A government of laws, and not of men.

–- John Adams, Novanglus Essays, No. 7

Not the most emotional of sentiments, but one that should matter more to criminal defense lawyers than others, as we represent those most hated by society. If it was enough that our clients were despised, accused of horrible things, convicted with the certainty of the righteous who care nothing of evidence and constitutional rights, they would string them up on the nearest tree. But we rely on a government of laws, even though everyone hates them, to give them the opportunity to test their guilt.

District of Hawaii Judge Derrick Watson issued a nationwide restraining order on the second iteration of Trump’s Executive Order. As Cristian Farias explains: Continue reading →

At the totally not-fake-news site, Slate, University of Chicago senior Osita Nwanevu argues that it’s not at all outrageous to stamp out bigoted speech under the catchy headline, The Kids Are Right. His post is directed at the campus attack on Charles Murray, a cause he deems unquestionably righteous.

Charles Murray, an author and political scientist, was scheduled to give a lecture at Middlebury College earlier this month. Murray is best known for co-authoring The Bell Curve, a book published in 1994 in which he argued that blacks are less intelligent than white people. On March 2, a mix of students and “outside agitators” shut down Murray’s talk and forced him off campus. A professor was injured and hospitalized, and Murray’s car was mobbed.

Putting aside that Nwanevu apparently never read The Bell Curve, since that wasn’t what Murray “argued” at all, his embrace of the pop culture notion that it’s good enough to believe things for them to become “true facts” rather than “fake facts” suffices to hit his stride. Continue reading →

Spying some twits between the Texas Tornado, Mark Bennett, and former prosecutor-cum-defense lawyer (and president of the Harris County Criminal Lawyers Association), and now chief of sex crimes at the Harris County District Attorney, JoAnne Musick, one sentence stood out:

Criminal bar is what, 30 years ahead of civil?

This came in response to a twit by the ABA Journal about women chipping away at “male litigation domination,” an obsession amongst the social justice warriors at the ABA. The point was that in criminal law, we’ve had brilliant women lawyers holding presidencies, representing clients, running prosecutorial offices and trying cases for decades.

It’s always been about merit. No one cared what was between the legs. The only thing that mattered was whether you had the chops to do the job. Try telling a jury a woman shouldn’t win because she’s a woman. Try telling a defendant that his not guilty verdict means less because his lawyer was a woman. And when we had a beer afterward, no one gave a damn what your gender (or color, or any other characteristic) was. You were either a good lawyer or not. That’s all that mattered. Continue reading →

At Fault Lines, Greg Prickett wrote that even the cops at PoliceOne weren’t buying.

When a police officer shoots someone, like Officer Phillip Hancock of the Opelika, Alabama Police Department shot Airman Michael Davidson of Texas in 2014, you would expect that the PoliceOne group would be firmly in Hancock’s corner. Surprisingly, they are not, even though both the U.S. District judge and the U.S. Eleventh Circuit Court of Appeals found in favor of Hancock. There is something wrong with our legal system when the everyday street police officers say that a shooting was bad, yet the courts absolve the officer of any liability.

A bit of insight one gains through the eyes of a cop is that Phillip Hancock, the shooter, appeared to have his gun in “low ready” position. In other words, before Davidson, on active duty in the Air Force, did anything, Hancock was so deathly afraid that he was ready to kill.

For what’s terribly wrong with putting a gun in the hands of this coward Hancock, read Greg’s post. For why the 11th Circuit backed the coward Hancock, look no further than the reasonably scared cop rule. Continue reading →

What were the chances that the nice young man driving the Uber car would be a lawyer? Remarkably good, actually, given that not every new lawyer can get a job as assistant manager of Dairy Queen. After all, they have to earn money to pay off student loans somehow, right?

And that minor detail, that the driver was also a lawyer, explains two things. First, why Jesse Bright wasn’t so easily put off filming the encounter after a cop falsely told him it was against the law. Second, how others can see the manipulative techniques commonly used by cops to “dissuade” people from the exercise of rights under threat of arrest, if not a beating, for not doing what they’re told.

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There were presidents past whose pleasures, if more explicitly known, would make some of us cringe. JFK was one, though images of Marilyn Monroe might not be the worst thing about a president. No one would ever want to envision unsavory images of Pat Nixon. Donald Trump will not find a seat at the round table of Camelot, and no sane person cares to consider his pleasures any more than absolutely necessary.

And yet, serving at the pleasure of the president remains a consideration that any observer of politics must consider. But is it reasonable to ask, “what is this crap?”

President Bush said on March 14, 2007, “U.S. attorneys and others serve at the pleasure of the President. Past administrations have removed U.S. attorneys. It is their right to do so.”

Karl Rove said on March 8, 2007, “Look, by law and by Constitution, these attorneys serve at the pleasure of the president and traditionally are given a four year term.”

Despite this acclimation of unfettered power, there must be some reason for a decision. Of course, “at the pleasure” does not require a reason to be justified. If the basis for a change in Department of Justice personnel is simply on a Presidential whim, then that is as scary, if not more so, than partisan politics.

Note the dates.* This didn’t arise with Preet Bharara’s unanticipated emergence as a progressive darling for refusing to resign upon request of the person at whose pleasure he serves. Continue reading →

The romantic saying is that the eyes are the windows to the soul. This may be endearing to those searching for a soulmate, though the divorce rate suggests a coin toss would do just as well, but is it good enough for a judge to decide upon a term of years? Empirical evidence suggests not.

A famous experimental paradigm called “mind in the eyes” purports to demonstrate this ability. You are shown a photograph of a pair of eyes, accompanied by a short list of words that describe a mental state or attitude, such as irritated, sarcastic, worried and friendly. Then you are asked to pick the word that best matches the emotions the eyes express. My lab has confirmed that test subjects perform marvelously at this task, selecting the expected word more than 70 percent of the time on average, based on a study we conducted using over 100 test subjects.

Northeastern psych prof Lisa Feldman Barrett questioned this result.

My lab, however, has also discovered a hitch in this paradigm: If you remove the list of words and ask test subjects to “read” the eyes alone, their performance plummets to about 7 percent on average. The word list, it seems, acts as a cheat sheet that helps test subjects unconsciously narrow down the possibilities. People turn out to be quite bad at inferring emotions without context. This includes judges and juries.

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On the twitters, New York Times reporter Charlie Savage offered a curiously twisted version of his own story.

BREAKING: Trump demands resignation all 46 Obama holdover US attorneys, including Bharara of SDNY who was to stay on https://t.co/XwIHq9BaZ2

— Charlie Savage (@charlie_savage) March 10, 2017

As reported, Acting Attorney General either “asked” or “instructed” the 46 remaining Obama administration United States Attorneys to tender their resignations. Continue reading →

Not that anyone ever considered crusty old Michael Hayden a credible source of pop culture, but he’s dropped some shade and a poop emoji on a generation in condemnation of leaks of national secrets.

Former CIA Director Michael Hayden told the BBC this week that he blames millennials for the government’s secrets being leaked to the public.

“In order to do this kind of stuff, we have to recruit from a certain demographic,” he said, referring to government surveillance. “And I don’t mean to judge them at all, but this group of millennials and related groups simply have different understandings of the words loyalty, secrecy, and transparency than certainly my generation did.”

He specifically cited whistleblowers Chelsea Manning and Edward Snowden and speculated that whoever recently gave the CIA spy tool files to WikiLeaks was also likely a millennial.

Whether or not his examples bear out his point is another matter. It may well be that “loyalty, secrecy, and transparency” mean something different to Millennials. It may also mean that the government has grown into a very different monster than it was when his generation, and mine, was young. Continue reading →