One of the great joys of sitting on an appellate bench is that one is never compelled to accept as fact things that were hashed out at enormous length and effort before the trial court.  As Appellate Squawk likes to point out, facts are for kids. But a wave of reality swept over the Second Circuit, compelling them to do the unthinkable: reject the government’s allegations as “unreasonable.”

In United States v. Clark, the defendant, following some drinking at Gonzo’s Bar in Lockport, New York (I swear I didn’t make up the name of the bar), was arrested for being in the vicinity after a fight occurred. He was arrested, searched and placed in the back seat of a police cruiser. His hands were cuffed behind his back.  He was left alone in the back seat for five to ten minutes, then taken out of the cruiser after a one-minute ride to the police station. Continue reading →

The call was for a medical emergency, the “public safety” function of police that transcends their law enforcement function.  But neither function nor purpose transcends the First Rule of Policing, as 50-year-old CUNY physics and math professor Karl Anders Peltomaa learned.  From the Gothamist:

Peltomaa had a bad reaction to medication he was taking (he had undergone open-heart surgery a few days earlier). [Peltomaa’s wife, anthropology professor Suzanne]  LaFont called 911, telling them they needed an ambulance and her husband was “freaking out,” worried about his heart.

The couples’ dog escaped the apartment when Officer Anthony Giambra first arrived; LaFont chased after the dog, and when she returned, she found her husband inexplicably against a wall being handcuffed. Continue reading →

The verdict was stunning:

Two former police officers were acquitted of all charges Monday in the 2011 beating death of a homeless man at a Fullerton, Calif., transit station.

It took a single day of deliberations for jurors to reach their verdicts regarding the culpability of former Fullerton Officer Manuel Ramos and former Cpl. Jay Cicinelli in the death of 37-year-old Kelly Thomas.

As if to add insult to injury, the beating was somewhat captured on video, and he died five days later.  Calling for his dad to help him as he was tased and beaten was more than most people could stand.  And yet, the jury returned a verdict of not guilty. Continue reading →

In what should not be, but is, an earth-shattering decision, the Second Circuit did the unthinkable. In the en banc decision in Poventud v. City of New York, the court held that a defendant who had been denied Brady with a reasonable probability of having affected the outcome of his case could maintain a §1983 action even though he subsequently took a plea of convenience.

Poventud served nine years out of a ten to 20 year sentence before his conviction for attempted murder was reversed.  It was learned during the retrial of a co-defendant that a key witness identified another person as the shooter, but that this exculpatory information was not disclosed.  After his conviction was vacated, he was offered a plea to one year, which would preclude a prosecution appeal of the reversal or retrial. It means time served, and he would walk out. Poventud took the deal. Continue reading →

I haven’t always been kind to the Future of the #ReinventLaw of the New Normal crowd, sometimes calling their much adored baby ugly. Or worse.

But Bitter Lawyer’s Gregory Luce surreptitiously recorded this telephone call in the future, which helps to explain my reluctance to jump aboard the train.  I apologize for the inconvenience.

Please be advised that this conversation may be
recorded for quality control and training purposes.

WWL: It’s a great day at WorldWiide Legal Services, where we  always have two “i’s” on your legal issue. My name is  Darby and I’ll be your Legal Ninja today. Welcome,  how can we help you?

THOMPSON: Uh, did you say Ninja? Continue reading →

Steven Lechner had a rough start to his oral argument in the fascinating case of Marvin M. Brandt Revocable Trust v. United States before the Supreme Court.  As it turned out, he did pretty well after that, but Justice Nino Scalia threw him off his game at the outset. From Tony Mauro at the Blog of Legal Times:

By all accounts, it was an excruciating moment at the Supreme Court on Tuesday.

A nervous first-time advocate began his argument by reading from a prepared statement, until the never-shy Justice Antonin Scalia interrupted and asked: “Counsel, you are not reading this, are you?” The lawyer, Steven Lechner, froze and did not answer, staying silent until Justice Stephen Breyer broke the tension with these words: “It’s all right.”

It’s not that one can’t sympathize with Lechner. Continue reading →

Some think it’s a joke, or at least a half-joke, that the First Rule of Policing is make it home for dinner.  Police in Dallas aren’t finding it funny at all. It’s the First Rule, the prime motivation.  And because of the shooting of 19-year-old Kelvion Walker by Senior Cpl. Amy Wilburn, the Rule is at risk.

The Dec. 9 shooting at issue came about after two officers pursued carjacking suspects in another vehicle; the officer says she shot the victim after he failed to comply with orders to show her his hands, leading to concern he was going for a weapon.

An internal affairs investigation found Wilburn, 48, violated the department’s deadly use of force policy for shooting 19-year-old Kelvion Walker “without fear or justification.” Chief David Brown fired Wilburn on Dec. 30, following the internal investigation, and said he intends to revamp the use-of-force policy and change training.

The reaction of Dallas cops? Continue reading →

The New York Court of Appeals heard oral argument in the cases of Adrian Thomas and Paul Aveni, addressing the issue of police lying and manipulating an interrogation to obtain a confession.  The Thomas case has been the subject of a number of posts here.  The Aveni case not so much, as he prevailed in the Appellate Division, Second Department, while Thomas lost on appeal.

The New York Times offers some bits of the argument:

“What is acceptable pressure?” Chief Judge Jonathan Lippman asked Kelly L. Egan, a lawyer representing the Rensselaer County district attorney’s office. “What’s O.K. and what’s not O.K. in terms of deception?” Continue reading →

One of the joys of the practical blawgosphere is reading another blogger’s post and, boom, an aspect just clicks, provoking thought and, perhaps, putting an inchoate idea into words. When my buddy Ken White at Popehat triumphantly returned to blogging after the wounds healed from the tragic kiln explosion in Sylvia Plath Hall at Emily Dickinson College, his first post was the traditional STFU message.

One of the most consistent messages I offer here is about interactions with law enforcement, and can be expressed in two words — shut up — although “oh you dumb son of a bitch will you for the love of God shut up” might capture the flavor better.

This isn’t to say that Ken was being repetitive, as it’s a message that needs constant repeating, Continue reading →

As the trial progressed, some usually cynical people took notice.  It certainly appeared to them as if Judge William Haskell Alsup was about to kick some government ass in their handling of Stanford Ph.D student Rahinah Ibrahim.  The link tells the story, and I will assume you’ve bothered to go and read it rather than retell it here.

But the piece that made this special was Judge Alsup’s refusal to take the government’s word  that it would never do anything untoward.  From his demands and directions, it certainly looked as if Judge Alsup wasn’t going to drink the government’s Kool-Aid, but rather was about to drop the hammer on their cute attempt to circumvent the truth, their duty to the court and Ibrahim, and their effort to hide their abuse behind executive secrecy.  It certainly looked that way. Continue reading →