Ever wonder just how far down the rabbit hole a person can go if they believe too passionately? Just ask a new mommy.

New moms on Instagram have launched a new trend to combat “rape culture”: They are asking their infants for permission before picking them up.

According to Heat Street, the trend began last week after Nisha Moodley, mother of 6-month-old Raven, made an Instagram post featuring a selfie with her son and an explanation of her new parenting style, complete with a “endrapeculture” hashtag.

And who doesn’t want to end rape culture, whatever that is. Assuming you’ve stopped laughing or have removed your head from your palms, consider that many religious beliefs fail to pass the absurdity test, and yet people believe. And in this case, it’s merely a couple steps away from the silly notions that underlie the morass of feminist notions of bodily autonomy that are long on ideology and short on practicality or rationality.

Of course, what’s a mom to do when a diaper needs changing and the kid says no?  Continue reading →

What does New York real estate litigator Marc Kasowitz have in common with his client, Donald Trump? Neither has a firm grasp of limits. Of knowledge, competence or ethics. But unlike Trump, who enjoys certain protections by dint of his office, Kasowitz is fair game for anyone with a gripe.

It started innocuously enough, Kasowitz chatting up the nice folks walking the White House halls.

In recent days, Mr. Kasowitz has advised White House aides to discuss the inquiry into Russia’s interference in last year’s election as little as possible, two people involved said. He told aides gathered in one meeting who had asked whether it was time to hire private lawyers that it was not yet necessary, according to another person with direct knowledge.

This may seem like a fair enough question to ask the lawyer the president hired, and he answered it. No charge. Everybody loves free legal advice. And how could Kaz not be right? After all, he must be the best lawyer ever or our billionaire prez would never have hired him, right?

Marc E. Kasowitz, a New York civil litigator who represented President Trump for 15 years in business and boasts of being called the toughest lawyer on Wall Street, has suddenly become the field marshal for a White House under siege.

It certainly looks like Trump trusts him, and he’s probably an exceptional civil litigator*. Except this isn’t civil litigation. Just as running a country isn’t the same as running a hotel, defending a president from obstruction charges and impeachment isn’t tussling over closing dates.

So what was so wrong about the advice to White House aides that it wasn’t yet time to lawyer up? It’s fairly obvious to lawyers: Kaz represents a client whose interests are in potential, if not likely, conflict with those of the unrepresented individuals to whom he’s saying, “nah, you don’t need a lawyer, Buhwawawa.”

What he should have done, and what would have been obvious had he been moderately experienced in such matters, was to give Upjohn warnings, also known as “corporate Miranda,” that he’s not their lawyer and anything they say can be disclosed, as its unprivileged. Kaz should have informed (not advised) the aides that he cannot advise them and they must seek independent counsel, unburdened by the facial conflict of interest, for an answer to their question.

Unsurprisingly, two ethics complaints have been filed against Kasowitz, one in D.C. and the other in New York’s First Judicial Department, where he’s admitted to practice law. They’re over-drafted showpieces, based on nothing more than a newspaper’s report, alleging violations of Rule of Professional Conduct 4.3 (communications with unrepresented people) and 4.2(a) (communication with person represented by counsel). Sexy stuff.

Still, had the complaints been one paragraph based on claims made by space aliens, there’s a good chance the nuisance complaints would evoke a departmental disciplinary committee’s demand for a response. Failure to respond is itself a basis for discipline.

But these aren’t the sort of complaints that lead to disbarment. At worst, Kaz will get a public admonition to never do it again. It’s not like he raided an infant’s trust so he could buy blow and prostitutes, which might bring more serious sanctions. If he responds with nothing more than, “Oops, sorry,” he’ll survive. Then again, if he tries to rationalize what he did. there’s a chance he could get a more serious spanking because of arrogance than error.

Error, however, is the point. This was just basic ignorance and inexperience, on Kasowitz’ part. He may have Trump’s trust, but he doesn’t have the background to be a good choice for the job. No matter how much he’s been paid, or how much Trump loves him, or how great a civil litigator he may be, when it comes to managing a criminal investigation against his client and dealing with the emanations and penumbras on the battlefield, the bluster that makes him a big macher in real estate law means nothing in crim law.

The moral of the story? Never bring a knife to a gun fight. Especially a dull knife. Kaz may be the coolest real estate litigator ever, but pretty much any lawyer vaguely familiar with white-collar defense would have known better than to make such a stupid mistake.

*For the unwary, this is a slur coming from a criminal defense lawyer.

In the movie, turned play, turned movie, Little Shop of Horrors, Audrey II demands flesh and blood from Seymour.

The internet does the same. Whether it’s on the twitters or here, people demand, feed me.

A disconnect has grown between the limits of personal knowledge, combined with a little bit of subject-matter interest or ideology, that has given way to the expectation that every random idiot on the internet is entitled to demand that he be spoon-fed information, whether to learn it (“just out of curiosity”) or argue against it.

The old question, raised years ago, of whether the internet makes people stupider misses the point. The internet contains massive quantities of information. Some true. Some false. Some brilliant. Some moronic. What you glean from it is based on where you go, what you see, what you’re inclined to believe. But this goes back to a time when people put in that itty bitty effort to find out what they wanted to know. Continue reading →

The shooting by James Hodgkinson, wounding majority whip Steve Scalise, a Republican congressmen enjoying baseball practice, was a terrible thing. The editorial in the New York Times explaining its significance was a terrible thing as well.

