For all those who complain that the states on the coasts think they’re better than the flyover states, there’s only one thing to say:  Pfffft.  See? We can be just as stupid as you are. Meet the New York State Senate.

For all the advantages that the Internet provides, it also assists individuals in perpetrating harm upon others. Social media allows for the widespread dissemination of information and images, and websites devoted to providing people with a means to perpetrate revenge upon former spouses, girlfriends or boyfriends have been created.

And so they passed S5946A-2013, which provides:

S  250.70  UNLAWFUL  DISSEMINATION  OF  AN  INTIMATE IMAGE IN THE SECOND  DEGREE.
A PERSON IS GUILTY OF UNLAWFUL DISSEMINATION OF AN INTIMATE  IMAGE  IN  THE  SECOND  DEGREE  WHEN, WITH INTENT TO HARASS, ANNOY OR ALARM ANOTHER  PERSON, HE OR SHE INTENTIONALLY DISSEMINATES AN IMAGE OR IMAGES  OF  THE  SEXUAL  OR  OTHER  INTIMATE  PARTS  OF  ANOTHER  PERSON WITHOUT EXPLICIT  CONSENT OF SUCH PERSON TO DISSEMINATE SUCH IMAGE.

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Meet the United States Sentencing Guidelines Table:

And now meet the Drug Quantity Table.  It occurs to me that some of you have yet to be introduced, and since this post is about the internecine battle over the Sentencing Commission’s proposal to reduce drug sentences by two levels, and whether it should be fully, partially or not retroactive, you ought to make friends first.  Everybody say hi. Continue reading →

While waiting for the herd to make its way from the jury room to the courtroom, the judge always asks the same question: who will be the witnesses for the defense?  The judge asks for names so he can read them to the jurors to find out if anyone in the panel knows them.

My habit is to tell the judge that I have none, since I have no idea what the prosecution case will be and it is thus impossible to say whether the defense will call any witnesses.  While the point is accurate, it’s really a matter of protection.  Within an hour of my giving a name, two agents will knock on their door to explain to them the penalties and prison time they will face for testifying on behalf of the defense.

Sure, I prepare the witnesses for this certainty, as their names will eventually surface, but there is a very real difference between my telling them what will happen and the experience of guys with shields and guns threatening their family’s future.  They may love the defendant. They may love truth. But not always that much.

If the defense does this, it’s called witness tampering. It’s a crime.  When the prosecution does this, it’s called investigation and it’s not only cool, but applauded.  All things are not equal. Continue reading →

After writing about Nancy Leong’s post on inappropriate exercise of editorial discretion, I stumbled on a retwit by Nino Pribetic that struck a familiar note.

It led to a post that seemed to confirm that this was the person Nancy was writing about.  Some may find this odd, but I had no interest in figuring out the mystery earlier. It didn’t matter to me who the target had been before, as it wasn’t about the individual but the issue.  Yet here I was, face to face, so to speak, with the target of threats.

I know nothing about Sarah Kendzior.  I don’t know her politics or ideology. I’ve never read anything else she’s written.  I know nothing about her personally. She is nothing more than a disconnected name in the universe, and the only bit of information I have is that she told the twittersphere that she received rape threats.

The nature, number and details of those threats remain unknown.  For my purposes, it’s more than sufficient that Kendzior says so.

When I responded to Nancy’s post, I did so with my usual sensitivity: Continue reading →

One of the saddest characterizations seen in a long time appears in Kansas lawprof Corey Yung’s post at Concurring Opinions on George Wills and the politicization of rape.  He wrote:

George Will joins the chorus of conservative authors writing about rape on college campuses. As with other recent articles, Will’s piece downplays the problem of rape on campuses.

What makes this so unfortunate is that Yung seemed to be one of the few lawprofs who showed a sincere interest in an empirical analysis of the “problem,” rather than simply assuming it to be a huge problem in the absence of evidence that it was a problem at all.  The irony, of course, is that he complains of its politicization by conservatives, as though it hasn’t been politicized by feminists up, down and sideways.  It’s always the guy who strikes back to defend himself who gets caught. Continue reading →

The Sting.  Not only a great movie, but an extremely effective means of catching someone doing wrong under controlled circumstances.  The sting provides the opportunity, while the target comes with the predisposition.  If not, it’s entrapment, and that would be wrong.

