9/11 On My Mind

For anyone who doesn’t know, my office on September 11, 2001, was on the 51st Floor of the Woolworth Building, which was the best possible view of the Twin Towers in New York City. It was from the spot where my desk chair sat that the photograph of The Site was taken for Life Magazine.

I was given a print of the photo, taken with a camera in large format showing exceptional detail. I still have it, squirreled away in a place where I never look. I won’t get rid of it, but I don’t look at it either. I’ve never watched a television show or documentary about 9/11. If it happens to come on, I change the channel. Continue reading

Judge Posner Learns The Economics of Free

No doubt Judge Richard Posner left the Seventh Circuit with the best of intentions.

“About six months ago,” Judge Posner said, “I awoke from a slumber of 35 years.” He had suddenly realized, he said, that people without lawyers are mistreated by the legal system, and he wanted to do something about it.

How he managed to sleep through this for 35 years remains something of a mystery, although it might be best explained less as slumber and more as not giving a damn and just being annoyed by the zany antics of pro se litigants, but two things appeared to coincide. First, he realized that there were meritorious issues buried deep in the gibberish of pro se applications, and second, he was bored with his life and wasn’t getting any younger.

His answer, after alienating himself from his colleagues on the circuit, was to form the Posner Center For Justice for Pro Se’s. It sure sounds all justice-y, and the mission tugged at our collective heartstrings. Continue reading

Tuesday Talk*: For The Cause Or For the Accused?

There are some very popular people on social media, with tens of thousand of followers, gushing about the injustice of the system. Much as their assertions tend to be half-baked, quasi-accurate by including only the details that further their posture and omitting entirely the requisite facts that expose the claims of heartbreak as manipulative hogwash, the audience is non-lawyers.

They twit for the benefit of the unduly passionate, to convince them that the system is horrible and broken, that District Attorneys other than the tiny subset of progressives they adore are evil, that cops are just racist killing machines and that they are the heroes who sacrifice to save society by fighting the good fight, mostly at night arraignments and occasionally in post-conviction exoneration cases.

So what, you might ask? If it’s just petty deception of the useful idiots to create a critical mass for reform, isn’t it worth it? Perhaps, subject to one’s tolerance for lying, but the problem is that it’s not just the unwashed masses, but a lot of law students and baby lawyers (and more than a few lawyers with sufficient experience to know better) seem to have gotten caught up in the fervor. Continue reading

Lisa Bloom’s Moment As A Lawyer

Even a faux-feminist show pony needs to earn a living, you know. Nobody paid Lisa Bloom to talk to the microphones about the pain and suffering of sad victims, even though that was her brand.

Stop giggling. When Jodi Kantor and Megan Twohey included the $895 per hour in their book, “She Said,” it was to inflame the masses with her outrageous fee, even though it’s second tier, teetering on third, for good lawyers. But that was the problem for Lisa Bloom. She was a pseudo-celebrity lawyer, much like her mom, Gloria Allred, but that didn’t pay the bills. Guys like Harvey Weinstein paid the bills. At least that’s what Bloom thought. Continue reading

Scolding Mosley

Not that Walter Mosley needs anyone’s help to tell a story, but a commenter, Patti Jacobs from San Diego, was too perfect to pass up. Let’s assume she’s female, because in a sane world her name would be a giveaway, and she’s likely white because I assume she would have said she wasn’t if she wasn’t. Regardless, Patti Jacobs put the cherry on top:

The dialogue has already been opened, and the change has already taken place. The n-word is offensive at all times, by all speakers.

Says who? Says Patti Jacobs, the person who gets to tell you, and Walter Mosley, what can and cannot be said. All words. All speakers. It’s unclear what Patti Jacobs’ day job is, but it wouldn’t be surprising to learn she works in HR, keeping the work world safe from discomfort. Continue reading

Maryland Court of Appeals Abrogates Accomplice Corroboration Rule

Why? Why would a defendant rat out his “accomplice” to the cops or prosecutors? A few general reasons come quickly to mind: First, sometimes it just happens, when a suspect is being interrogated and the name just comes out. Second, there’s misdirected anger, when a defendant gets nailed for something and believes it’s unfair that he has to go down but the other guy is going to get away with it. Why him? Why should he take the fall?

