The New York Times editorial chalks it all up to money.

The current Congress is the place where virtually all legislation, however urgent or reasonable, goes to die. Yet out of this stew of partisan mistrust and dysfunction there may come one promising and unexpected achievement: the first major reforms to America’s broken criminal justice system in a generation.

With two bills pending in Congress with bi-partisan support, the Smarter Sentencing Act, to cut some mandatory minimums for non-violent crimes, and the Recidivism Reduction and Public Safety Act, to promote rehabilitation with jail-time credit, we are poised for reform of some sort, and the Times raises the question of “why now?”

Reforms like these were unthinkable even a few years ago, when the Republicans’ longtime tough-on-crime dogma — echoed by Democrats who fearfully fell into line — drove irrational sentencing laws. Why have things changed so quickly? In a word, money — or the lack of it. Continue reading →

When Elie Mystal first told me that Breaking Media, the corporate overlord of Above the Law, was going to try to throw a conference about blogging, I wondered whether he was trying to ask me to give a presentation or sit on a panel, perhaps. Nope. They wanted nothing to do with me, though David Lat later offered me a 15% discount off the price of admission.

Painful though it was, I passed on Lat’s gracious offer.  And then Marc Randazza emailed me, that he was coming to New York to be on a First Amendment panel at the conference, and would I meet him for lunch.  How could I say no to my buddy, Marco?  When the conference rolled around, I asked Marc where we would go to lunch, and he replied, “The Yale Club.”

I know. Randazza at the Yale Club? I can’t even type those words without chuckling, but that’s where the conference was being held, and Breaking Media was paying for lunch there anyway. Continue reading →

The New York Times calls him a minnow, swimming with the sharks of Dewey LeBoeuf.  When the indictments were announced, everyone knew who the big machers at Dewey were, but Zachary Warren?  At the time, he was a fresh-faced kid out of Stanford working as a “client relations manager,” a non-lawyer paid to do what the big fish at biglaw told him to do. Big deal.

But since then, Zachary Warren went to Georgetown Law School, made law review, clerked for District Court Judge J. Frederick Motz in Maryland, and then a clerkship on the 6th Circuit for Judge Julia Smith Gibbons, and was admitted to the California and D.C. bar.  He has a job offer from Williams & Connolly waiting for him. Not too shabby.  Still, he got burned by the basics.

Mr. Warren may have been naïve, but he thought he was being questioned as part of a civil Securities and Exchange Commission investigation. He thought he might be a witness, and thus did not need a lawyer. Only too late did it dawn on him that he might be a target of a criminal investigation. Continue reading →

A discussion has “erupted” over the word “disruption.” At 3 Geeks and A Law Blog, Ryan McLeod writes of how he challenged “the myth of disruption.”

In a recent session at LegalTech NY, I spoke about what I consider to be the great myth of disruptive technology; that we need to be on the  hunt for the next big thing to set our firms apart and leave our  competition in the dust. This is a fool’s errand. As I said in my talk,  there is no technology that you can buy, build, or even imagine that you can simply drop into your existing workflow and reasonably expect it to disrupt anything other than your existing workflow.

At the Puddle, Sam Glover lays some hate on the daily emails announcing the newest cool start-up that will “disrupt” everything, conjuring up images of O.J. Simpson’s low speed Bronco chase: Continue reading →

Much as we can boil down what lawyers do to the core obligation to represent their clients, we can similarly boil down what lawprofs do to teach their students. This, of course, is simplistic and naïve, to ask most lawprofs, who will explain at very great length (and in language that makes people not want to talk to them at cocktail parties) their duty to engage in scholarship and promote the development of liberal arts and theoretical jurisprudence, but that’s just because they prefer doing such loftier things to teaching. Who wouldn’t?

The duty of a lawyer doesn’t change based upon the lawyer’s characteristics, though it can well be argued that societal bias affects any individual lawyer’s effectiveness. Race and gender, for example, are often hurdles to be overcome. How many female lawyers have experienced the pleasure of having a judge call them “little lady” when explaining why they’re wrong?

While we can complain about the treatment, Continue reading →

Fear.  The title is calculated to cause fear. The numbers are calculated to cause fear. And worst of all, the obligatory anecdotes are calculated to cause fear. And loathing. And anger. All of which give rise to the possibility that a new moral panic is in the making, that 186,000 felons are on the loose and no one can be bothered to stop them.

What’s surprising in that this isn’t being spread by an association of prosecutors, a conservative political action committee or wild-eyed moms scared to death for their children.  This comes from Brad Heath at USA Today, who has long been one of the most thoughtful voices in the mainstream media on criminal justice issues.

In the opening part of the series, a sex offender from Philly takes a bus to Miami, and…well, you’ll see: Continue reading →

He’s back.  Rumors of Judge Richard Kopf’s blog being deader than Generalissimo Francisco Franco turn out to be somewhat exaggerated.  I say “somewhat” because the judge’s health isn’t all it should be, but all expectations are that he will be back to sentencing in no time, and I wish him a speedy and full recovery.

That said, it hasn’t stopped the judge from issuing a challenge, though it was to Doug Berman rather than me.  But with some gentle criminal defense lawyer persuasion, the judge was kind enough to let me play too.  Or as he said, “game on?”

His doc was from Denver, and the judge has cancer, which naturally led to a discussion about Colorado’s legalization of marijuana.

[W]e had a fascinating discussion about legalizing marijuana in Colorado and some of the unintended consequences of Colorado’s idiotic (my view) pot policy. Continue reading →

Much as it may surprise some, I read marketing guru Seth Godin’s posts every day.   While it may be occasionally trivial or self-serving, Godin often provides significant insight into the meaning of service. As law is a service we provide to clients, we ought to always be concerned with how we can better perform our services. And since we, as consumers as well as lawyers, enjoy or suffer at the hands of those whose services we use, we ought to be concerned with what we are getting and why.

Godin writes a “what people really want” post, which serves as a generic counterpoint to the post about what criminal defense lawyers really do.

Most of the time, people don’t want a refund or a bonus. What they really want is for you to hear them and to do the right thing. What if every manager and every customer contact in your organization bought into that? Continue reading →

An avalanche of amici have arrived in the two cellphone cases coming before the Supreme Court in April, Wurie and Riley.  As previously discussed, these cases present an opportunity for the Court to impact the future of privacy, either by creating the foundation for distinguishing technology from historic 4th Amendment precedent that no longer applies, extending that precedent by failing to address the fundamental distinction between the digital world and the physical world, or splitting the baby.

Here are the amici briefs of which I’m currently aware. If there are others, regardless of side, please let me know and I’ll add them in: Continue reading →

It clearly wasn’t his purpose, but the representative from the 8th Congressional district of Washington, Dave Reichert, made the case against the death penalty.  In an op-ed in the Seattle Times, he planned to rip Gov. Jay Inslee’s execution moratorium a new one. Reichert, you see, had a real job before becoming a congressman:

As a King County Sheriff’s deputy and homicide detective, he was the lead detective of the Green River Task Force. He served as sheriff from 1997 until 2005.

Drawing on his experience as lead in the Green River Task Force, Reichert explained:

Gary Ridgeway is the monster we arrested as the Green River killer in 2001. He would eventually plead guilty to 49 counts of murder although he has claimed that he raped and murdered 20 to 30 more young women. Continue reading →