In a variation of an old theme, Jesse Ball suggests that we add a new duty to citizenship:

I propose that all citizens of the United States of America should serve a brief sentence of incarceration in our maximum-security penitentiaries. This service, which would occur for each person once in a decade, would help ensure that the quality of life within our prisons is sufficient for the keeping of human beings.

While this has been urged upon prosecutors and judges so they get an appreciation of what it means to cage a person for a period of time, Ball’s suggestion goes to a different purpose.

Just think, if everyone in the United States were to become, within a 10-year period, familiar with what it is like to be incarcerated, is there any question that the quality of our prisons would improve? It also follows that the skill and understanding of our juries might grow apace, as they would now know to what they were condemning those they condemn.

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Even when you, the offender, help the government by providing really important substantial assistance in the investigation or prosecution of another person, if the prosecutors and the case agents are pissed off at you because you played games with them, it is very hard to get a sentence-reduction motion. See, e.g., United States v. Scarpa, No. 16-303 (2^d Cir. June 22, 2017) (while it was undisputed that Scarpa, a “made member” of the Colombo crime family, had provided substantial assistance in locating Terry Nichols’[i] long-hidden cache of explosive components, because the defendant was otherwise a lying sleaze ball[ii], the district court lacked authority to compel the government to file a substantial-assistance motion and reduce the defendant’s sentence by 10 years; a district court “may not override the government’s refusal to make a [sentence-reduction] motion on the basis of the court’s own balancing of the costs and benefits of making such a motion.”)

Nonetheless, as I have learned over the last 25-plus years, sometimes a federal district judge must get down and dirty with intransigent prosecutors. The judge must slap the government upside the head.

Attribution (as requested): WorldArtsMe

This post is about Mary Ann Rounsavall. It is also a post about my long wrestling match with a line prosecutor over his refusal to file a motion to allow me to go below the statutory minimum because of Rounsavall’s substantial assistance in the prosecution of her brother. Continue reading →

There could have been a post here about Chicago cops, Rahm Emmanuel, the New York Times, federal consent decrees and Walter Katz. I can say that with certainty, as I spent a decent amount of time writing that post. But as I was reaching its conclusion, nailing down the narrow point I hoped to make, I realized something: I was wrong.

Well, maybe not exactly wrong, but I wasn’t right either.

I subscribe to the notion that I don’t know what I think until I see what I write. Whether it’s an event, a decision, an op-ed, I begin with an idea in mind that seized my interest and I write. I head in a direction and start tapping keys in an effort to make the point I think I want to make. But rarely do I know where it will end up. Sometimes it goes smoothly and the path is clear. I head off in a straight line and end up exactly where I thought I would at the outset.

Other times, however, I bump head first into a roadblock. It may be an inconvenient fact. It may be a failure of logic. It may be gap in the line of reasoning too broad to leap over in a single inference. Who knows? I certainly don’t, until I get there.  Continue reading →

What was the guy thinking when he first decided that sticking a lobster into his mouth was a good idea? But after someone figured out it would be better cooked and dipped in melted butter with a dash of lemon, it proved delicious. No one said to themselves at the dawn of the Dark Ages, this is a really bad idea, but they figured it out and gave us the Enlightenment.

Herbert Hoover was a much better choice of president than Warren G. Harding, but the Great Depression still wasn’t much fun. Yet, we endure. The United States endures.

To many, we’re in political valley with no peak in sight. To others, we were there before and are now climbing the mountain. Time will tell who is right, whether we like the answer or not. No amount of hysteria or outrage, anger or hatred, is going to prove what the future holds. To the extent any guidance can be found, it’s in our history rather than fears of the coming Apocalypse. And what our history shows is that America’s dedication to freedom has enabled us to overcome the transient cultural shifts that seemed so critical at the moment but whimsical in retrospect. Nixon sucked, but do you wear bell bottoms and love beads?

Stop mourning over the corpse of a great nation. We’re not dead yet.

Whenever Drug Warriors hear challenges about how non-violent, first-time offenders are being unjustly sentenced to rot in cages for decades, their go-to rebuke is the adored Sentencing Guidelines “safety valve.” They say that the valve saves those who are regarded as the most sympathetic defendants in the drug war from being sentenced to cruelly disproportionate sentences. But the real valve, as seen on the ground, provides a different picture.

The following is a not-uncommon tale involving a federal narcotics case and how the “safety valve” sentencing provision, which is meant to help out those criminal justice virgins, can be rendered meaningless in light of how drug conspiracies are usually prosecuted:

Joe is a young guy who hangs with the “wrong crowd” but has never had a brush with the law. In times of financial strife and sheer boredom – he’s a millennial who has a shit job and a girlfriend he can’t stand — he gets asked by one of his amigos to drive a car that has some meth in it from point A to point B. He’s only told that there are 2 kilos hidden inside, nothing else, and agrees to get paid $1,000 per kilo. It’s not much, but he’s new to the game and naïve, so he takes it.

