When former Harris County, Texas, district attorney Devon Anderson jailed a rape victim as a material witness, screams of outrage were heard. It wasn’t that the witness, the alleged victim, wasn’t needed to prosecute the defendant, but the callousness of treating the victim as a criminal. It reflected a failure to grasp her relative role in the system, that Anderson’s desire to convict overrode any sensitivity to the needs of the person who suffered the harm of the crime.

But this outrageous handling of a victim gets taken a step too far when the victim assumes that it’s now her system, to do as she wills it, to accomplish her goals. Crimes are prosecuted in the name of the people, not the victim. The victim is not the client, the complainant, the boss. She’s a witness to a crime. She should be treated respectfully in the process, but not because it’s all about her, but because prosecutors shouldn’t be monsters. And most aren’t.

Deborah Cotton was the victim of a crime, shot in the stomach at a New Orleans parade. She has since died of her injuries, but left behind an essay explaining why she refused to cooperate. Continue reading →

I wouldn’t swear that it’s an affliction that only affects criminal defense lawyers, but it seems that we suffer from it far more than most.* When we see something that we think is wrong, we say so. We say so in clear language. We call it what it is, and make no bones about it. To other lawyers, this may come off as overwrought, as they prefer more moderated words, less clarity. That’s not our way.

There was a twit yesterday by an academic, who retwitted a twit by a former Obama administration adviser that was total malarkey, suggesting that border patrol agents had been great guys, honoring the law, until now. It was a basic anti-Trump twit which promoted the lie that CBE wasn’t just as bad before. I responded by calling it out. This wasn’t meant as a commentary on the life and times of this particular academic, but as a commentary on the one twit as an example of a recurring theme among profs.

This is an example of the myopia of academics, as if it never happened before b/c you were too busy looking elsewhere, and only now notice.

This is where I’m going dark on certain details, and it’s not offered to besmirch anyone for their feelz, but to make a different point. One twitterer for whom I have a great deal of respect responded that my twit was “uncharitable,” questioning whether I was aware of the academic’s full body of work. Do I have to be? Am I precluded from criticizing one twit because the person hadn’t been a miscreant in every public assertion? Continue reading →

Typos happen. There’s no shame in making a mistake when typing in letters or numbers, but there’s no pride in it either. You screwed up. When the mistake is made by a cop, they screwed up too. Not that it matters to the New York Court of Appeals*, which decided unanimously that a miss is as good as a hit.

Nothing in the record before us suggests there was anything unreasonable about the police officer’s actions or that the officer had any illegal motives. He ran the license plate and accessed the DMV database in the performance of his official duties. Therefore, the check was lawful, and the information from the database provided him with a valid reason to stop defendant’s car.

Holy Heien, Batman. The cop had no reason to run the plates. He observed no violation. But he decided for no particular reason to punch the plate in anyway, and boom, he got a hit, a suspended registration for failure to pay parking tickets because the database said so. Lucky?

And while we are mindful of the concerns about license plate checks, Continue reading →

Within the guild, disagreeing with judicial decisions is a staple of our existence. We dispute them in motions, briefs, memoranda and, occasionally, on a blawg. Rarely, however, is a judge attacked for being disingenuous in the motivations leading to the decision. Sure, there is pro-police bias. Sure, there is anti-minority bias, explicit or implicit. But rarely the rank politicization of the judiciary.

Until now. Mark DeGirolami has written an op-ed for the Weekly Standard claiming that the blight of “fake news” has now reached the bench, coining a new usage: Fake Law.

Something ugly is happening to the First Amendment. It is being contorted to enable judges to protest Donald Trump’s presidency. The perennial impulse of judges to manipulate the law to achieve morally and politically desirable ends has only been exacerbated by the felt necessity to “resist” Trump. The result: Legal tests concerning the freedoms of speech and religion that in some cases were already highly dubious are being further deformed and twisted.

Welcome to the rise of fake law.

DeGirolami extends the fake news phenomenon from the spin fed us by self-righteous journalists to make sure that our news sources lead inexorably to the “right” conclusions to the motivations of judges. Continue reading →

To argue, as so many are apt to do, over the latest edition of the Repeal and Replace law is pointless at this stage. The Senate has yet to deal with it, and the pointlessly rushed House bill takes a bad law, Obamacare, and makes it far worse. How it will end up remains a sufficiently long way off as to make it a pointless discussion at this time. It’s bad policy.

But one aspect, coverage of pre-existing conditions, is at the core of the debate over whatever eventually is enacted, and it’s game on for the battle over the saddest stories designed to persuade the nation that people who suffer from pre-existing conditions can’t be left out. There are two thrusts to this argument*, the first being that everyone has or will have a pre-existing condition at some point, the purpose of which is to make this an issue that touches each of our lives so that we see the personal benefit in supporting coverage.

The second is that those who suffer pre-existing conditions aren’t bad people, didn’t do something to deserve it such that their problems are unworthy of our concern and the basic appeal to emotion, the sad stories of those who will be hurt. And indeed, the stories can be very sad.

