’s wanton abuse of authority and deprivation of Datz’s constitutional rights, though it would certainly have meant more if Milton suffered for his choices.  But his punishment was a  loss of 23 days of “accrued time,” ten of which he got back if he didn’t do it again. Continue reading →

Could it be?!?  Is it true?!?  Who cares. This is the greatest contest ever in the history of the interwebz.

First prize is the official Gerry Spence fringed buckskin jacket, modeled here by the lovely SJ spokesmodel, Midday Cowboy.  That’s right, fringes. Buckskin. Gerry Spence. Does it get any better?  I think not.

And how can you win this fabulous prize? Continue reading →

Northwestern law dean Dan Rodriguez has taken the mantle of AALS Head Cheerleader, arguing on the one hand that the Legal Academy “gets it” when it comes to the problems facing law students and new lawyers after having pissed away a ton of money and opportunity on their JD, while simultaneously perpetuating the myth that they can continue doing things as they always have because it makes lawprofs happy.  And anyone who disagrees can shut up.

Let the scamblogging games commence!!
I should have added to above: law faculty with whom I meet are remarkably resilient and positive in the face of the bottomless pit of screed and invective that comes by way of (mostly) anonymous bloggers.

Posted by: dan rodriguez | Jun 9, 2014 9:34:08 AM

But while scambloggers don’t have much of a soapbox these days, Above the Law remains the 800 lb. gorilla (sorry, Elie, but I had to) in the lecture hall.  A debate broke out on Facebook over ATL’s failure to include solos in their law school rankings, and Rodriguez jumped in with such constructive thoughts as Continue reading →