Watching the competing Mueller twits during the pair of House committee hearings was a bit surreal, as the sides waged the battle of interpretation, that his testimony either conclusively nailed the coffin on Trump’s presidency or exonerated Trump of all wrongdoing. As Ken White perceptively twitted, the hearings conclusively proved that everyone’s beliefs were proved.

If you care to review the testimony, there is no shortage of passionate pundits in the bigly papers to tell you what to think, what it means and what will or should happen from here. Some of these brilliant folks are lawyers who should know better, but refuse to be humbled by either knowledge or capacity to understand what the Mueller Report said and found. They have a cause that needs their support, and they will use every tool at their disposal to spin this sucker as hard as they can. If they can convince you, convince a nation, they can put this matter to rest.

It’s likely that there will be no more public appearances by Robert Mueller, no more public discussions of what his report, available to be read over and over if that’s how you enjoy spending your leisure time, says. And there should be no doubt that it says exactly what Mueller and his people intended it to say. What it does not say is that either side wants it to say. Continue reading →

In the New York Times Magazine, a peculiar article by Claudia Rankine, a Yale English professor, muses about a provocative question. It’s peculiar not just in its putative subject matter, white privilege, but in its buried lede. The article purports to be about Rankine’s inquiry of white men about what they think of their privilege. This would be odd enough, since the perspective of white privilege exists primarily from the outside. It’s like asking a fish to talk about its feelings on water.

Perhaps this is why one day in New Haven, staring into the semicircle of oak trees in my backyard, I wondered what it would mean to ask random white men how they understood their privilege. I imagined myself — a middle-aged black woman — walking up to strangers and doing so. Would they react as the police captain in Plainfield, Ind., did when his female colleague told him during a diversity-training session that he benefited from “white male privilege”? He became angry and accused her of using a racialized slur against him. (She was placed on paid administrative leave, and a reprimand was placed permanently in her file.) Would I, too, be accused? Would I hear myself asking about white male privilege and then watch white man after white man walk away as if I were mute? Would they think I worked for Trevor Noah or Stephen Colbert and just forgot my camera crew? The running comment in our current political climate is that we all need to converse with people we don’t normally speak to, and though my husband is white, I found myself falling into easy banter with all kinds of strangers except white men. They rarely sought me out to shoot the breeze, and I did not seek them out. Maybe it was time to engage, even if my fantasies of these encounters seemed outlandish. I wanted to try.*

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In a weird way, we lucked out with Jessica Yaniv. First, because the story happens in Canada, but second and more importantly, because we’re usually confronted with the easy problems when the critical choices are made, with the harder, more absurd problems, coming only after we’re locked into a position. Yaniv served up the absurd early enough to realize the consequences of foolish policy.

This week, British Columbia’s Human Rights Tribunal (CHRC) — a self-described “quasi-judicial body created by the B.C. Human Rights Code” — held hearings on whether or not female beauticians should be forced to handle male genitalia. The complainant, known until Wednesday under the alias “J. Y.” owing to a court gag order, is Jonathan/Jessica Yaniv, a self-identified transgender woman.

Yaniv has filed 16 different complaints against estheticians in the past year. Yaniv argues that, as a transgender woman, being denied services on account of her gender identity was discriminatory.

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In the rush to empty prisons nicely evidenced by the passage and implementation of the federal First Step Act, I fear that the policy wonks and the judges who follow them disregard a patent truth.[i] There is evil lurking among those who are elderly, yet seek release.

By using the word “evil,” I mean an existential threat to a civilized society. I do not intend the foregoing to be provocative. I mean it literally.

Before Harry Potter’s train leaves, transporting us magically to a world where good consistently triumphs, we need to remember that the journey would not be worth taking without Voldemort showing us that we are risk. We would do well to remember him. Continue reading →

Lawyers have long used the well-told story to persuade jurors. There’s nothing like a heart-wrenching story to delude and manipulate the feelings of the unwary, and it’s our job to take advantage of every manipulative tool available to serve our client’s cause.

But that’s fine for individual cases, where the worst that can happen is one guilty man goes free. When it comes to making public policy, there’s a sad story to serve every purpose, but our policy choices should be based on detached facts, empiricism if available and legitimate, rather than the last tear-jerker story told. And that’s what made the New York Times article about 77-year-old Albert Flick so wrong.