Third, because a defendant comes to the realization that he’s not going to walk and sees opportunity. Whether it’s the chance to snitch and get credit that will serve to reduce his sentence or there’s some hated person, and this is a chance for revenge. It may even serve to accomplish both purposes, a sentence reduction and vengeance. As long as the defendant is going down anyway, why not make the most of it?

There is only one hurdle to making this work, the accomplice corroboration rule, which “requires that accomplice testimony be independently verified to sustain a conviction.” It’s not much. Any independent corroboration will do, no matter how slight. Continue reading

The Legacy Bump

When my son and I met with the dean of admissions at my alma mater, he could not have been more accommodating. My son didn’t want to go, but I tricked him because they were holding the Cornell Open fencing competition that weekend and it made the perfect lure. He won, despite only being in high school, and they wanted him to fence for Cornell.* Plus, he was a direct legacy.

Of course, my son didn’t care. He didn’t want to go there, no matter how sweet the dean’s endearments. And he didn’t need my legacy bump to get where he wanted to go.

In a 2012 blog post, Chris Peterson, an assistant director in the M.I.T. admissions office, put the issue in stark terms. “I personally would not work for a college which had legacy admission because I am not interested in simply reproducing a multigenerational lineage of educated elite. And if anyone in our office ever advocated for a mediocre applicant on the basis of their ‘excellent pedigree’ they would be kicked out of the committee room. So to be clear: if you got into M.I.T., it’s because you got into M.I.T. Simple as that.”

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Dirty Money, Dirty Donor

Joi Ito was about as odd and quirky a choice for director of the MIT Media Lab as imaginable. He had no college degree, yet held a professor’s rank at the Institute and was a visiting professor at Harvard Law School. His background was like a shotgun blast, with buckshot spread everywhere. And yet, he was director of MIT’s flagship program in innovation.

Then came Jeffrey Epstein, who turned out to be a significant donor to the program, even as no one is entirely clear where Epstein’s money came from. But Ito knew one place it might go, and that was his lab and his personal enterprises. Part of the job is to get donations, and Epstein was one of Ito’s “go-to” guys. Was it wrong to take his money?

I’m writing about Ito, not because I think he ever participated in the heinous acts Epstein was accused of, but because his willful ignorance of Epstein’s record contributed to the harm of the victims. A well-written New Yorker article by Amy Davidson Sorkin details how much of Epstein’s power lay in his powerful network of men, many of whom were in academia. Another article, by Philip Weiss in 2007, says that when asked about his child prostitution charges, Epstein responded, “Have you managed to talk to many of my friends? … Do you understand what an extraordinary group of people they are, what they have accomplished in their fields?”

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Kopf: Magic Mirror On The Wall, Who Is the Fairest One Of All?

An amusing thing recently happened at the Fifth Circuit.[i] It all started with a  qualified immunity (QI) case. Cole v. Carson, No. 14-10228, No. 15-10045 (5th Cir., August 20, 2019) On a petition for rehearing en banc following remand from the Supreme Court, the Fifth Circuit once again affirmed the denial of summary judgment on an excessive force claim. Plaintiff and his parents had filed suit against police officers under 42 U.S.C. § 1983, alleging that the officers violated the Fourth and Fourteenth Amendment during an incident in which the officers shot the kid who was holding a gun near his head as he suddenly emerged from a tree line.

Although the majority decision is patently wrong and, given the remand, appeared to thumb its nose at the Supreme Court, the result of that opinion is not what I care about. Instead, I write about two dissents. Those dissents remind me of an iconic Disney movie and the pertinent question it recalls, “Magic mirror on the wall, who is the fairest one of all?”

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Raise The Bar On Cancel Culture

Thought you heard the end of “I know you are but what am I” when you were on the playground in third grade? No, of course you didn’t, because you are no doubt following the smartest and most persuasive people your tribe has to offer, and they’re hurling variations of this infantile reply fast and furious.

Breitbart, that bastion on deep alt-right thought, dug up some old twits from a University of Alabama Dean of Students.

Jamie Riley had dared to criticize the American flag and the police, writing in 2017 that they represent “a systemic history of racism for my people.”

Breitbart decided that this and other tweets of Riley’s merited an article. Reporter Kyle Morris wrote that “a series of resurfaced tweets from Dr. Jamie R. Riley, the University of Alabama’s assistant vice president and dean of students, show he once believed the American flag and police in America are racist.” But the tweets didn’t just resurface on their own—they were publicized by the right-wing news site in order to send a social media mob after Riley.

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