When my child was first diagnosed, I struggled with uncharacteristic rage. I felt as if other families were enclosed in a smug bubble, spared the understanding that misfortune can be random and inexplicable. Over the years, I have learned that anger was sadly misplaced. I have watched tragedy touch too many. Schadenfreude is no remedy. Continue reading →

Ed. Note: The following post was written last week and, in a moment of weakness, submitted to the New York Times as an op-ed. Yesterday, it was politely declined. 

As Adriene Holder, the Attorney-in-Charge of the Legal Aid Society’s civil practice, said, “Mayor de Blasio is not the court, judge and jury.” Where does he come off deciding that there are 170 offenses that he deems too evil, too icky, too unworthy, for a piece of the $16 million he has set aside in his budget to provide free lawyers for immigrants facing deportation?

These immigrants may not the same ones you’re hearing about, as they aren’t necessarily undocumented. These may be completely lawful immigrants, well-documented, here since they were six months old. They may have families and businesses. They may pay taxes and hold green cards, allowing them to work like anyone else. They aren’t the illegals Trump wants to rid from our midst.

And yet, they aren’t worthy of Bill de Blasio’s largesse. As commissioner of the Mayor’s Office of Immigrant Affairs, Nisha Agarwal, spun it: Continue reading →

The basic concept is that there are three competing interests, three legs of the stool, if you will. Security. Liberty. Equality. The problem, as with any stool, is keeping the three legs in balance. If one is longer, or shorter, the stool tilts and you fall off.  The three legs are rarely of the same length, as the moment’s influences make on concern prevail over the others. Today is no exception.

The genesis of this platitudinous twit is the anticipated religious Executive Order, feared to destroy everything from gay rights to the ozone layer. As it has yet to be released, the fears might be a bit overblown. It even has its own hashtag, #LicenseToDiscriminate, so that people prone to anticipatory freaking out have a place to call home. Continue reading →

While the criminal law ecosystem is somewhat fragile, the players managed to live together. We didn’t necessarily get along all the time, but we realized that we were all necessary parts of the system. Begrudgingly, perhaps, we admitted that each of us was necessary to make the system work. Even the most vicious of prosecutors, cops, understood that the defense had to exist.

This is why the indictment of New Orleans Public Defenders investigator Taryn Blume is so shocking. And dangerous.

“One Taryn Blume late of the parish of Orleans, between the first day of January in the year of our Lord, two thousand and fourteen, and the first day of April in the year of our lord, two thousand and fourteen in the parish of Orleans, did impersonate a peace officer or assumed, without authority, any uniform or badge by which a peace officer is lawfully distinguished …” the indictment read.

“I had no idea why or what that meant,” Blume, now 26, told the Guardian.

Continue reading →

In flyover country, the old saw about six degrees of separation does not apply. It is more like two degrees. This is a post about the intimacy (and that is not too strong a word) that exists between criminal defense lawyers, prosecutors, judges and, albeit infrequently, clients. Be forewarned, this examination ends with a literal punch to the gut and a heartrending chuckle.

Alan Stoler has devoted most, but not all, of his professional life to representing those accused of crimes. He was once a prosecutor who handled all manner of heavy duty criminal cases. Another prosecutor of about the same age is a fellow by the name of Alan Everett. They graduated from the University of Nebraska College of Law at about the same time. During their time together as prosecutors, these fellows played racquetball and cheated on the golf course. I doubt that either one of them was very good at these sports, but that hardly mattered. They were and are close friends.

Both went on to bigger and better gigs. Alan E. became an Assistant United States Attorney. He is among the best I have ever encountered. He is scrupulously fair but tough as nails in the most understated of ways. He is funny. By that I mean he is wry in a shaken but not stirred sort of way.

Alan S. became a CDL, and not just any criminal defense lawyer. He has taken on all comers—from death penalty cases to drug cases that threatened life in prison. Like Everett, Alan S. is among the best I have encountered. He was so good that our court appointed him as the Criminal Justice Act panel representative, serving in that capacity for more than a decade. He taught trial advocacy at the UNL law college for 22 years. Stoler’s sense of humor is similar to Everett’s, although a bit more world-weary, as you shall see at the end. Continue reading →

It’s far short of a backlash to the legitimization of advocacy journalism, but at least some are beginning to question whether it’s a good idea for media that purports to be neutral to be flagrantly partisan. That people have lost faith in media may have something to do with it, although those people aren’t the people media cares about. They’re not their kind of people.

At Slate Star Codex, Scott Alexander takes a long and prolix scalpel to Vox’s David Robert’s post, Donald Trump and the rise of tribal epistemology. Don’t blame me, I didn’t write the headline. But the subtitle says more:

Journalism cannot be neutral toward a threat to the conditions that make it possible.

When you start out with sophistry like that, where can you possibly go? Continue reading →