But as effective as the sting may be going one way, it can be just as effective going the other, and that’s got longtime blogger and former defense lawyer turned prosecutor Ken Lammers pissed.

Baiters are the people who go around purposefully engaging in activity meant to arouse police suspicion and then act shocked SHOCKED!!! that police accost them. These are the guys who create houses that mimic the energy and heat production of a grow house, or walk through the middle of town with a pistol strapped to their hip and a rifle across their back, or violate a minor law where they know it won’t be ignored (often trespassing or a minor traffic infraction). Of course, baiters set it up so that the whole thing is captured on video with the purpose of putting the video online (sometimes they even use the police car video gotten through FOIA requests).

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One of the most pernicious rights in the Constitution is set forth in the Sixth Amendment, putatively guaranteeing a jury of one’s peers by the words, “an impartial jury.”  Inspirational and aspirational, though rarely if ever achieved.  But more importantly, what about their footwear?

The court is a place, like church, where evolving style often rubs against tradition. Everyone has an opinion about how lawyers, defendants and litigants should dress.

But what about jurors? Can a potential juror get the boot for violating a court dress code? Who enforces it?

These are questions that have come up in a federal mortgage-fraud case in Orlando, Fla., where two lawyers say their clients’ rights were violated when court security officers allegedly turned away a number of prospective jurors for violating the court dress code.

Apparently, the dress code in the Orlando division of the U.S. District Court for the Middle District of Florida is a bit on the conservative side: Continue reading →

One of the difficult questions in publishing something on the interwebz is what to include, what not to include, whether to name names, link links, include pics or let something go.  As Avvo’s Mark Britton pointed out to me a few years ago during a lunch (he paid) in Florida, do I really want to call someone out here and cause them tsuris, if not real harm?

It’s a matter of editorial discretion, as Nancy Leong notes.

Over the weekend, an online magazine made a very poor editorial choice. A writer for the magazine wrote a piece about the proper use of the term “bro.” The piece included the sentence: “And I just don’t think the diminutive label of ‘bro’ should be to describe more insidious sexism, let alone violent aggression like rape threats.” The words “rape threats” were hyperlinked to a single tweet by a female journalist.* The tweet was addressed directly to another person on Twitter, in which the journalist had used a variant of the word “bro” in briefly alluding to rape threats she had received. (For non-Twitter-users: when a tweet begins with the “@” symbol and the username of another person on Twitter, only the sender and recipient of the tweet, and any people who happen to follow both users, will see the tweet. Other people can then find the tweet, which is technically public, but doing so requires a specific search.)

Putting aside the question of whether the “proper use of the term ‘bro'” is worthy of a serious magazine article (it’s not, but who cares?), this is a prelude to Nancy’s point: while it may not be a free speech issue, was it an abuse of editorial discretion to include a link to a twit that was otherwise relevant to the issue but involved rape threats that wasn’t directed to the author of the article, didn’t involve a specific individual in the article and was an @ twit? Continue reading →

One of the great ironies noted over and over is how ignorance, from the perspective of law enforcement, grants far greater latitude to do damage than knowledge.  Whenever someone ponders why the cops don’t exercise restraint, patience, or conduct a thorough investigation before pulling out all the stops, it’s the incentives built into the system.

Matthew Heller found out the hard way.

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Old guy in the cell: What are you in for?

New guy in the cell:  I aged cheese on wooden boards.

Old guy: Oh. (Moves away slowly.)

The news broke on CNN that a Utica child, Sally, had fallen ill after eating some cheddar on her well-done burger. Her parents were interviewed, mother crying and father angry. “How?” he yelled.  “How can they let a child get sick because of cheese?”  The mother added in a soft, quiet voice, “we have to stop this so no other mother has to suffer watching her baby suffer the agony of a tummy ache.  We have to do this for the children.”

From Walter Olson at Overlawyered, the FDA has interpreted the Food Safety Modernization Act to preclude the aging of cheese on wood boards.  Much as you may not think this touches your life, it does if you happen to enjoy any better cheese than velveeta. From CheeseUnderground:

A sense of disbelief and distress is quickly rippling through the U.S. artisan cheese community, as the federal Food and Drug Administration (FDA) this week announced it will not permit American cheesemakers to age cheese on wooden boards.

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