Reliable sources confirm that Stewart Baker is not a parody poster at the WaPo Conspiracy, but is in fact a real person.  Thus, his latest post, elevating the opinion of FISC Judge Rosemary Collyer over the opinion of Judge Richard Leon in Klayman v. Obama is not, I repeat, not meant as satire.

But what has to hurt is Judge Collyer’s dead-pan takedown of Judge Leon’s hyperventilating prose. And in a parenthetical, no less.  Summarizing Judge Leon’s reasons for not following Smith v. Maryland, Judge Collyer writes:

The NSA program, on the other hand, “involves the creation and maintenance of a historical database containing five years’ worth of data” and might “go on for as long as America is combating terrorism, which realistically could be forever!” Id. (italics and exclamation point in original).

Yes, indeed they were. Which raises two questions about Judge Leon’s opinion:

1. Is this the first judicial opinion rendered unpersuasive by its punctuation?

2. Was his CAPS LOCK key broken?

Hey, Stewart, did you draw a tin foil hat on Judge Leon too? Good one, Stew. Continue reading →

One of the recurring issues addressed here over the years has been how police and the disabled create a mix that ends with conflagration, and invariably the disabled person being the one who gets burned.  Or beaten. Or tased. Or worse.

For someone who is deaf, the problem is magnified for practical reasons. First, because they cannot hear a command, and therefore fail to comply, which appears to a cop as either a threat or disrespect, either of which is a good reason to inflict pain.

Second, they can’t explain their disability quickly and in a manner that cops won’t find threatening.  When cops are in “command presence” mode, they aren’t interested in learning about what the perp has to say. They want compliance, and they want it now. Everything else, like “hey, cop, I’m deaf,” can wait.

For these reasons, it’s critical that police receive training in dealing with the disabled, and particularly the deaf and hard of hearing. Continue reading →

It was less than effective to raise the question before the 9th Circuit, and that was with Eugene Volokh making the best possible argument out of a monumentally trivial, yet insignificantly irrelevant, line in an opinion where she otherwise won. And so what does Crystal Cox do?  Wait for it…

She does a pro se petition for certiorari to the Supreme Court. Oh, yes. Yes she does.

The sole purpose is to have the Supreme Court redact the sentence that offends her from the opinion.  And so naturally, she raised a few questions: Continue reading →

In the afternoon, Dr. SJ and I drove over to Jekyll Island, a quaint little place with some beautiful old houses and a pier with a place called “Rah Bar.”  We thought it was either a cute name or a Georgian typo.  As it turned out, it was both.  We ordered clams on the half shell, which appeared cooked, and a plate of crawdads.  We also ordered some libation.

As we sat there, discussing the relative virtues of Friedrich Nietzsche and quantum mechanics, an email came from a friend.  He was a new lawyer, but not a young one. And he told a story of his frustration and empathy, about how a client was treated fairly by one judge, while another was burned.  The idea that it was all so random, so pointless, was breaking his heart.  He will remain nameless for now, but can out himself if he wants. I would recommend he keep his identity private, but that’s just me. Continue reading →

SDNY Judge Jed Rakoff hasn’t been afraid to ask questions and challenge the “way things are,” which is most assuredly a virtue in an Article III judge. He sees the problem, according to his speech at USC Law School:

“Plea bargains have led many innocent people to take a deal,” Rakoff said. “People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

Five years? I wish. But still, his sentiments are clearly on target, that we’ve become a system of plea bargains, with “only 2 percent of cases in the federal system go to trial, and 4 percent of cases in the state system go before a jury,” and the prosecution dictates what that bargain will be. Continue reading →

The idea was floated four years ago.  At the time, I thought the idea had some merit, at least enough to warrant further consideration.  On the surface, many thought the idea was demeaning and unprofessional.

Maybe legal services from your local Wal-Mart is the right idea.  Maybe it’s got the seeds of the right idea.  Maybe Wal-Mart, via economy of scale or some of its other tricks, can allow lawyers to provide quality legal services at a significantly lower cost to consumers.  I’m not saying it can, but I am saying it’s time to start thinking seriously about such notions that are immediately written off as “absurd” by the bar, especially the formal groups who love to spout platitudes but never hold the hand of a client whose life has been ruined by the beloved system, “not perfect but the best ever created.”  We’ve got a platitude that forgives us every failure.  Spouting platitudes doesn’t do much to help clients.

The Wal-Mart lawyer is now a reality. Axess Law has opened offices in a couple of Wal-Marts in Canada.  Continue reading →

If nothing else, you’ve got to love the name.

While the “advice” may be pedestrian, shut up and be polite, one has to wonder whether a drunk driver is really in a position do much reading, no less thinking.  And should they blow?  Most lawyers say emphatically “no,” but the video doesn’t reveal whether that piece of advice, the most critical question confronting someone stopped for drunk driving, is given. Continue reading →

But if a corporation is a “person,” why not an animal?  That seems to be a common fallback question by those who either support the idea, or just hate Citizens United enough to use it whenever possible.  But its leading proponent, Gary Wise, is on a mission:

Mr. Wise began developing his animal personhood strategy after struggling with ineffective welfare laws and regulations that fail to keep animals out of abusive environments. Unlike welfare statutes, legal personhood would give some animals irrevocable protections that recognize their critical needs to live in the wild and to not be owned or abused.

Before you knee-jerk shout, “are you kidding me,” Wise has not only pursued this course for more than 30 years and taught it at Harvard, but he’s now got a case pending in New York:

His team, the Nonhuman Rights Project (NhRP), selected as its first plaintiffs four chimps living in New York: Tommy, Kiko, Hercules and Leo. He chose these animals in large part because New York’s common laws are favorable to habeas corpus lawsuits, and because there are great ape sanctuaries that could accommodate them. Continue reading →

In a remarkable post, Radley Balko revisists Boston a year after the marathon bombing.  Boston landmark, Faneuil Hall, bears the nickname “the cradle of liberty.”   On top is a grasshopper weather vane.

Knowledge of the grasshopper was used as a shibboleth during the Revolution period. The people would ask suspected spies to identity the object on the top of Faneuil Hall; if they answered correctly, then they were free; if not, they were convicted as British spies.

One could never be too careful when liberty was at risk. Not in Boston. Not in the cradle of liberty.  When the dry goods merchants decided to risk their lives and fortunes to free themselves from England, they understood the risk demanded by freedom. They understood that good people would die in the fight. Freedom was worth the risk.

Since then, things have changed. Continue reading →

In a post entitled “Merciless,” Judge Kopf tells the story of Stephanie Lomax, now known as Hamedah Ali Hasan, who he originally sentenced in 1993 after trial for crimes that occurred from 1988 to 1991.

The point of the story was to explain the twisted path Ali Hasan took to reach an eventual sentence of 262 months in prison, almost 22 years, for 5.9 kilograms, just under 13 pounds, of crack.

The point of the story was, despite Judge Kopf’s support, that the absurdly harsh sentence imposed was never given serious consideration for clemency by the President or Department of Justice.

She had served between 18 and 19 years in federal prison having convinced everyone with knowledge that she had been fully rehabilitated long before. The child that Hasan gave birth to in prison was nearly an adult. The clemency provisions of the Constitution and our laws on clemency had failed Hasan and the rest of us. Her treatment was merciless rather than merciful.

Continue reading →