Had Mr. Flick been imprisoned longer or remained on probation, the authorities might have been able to keep a closer eye on him. But Mr. Flick had served his sentence and had the right to live freely.

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When I was in law school interviewing for jobs, I learned that there were Jewish firms and non-Jewish firms. It was worthwhile interviewing with the former. The latter, not so much. It wasn’t clear to me why any law firm would care about its lawyers’ religion, since my understanding of the point of hiring associates was to find the ones who would do the best job representing clients. What else could possibly matter?

Years later, sitting outside on the coast of Long Island Sound with friends, having a glass of red wine, it was explained to me. My friend’s father was there with us. He had been a partner in a white shoe law firm, as they were called, back when I was a snot-nosed kid lawyer, so I asked him. He explained that it wasn’t anything personal. They didn’t hate Jews. They didn’t think much about it at all.

“So what was the problem,” I asked. It was “culture,” he explained. We didn’t know what fork to eat with at dinner. We didn’t know where to buy our suits. We tended to be a little too loud, too vulgar, too funny. We weren’t raised in the ways of Choate and Harvard. We weren’t like them, with “them” being the WASPs. They had nothing against us, but didn’t feel comfortable letting us in their club, where everyone understood how to be. Continue reading →

There is no dispute that racism exists and, where it exists, should be condemned. But that banal statement doesn’t answer the question of what’s racist. More importantly, it fails to address the ubiquitous cries of racism at every ill, whether real and flagrant, imagined or perceived by the accuser even if unintended by the accused.

Charles Blow uses three rhetorical questions to make a point about racism. It’s putatively about Trump’s “go back” comments, and the dichotomy in America in appreciating the racist nature of the comments and labeling them so, but it goes much further.

When did we arrive at the point where applying the words racist and racism were more radioactive than actually doing and saying racist things and demonstrating oneself to be a racist? Continue reading →

The LA Times calls it “unprecedented,” which may be true in the sense that it’s never happened before. But the notion that corporations aren’t above the law isn’t entirely novel, and even the behemoths, Facebook, Instagram and Twitter (“FIT”), must comply with a California state court order in a criminal proceeding. Imagine that.

In an unprecedented move, the California Supreme Court has allowed the defense in a gang-related murder trial in San Francisco to obtain private postings from Facebook, Instagram and Twitter.

In a brief order Wednesday, the court let stand a San Francisco judge’s ruling that the social media companies must turn over the private postings being sought by defendants in a murder trial.

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As most of the nation celebrates the fiftieth anniversary of one of the most miraculous accomplishments of our age, landing on the moon, there are some who can take no joy. So what if Neil Armstrong and Buzz Aldrin did what no human beings ever did before and, by doing so, fulfilled JFK’s challenge to a nation to be as great as it could be?

First, the New York Times had to take its shot.

After putting the first man in space in 1961, the Soviets went on to send the first woman, the first Asian man, and the first black man into orbit — all years before the Americans would follow suit.

Sure, they didn’t make it to the moon, but what really matters is cosmonaut diversity. Continue reading →

Ed. Note: Greg Prickett is former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.

In Texas, the state legislature meets every two years for 140 days. It would probably be better if it met every 140 years for two days, but that’s beside the point. At the end of 2018, Congress passed a law to allow the growth and production of hemp.[i] Well, it just so happened that the Lege in Texas was going to start its semi-annual regular session within three weeks of the new federal law, and they wanted to jump on the legalized hemp bandwagon. Of course, one of the problems with new laws and bandwagons is that, if the Lege is not careful, there are ofttimes unintended consequences.

That’s what happened in Texas. Legislators promptly introduced House Bill 1325, which adopted the federal framework for distinguishing hemp, with under 0.3% tetrahydrocannabinal (THC), from the evil devil weed marijuana,[ii] with over 0.3% THC. This would allow Texas farmers to grow hemp for industrial purposes, such as making rope, fabrics, paper, etc. and not be prosecuted for growing marijuana. It seemed like a good idea, was debated and passed by both houses of the Lege. It was then presented to the governor, Greg Abbott, who signed the bill into law. Continue reading →