He doesn’t package the stuff, load it into the car, negotiate the deal, or even meet the buyer or seller. He just agrees to drive the drugs. It turns out that his amigo has been under government surveillance, and eventually Joe gets caught with the car and the stuff. He gets indicted in federal court, and is charged with conspiring with his confederates to possess with intent to distribute 50 grams of pure* meth. Continue reading →

Adam Leitner Bailey’s response was as brilliant as it was ridiculous: It’s racism. That was the retort to demands that his client be held accountable for a vicious attack.

Pit bull Luna went berserk in front of the Chelsea Modern on W. 18th St. near 10th Ave. and “viciously attacked and mauled” Kinje, a Havanese mix that looks like a tiny shih tzu, around 12:15 p.m. on May 31, according to the lawsuit filed Thursday in Manhattan Supreme Court. Both dogs live in the building with their owners.

“There was a tremendous amount of blood,” according to Jo Lynn Sorenson, Kinje’s walker, who filed an affidavit that’s part of the lawsuit.

For the unwary, a “walker” is a New York City occupation that exists to compensate for the hubris of keeping animals in apartments and pretending to care for them when you have more important things to do. But this wasn’t just a pet. Of course not. Pets are subject to limitations, including their ability to attack other animals. Continue reading →

The feeling to an appellate lawyer is a lot like the feeling to a trial lawyer when the prosecutor hands over the statement. When you ask the defendant if he talked to the cops, he swears he didn’t. Then you take a peek at the statement, in his handwriting, signed, saying he did it plus kidnapped the Lindbergh baby. Fuck.

You look at the defendant. His face turns downward, he looks at his shoes. Your brilliant defense, that trial you could beat, just crashed through the floor. Not because the cops got the goods, but because the defendant couldn’t not talk. It wasn’t murder. It was suicide. He killed his defense.

The appellate lawyer reads the transcript, and his antenna goes up. the hair on his arms reaches for the sky. He starts to tingle, because he feels it coming before the words on the page say so. There it is, the smoking-gun error of law, the mistake that can’t be deemed harmless and wiped away with the sweep of a robed arm. There it is, the swan dive into reversal that ends with . . . fuck. No fully formed legal argument; no objection. Waived.

To be clear, I’m not saying “only appellate lawyers can avoid waiver” or “waiver is never a problem for appellate lawyers.” Waiver is sneaky. Really sneaky. Even the best lawyers (including the best appellate lawyers) will occasionally get stung by a sneaky waiver problem. Continue reading →

Lindy West’s opening gambit would have brought a smile to any lawyer’s face, but for the fact that it was written by Lindy West.

The first thousand times I was accused of being a politically correct, anti-free-speech censor, it seemed silly. The charge was always in response to some relatively innocuous bit of cultural criticism — like, say, that racism is bad and artists should try not to make racist art if they don’t want to be called racists. Or that if comedians want to joke about rape, they should write their jokes very carefully because rape is very horrible. I saw it happen to other women, too, women who had asked for better representation in media, or had even gone and said the words “video games.”

I always laughed at the anti-free-speech charge. I was not the government. I literally could not censor anyone. I cannot go around handcuffing comedians and dragging them off to joke jail. (Anyway, I am a prison abolitionist. That goes for open-mic-based offenses, too.)

Criticism is not censorship, and no matter how insistent Twitter’s free speech brigade might be, I felt safe knowing that we could always go back to the text. The Constitution was on my side.

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They’re gathering kindling, branches, anything that burns outside 100 Centre Street. Not the prosecutors. Not the police. Not even the judges. No, it’s the new hires at the Legal Aid Society, and the only reason they’re making a bonfire of their vanities is they can’t get a permit to build gallows unless they have enough gender-inclusive restrooms.

For whom are they putting in this effort? The most vile, the most evil, the most politically incorrect person in all of indigent defense.  Appellate Squawk.

If the wrath of the humorless is a satirist’s badge of honor, we’ve been awarded the equivalent of the Nobel Prize for our recent post “Are you a cissie?”

The post (trigger warning!) is a spoof of compulsory workplace “trainings” proselytizing the fashionable notion of gender issues über alles. Our point was that although genderism may be a harmless enough ideology for personal life, it’s intrusive, irrelevant and potentially offensive to foist it on people we’re supposed to be defending from criminal prosecution.

Remember the good old days, when public defenders concerned themselves with, you know, public defense? No more, kidz. There are far worse dragons to slay, people who use words like “cissie,” which made not one, not two, but six (with their requisite “me toos”) Legal Aid lawyers immediately accuse Squawk of progressive heresy. Burn the witch! Continue reading →

Not all of you. Maybe even not most of you. But for those of you, young men, often with mad coding skillz which are much in demand these days, I have something to tell you and it’s going to make you sad. You smell.

I get it. The homeless Jesus look is all the rage in Silicon Valley. Recreated Pink Floyd tees, dark jeans to hide the grime. Shoes that are the foot equivalent of shit posting. The studied appearance of no fucks to give. Yes, it’s a look. But you smell.

Shower. Every day. Wash your hair. Every day. Cut your finger nails, even if you feel some compulsion to give the appearance of an 80’s coke fiend, unless you’re gender transitioning.

Much as your skills may be in demand, people do not want to sit next to someone who smells. Your boss doesn’t want to be in the same room as someone who smells. You will lose a gig, be denied a promotion, not get that post with that new team you so desperately want. And you want to know why? Because you smell. Continue reading →