The former was an act of violence by a twisted man who, based on his ranting, hated Trump and Republicans. This is ordinarily when the Times would whip out the word “terrorism,” to inflame without informing. But not this time.

An American would once have been horrified and shocked by such savagery. An American today would be right to be horrified — and not very surprised.

The lead-in is fairly obvious, that violence, savagery as they call it, is now normal, which leads inexorably to the question, “why?” How did savagery become commonplace in America? There are a great many answers to this question, and no answer. But there is one response that isn’t an answer because it’s a lie. Continue reading →

You know how you can walk up to the White House, knock on the oval office door and demand that the president sit there and hear out your grievances? Or how you get to stand, if not sit, in the White House briefing room and ask your question? Because you are an American, and it is your right to hear what your devoted public servant, the President, has to say, not to mention give him a piece of your mind.

Right? Of course not. Except maybe on Big Block of Cheese Day.

So is twitter different?

President Trump’s alleged blocking of members of the public on Twitter on what appear to be viewpoint-based considerations, preventing them from reading his tweets and responding to them, raises serious constitutional issues.

There’s also a certain panache to being blocked by Trump. After all, it’s not every American who can piss off the president enough to get blocked. It’s nowhere near as easy as getting the FBI to open a file on you. Anybody can do that. Continue reading →

I will call him Stan. Stan was a middleweight in the interstate meth business. That’s how I got to know and sentence Stan.

With a weapon, Stan was involved in more than 1.7 kilos of meth. His criminal history category was VI—the worst of the worst. So, I hit Stan with 292 months (almost 25 years) in prison despite the fact that he was only 22. Happily, the Sentence-O-Matic 1000 worked exactly as intended.

Later, under Rule 35(b) and a retroactive change in the drug Guidelines, I reduced his sentence twice. Ultimately, he got a mere 151 months. He did his time, and got out of prison.

Stan was into his thirties by then. If you were aware of the recidivism study conducted by the Sentencing Commission in 2016, you would wager a lot of money that Stan would reoffend. Continue reading →

The Attorney General of Texas, Ken Paxton, issued an opinion calling it unconstitutional. Montana tried it. The legislature stepped in, passing a resolution that it was unconstitutional. The bars in Pennsylvania, Illinois and South Carolina also rejected it as unconstitutional. Not a single state has adopted it.

ABA Model Rule 8.4(g):

It is professional misconduct for a lawyer to:

(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules. (Emphasis added.)

Part of this rule is uncontroversial. It had already existed in most disciplinary codes, and reflected the extant law under Title VII. But then, part of it exists nowhere else, except in the fevered brows of social justice warriors lawyers. Continue reading →

Humor is a remarkably effective means of making a point. In the hands of a master craftsman, it’s far more compelling than the most passionate plea of the most sincere advocate. The”why” is easy. We actually want to pay attention to humor, and, when well done, it can be far more incisive than any lecture.

Then there’s Samantha Bee. She has a TV show called “Full Frontal,” because she didn’t want to be too flagrant. There’s only one (with about a million subparts) issue with Sam. She’s kind of a dolt. Granted, who am I to call her a dolt, given that she’s on TV and I’m, well, not, but Alf was a big hit too, so there.

Samantha Bee went after an issue of some importance to criminal defense lawyers. Well, not exactly “an issue,” as she starts by addressing the failure of using a preclusive field drug test as affirmative proof of drugs. But then she couldn’t control her impulse and stay on topic.

Continue reading →

It was announced that patron of the arts, Agnes Gund, sold a Lichtenstein for $150 million so she could put $100 million to work. Not too shabby.

Ms. Gund is confirming that sale now, revealing that she parted with the painting (for what was actually $165 million, including fees) for a specific purpose: to create a fund that supports criminal justice reform and seeks to reduce mass incarceration in the United States.

This new Art for Justice Fund — to be announced Monday at the Museum of Modern Art, where Ms. Gund is president emerita — will start with $100 million of the proceeds from the Lichtenstein.

“The larger idea is to raise awareness among a community of art collectors that they can use their influence and their collections to advance social justice,” said Darren Walker, the Ford Foundation’s president. “Art has meaning on a wall, but it also has meaning when it is monetized.”

Which is it? Criminal justice reform or social justice? They are not the same thing. Continue reading →

For years now, the criminal justice system has embraced technology, algorithms, empiricism, in a belief that it improves fairness and gives judges and jurors the ability to do better than the historic knee-jerk voodoo that’s been hidden behind fancy phrases like “judicial discretion” and “beyond a reasonable doubt.”

What if tech can sincerely distinguish the guilty defendant from the innocent? The defendant who will kill again or flee the jurisdiction? Isn’t that good for the defendant who won’t, who will get that “break” he was denied when it was nothing more than a gut-based guess?

But then, there’s money to be made off the system. The sellers claim that they can’t disclose their source code or they’ll suffer irreparable harm. The judges want the black-box magic, and fear disclosure will kill the goose that lays the empirical eggs. They may not be sure it works, or how it work, or whether it works, because it’s science, but they know their own failings and figure the black box must certainly do better than they can.

And the defense? There’s that Sixth Amendment right to challenge the basis upon which a guy is going to be convicted, imprisoned, held forever, and it’s not possible to challenge a black box when we have no clue what goes on inside of it. There’s nothing new here.  There’s no interest in changing things. And given the conflict between protecting the vendor’s trade secret and protecting the defendant’s constitutional rights, who wins? Continue reading →