Brailsford Acquitted For The Execution of Daniel Shaver

Daniel Shaver was just a ordinary guy who did nothing wrong to deserve the attention of Mesa Police Officer Phillip “Mitch” Brailsford.

On January 18, 2016, Daniel Shaver, a traveling pest-control worker, was in between shifts at his motel, a La Quinta Inn and Suites in Mesa, Arizona. In the elevator, he met a man and woman who’d just finished their own workdays, the two later testified in court. Did they want to join the 26-year-old Texan for Bacardi shots in his room?

They’d already begun drinking when one of the guests asked about an unmarked case in the corner. Was it musical instrument? No, a pellet gun. He used it at work. His job was to go hunt down birds that had flown into businesses including Walmart. Soon he was standing by his room’s window showing off his pellet gun to the man. Down below, two motel guests in the La Quinta Inn and Suites hot tub looked up and saw a man with a gun near a fifth-floor window. Someone called 911.

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Lawyer, Smack?

No, this isn’t about the lawyer version of whack-a-mole, as interesting an idea as that may be. It started in earnest* about a year ago, when padawan Keith Lee of Associates Mind and author of The Marble and the Sculptor decided to start a slack room just for lawyers. It was to be a place for lawyers to hang in private and talk cool lawyer stuff.

A year later (I’m guessing on dates, so don’t hold me to it), Keith’s got many hundreds of lawyers hanging around. What this means is sweeping up the joint and herding the feral lawyers has become a job. It was time to make a change.

It’s exploded and grown beyond what I thought possible. I used to think a dedicated “social media for lawyers” was a dumb idea, but that was obviously wrong. Continue reading

Bad Mom In The First Degree

A parent has a constitutional right to raise her child in the manner she see’s fit, which may well be a disturbing thing to those who are certain they know better, but that’s how the deal generally works. And parents also have the right to free speech. Neither of these did much to help Ginger Breitzman.

The Court of Appeals has upheld a West Allis woman’s disorderly conduct conviction for yelling some really nasty stuff at her 14-year-old after he burned some popcorn.

The District 1 court panel agreed that Ginger Breitzman’s conduct was “profane” and, under the circumstances, could have provoked or caused a disturbance, even in their own home.

After her son had burned some popcorn in 2012, she called her son a “retard,” a “(expletive) face,” and a “piece of (expletive).” She argued that wasn’t enough to provoke a disturbance.

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Sgt. Keith Sweeney Indicted For Murder In Oklahoma City

Oklahoma County District Attorney David Prater would be just the sort of prosecutor you might expect to seize upon any excuse to cover up a killing.

David Prater began his law enforcement career at 19 years of age when he was hired by the Cleveland County Sheriff’s Office as a Deputy Sheriff. At the age of 20, Mr. Prater became the youngest cadet ever to graduate from the Norman Police Academy. During his time with the NPD, he was a dedicated and respected Master Police Officer.

In addition to his patrol duties, he was a member NPD’s Tactical Unit, Underwater Rescue and Recovery Team and the Norman Police Department’s Pistol Team. Additionally, he was responsible for training other officers in patrol techniques, firearms, and Emergency Vehicle Operations and was awarded more than 20 commendations from Norman’s Chief of Police.

With a background like this, many would naturally leap to the conclusion that Prater would love him some cops too much. This is worth noting as a reminder that simplistic assumptions about people, their integrity, what goes on in their heads, are often wrong. Continue reading

Kopf: Can You Hear Me Now?

In this post, I make several random observations about the Carpenter cell phone ping-records case. There is no particular order to my musings.

First Random Observation: Despite the fact that he and I almost got into a naked mud wrestling match over another Fourth Amendment issue, I agree with Professor Orin Kerr’s point of view in the Carpenter case. Among other things, he argues in his amicus brief (at page 3) that:

Obtaining historical cell-site records from a cell phone provider is like obtaining testimony from an eyewitness to suspicious conduct. By contracting with a cell phone network provider to deliver their calls, customers ensure that network providers may be available to testify – whether in person or by sending records – about how the providers made that delivery for their users. Just as a person voluntarily exposes himself to observation by traveling in public to deliver a communication, so does a person voluntarily expose himself to observation by hiring an agent to deliver his communications remotely. The Fourth Amendment is not implicated by compelling testimony from an eyewitness or by observation in public.

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Short Take: Woman Power (You Knew This Was Coming, Right?)

The list of sex abusers reads like a who’s who of powerful dudes. Until it didn’t.

Singer Melanie Martinez has been accused of sex assault by a former friend, who claims to have “repeatedly said no” to her sexual advances.

Timothy Heller, a Los Angeles-based aspiring singer, came forward with the allegations late Monday, sharing her story on Twitter about how she said Martinez, an artist who shot to stardom after appearing on NBC’s “The Voice,” sexually assaulted her.

This came out on the twitters, when Heller told the story of how Martinez, her best friend and the person who “saved her life,” turned the relationship sexual. Continue reading

Fourth Circuit’s Flaccid Decision

The story of Manassas, Virginia detective David Abbott’s obsession with obtaining images of 17-year-old Trey Sims’ erect penis has become legend, much to Abbott’s dismay given his deep association with possession of such things. There was a crime to solve, and this young man had what the detective believed to be the offending penis.

After all, when one makes obtaining images of a teen’s erect (not flaccid, which would be entirely different) penis his life’s goal, why see it as a sick perversion rather than the dogged determination of a dedicated detective? After the district court conferred qualified immunity on Abbott*, the Fourth Circuit reversed.

We cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others.

Here, the obvious, unconstitutional invasion of Sims’ right of privacy that was required to carry out the warrant rendered reliance on that warrant objectively unreasonable, thereby eliminating the protection that a search warrant typically would have afforded an executing officer.

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Wedding Bell Blues (Update)

The Supreme Court will hear oral argument in one of the most contentious cases of the term, Masterpiece Cakeshop v. Colorado Civil Rights Commission. In advance of the argument, the Cato Institute put on a debate between Ilya Shapiro and John Paul Schnapper-Casteras, Special Counsel for Appellate and Supreme Court Advocacy, NAACP Legal Defense Fund. It was not only a great debate, but more importantly, demonstrated that we can have thoughtful discussion about contentious issues. Some of us, at least.

To many, the issue on the table is one of conscience. Can Jack Phillips, because of his sincerely held beliefs, refuse to bake a cake for a same-sex wedding? This is certainly the issue that most people have in mind when arguing the point. Remember when USA Today twitted that this would re-open the same-sex wedding debate? Remember when a Colorado state senator tried to change the law to create such a right?

There is no doubt that a great many people refuse to accept the Supreme Court’s ruling in Obergefell v. Hodges, and see Masterpiece Cakeshop as their way around the law. Why doesn’t the First Amendment’s Free Exercise Clause protect their belief that same-sex marriage is wrong? As strongly as these people may want to believe, this just isn’t the law. Continue reading

A President And The “I” Word

The victim of the crime was certain the evidence was sufficient, if not overwhelming, to convict the perpetrator. Yet inexplicably, the prosecutor decided not to pursue the charge, filing a nolle prosequi and ending the case. Did she obstruct justice?

Does the answer to the question change based upon whether the motivation was malevolent or benign? It’s a rational basis to distinguish prosecutorial decision-making, and thus comes into play when questioning whether the President of the United States, the nation’s supreme law enforcement officer under Article II of the Constitution, can be indicted for the crime of obstruction if he tried to exercise his constitutional authority for improper purposes.

Trump’s lawyer, John Dowd, asserted that the president cannot, by definition, obstruct justice because he has the supreme authority to decide what offense is to be prosecuted, and thus has the power to express his views on whether a prosecution should be maintained. Continue reading

Bennett: The Art of Representing a Hall of Shame Offender at Sentencing

This blog post is based on a sentencing over which I presided on Tuesday, November 28, 2017. It was a “Welcome Back, Kotter” sentencing in the sense that I had already sentenced the African-American offender in 2000 to a 60-month mandatory minimum in a crack case. He did not do well on supervised release, violating less than 3 weeks after starting his term. The next year, I revoked his TSR and sent him back to prison for 24 months.

On November 28, 2017, he was before me on possession with intent to distribute methamphetamine. He had 24 criminal history points and 29 unscored convictions, including an assault on a police officer (in 1994) resulting in the officer being injured and unable to work for 8 months. The officer testified live at the sentencing.

The U.S. Attorney’s Office could have filed two § 851 enhancements—requiring a mandatory life sentence. They filed neither. The AUSA filed a powerful sentencing memorandum focusing on the offender’s terrible criminal history, failure to pay over $100,000 in back child support, history of noncompliance, and extraordinarily high risk of recidivism. The AUSA asked for both an upward departure and upward variance. The quantity of drugs was small, so the offender’s guideline range was only 130-162 months with a maximum of life. Continue reading