The Texas Tornado, Mark Bennett made a sadly ironic, yet funny, twit: Today’s Twitter Instant Law Degree Specialty is in criminal-defense ethics. The renewed attacks on Hillary Clinton (as well as Tim Kaine) for having defended the accused are making their rounds again, being argued as if there was any issue of impropriety involved. There’s not. There is no legitimate argument on this issue.

For some time, Hillary Clinton’s critics have been citing her defense of a 1975 rape case to attack her, and her defenders have been absolving her of any blame. Kathy Shelton — the victim¹ in the case — has openly condemned Clinton and asserted that Clinton gratuitously attacked her, and others have criticized Clinton’s description of the case from a recorded interview in the 1980s. The criticisms are (mostly) wrong and the defenses are (mostly) right.

You can question Clinton’s post-representation demeanor, but there is nothing, absolutely nothing, to question about her representation of her client. But we’ve been over this many times before. It’s a “tried and true” weapon in politics that relies on ignorance. Continue reading →

In the LA Times, Mike Sacks writes about the new term of the Supreme Court with one justice down. He assumes, with good reason, that the Court has avoided taking on “blockbuster” cases because of the Senate’s intransigence in doing its job.

“Would scores of people camp out on the Supreme Court sidewalk to see that argument?”

That’s the question that separates sleepy SCOTUS terms from the seismic ones. And this new term’s docket, so far, is a snoozer. Yet I come to celebrate, not condemn, this development.

While it may be because every term of Court isn’t earth-shattering, Sacks writes that it’s also to avoid 4-4 deadlocks in ideologically-bounded cases.

While the court last term managed to salvage narrow unanimity in a contraceptive mandate case that equally divided the justices by party line at oral argument, the eight members were not so successful in four other cases, including the 4-4 deadlock that left in place a lower court’s decision to block President Obama’s executive actions on immigration.

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Black parents have “the talk” with their children for a reason. They love their children. They don’t want them to be killed. When President Obama gave a speech that mentioned “the talk,” cops were outraged. Their “president” would extol their virtues, that they’re heroes, that they are to be respected because…reasons. Not out of fear.

Except that’s the view from cop fantasyland. This is the view from inside the car looking at the cop who just stopped you, if you happen to be black.

“When I went to talk to the driver, I found a young black male, who was looking at me like he was absolutely terrified with his hands up. He said, ‘What do you want me to do officer?’ His voice was quivering. He was genuinely scared. I just looked at him for a moment, because what I was seeing made me sad. I said, ‘I just don’t want you to get hurt.’ In which he replied, with his voice still shaking, ‘Do you want me to get out of the car.'”

No, every black person does not get shot. Every black person is not treated like a subhuman threat. Every cop does not hate and fear blacks. But what parent wants his kid to be the one with a march and memorial? Continue reading →

For as long as I can remember, Kings County, better known to the rest of the world as Brooklyn, had a DA problem. It was a second-string job, never having the prestige of Manhattan, but being Brooklyn’s District Attorney was a huge job. After the fiasco known as Joe Hynes was finally thrown out on his butt as scandals revealed wrongfully convicted defendants by rogue, lying cops, a new guy rode in on his black horse to clean up the mess.

Ken Thompson was a former federal prosecutor, best remembered for his role in the prosecution of Justin Volpe, the cop who proudly sodomized Abner Louima in the bathroom of the 70th Precinct. Thompson went private practice until challenging Hynes for Kings County District Attorney. He won the election and took over the post in 2014, a reformer and racial justice activist who would clean up the mess on Court Street.

On Sunday, October 9th, at age 50, Ken Thompson died of cancer.

In the short time he held office, he accomplished quite a bit, including a Conviction Review Unit, where his assistants worked to exonerate 20 wrongfully convicted defendants. Continue reading →

If you thought the fallout following the hysteria over the Brock Turner sentencing was over, gird yer loins. Female lawprofs are just getting started, riding the wave of feelz beyond the return of mandatory minimums and elimination of statutes of limitations. Rushing to catch the wave is this upcoming article in Wake Forest Law Review by criminal law professor Erin Sheley.

Victim impact statements (VIS) are long-disfavored among legal commentators for allegedly injecting unnecessary, negative emotion into sentencing at the expense of the defendant, with ambiguous informational benefits to the sentencing body. Most traditional arguments both for and against VIS turn on purely retributive or utilitarian grounds.

This essay takes up the Stanford sexual assault victim’s statement to propose an expressive framework for understanding the function of VIS, which resolves much of the theoretical confusion surrounding the traditional justifications. I show how the expressive goals of criminal punishment have long been distorted by the mediation of traditional news reporting.

I then analyze the legal relevance of the particular criminological values expressed in the Stanford statement to show how unmediated victim narratives may counterbalance media distortion, particularly in the age of social media transmission. I conclude that the criminal justice system better serves its expressive function by formally incorporating VIS into sentencing.

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It’s a civic duty to pay one’s taxes, and like most Americans, I look forward to April 15th when I can take pride in contributing my share to pay for the government’s fine work.

–Said no taxpayer ever

Of the few things Americans can agree upon, Brookings Institute Fellow Vanessa Williamson says it’s that we love us some taxes.* No, seriously.

Pollsters have been asking Americans whether “it is every American’s civic duty to pay their fair share of taxes.” Every year, about nine in 10 Americans agree with that sentiment. In 2009, 3 percent of respondents disagreed. That level of accord is very rare. To give you a point of reference: About 6 percent of Americans think the Apollo 11 moon landing was faked. On the civic responsibility of taxpaying, Americans are about as close to consensus as they ever get.

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At Jonathan Turley’s blog, weekend contributors fill in the void on those off days. Darren Smith has done yeoman’s work there, and I’ve enjoyed and appreciated his contributions.  For that reason, this short post is offered to direct your attention to what his wife suffered at the hands of American Airlines.

My wife attended a professional conference in the District of Columbia and afterward was scheduled the night before last to fly from Reagan International to Albany to visit family. I remained home during her travels.

She was to board an American Airlines direct-flight to Albany at 7:30 PM. Just before then, the desk announced a delay, which then turned to a cancellation. It seems the flight was short a crewperson who allegedly was to travel from Charlotte. The airline then announced the flight would be delayed until 11:30 but changed this to a cancellation. Several of the original passengers were allowed to rebook on another flight but by the time my wife arrived at the counter there were no seats available. The next flight would be in the morning.

Essentially, they told my wife she was on her own. This was after she informed them she did not live in DC.

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When local cops engage in conduct that seems abusive and discriminatory, cries are heard demanding a federal investigation. Despite all that happens, there remains some inexplicable belief that the feds are the saviors who will swoop in and fix those awful local cops. Except when those bad local cops have been funded by those same wonderful feds.

[State police spokesman David] Procopio said these operations were done under the auspices of the Drug Enforcement Administration’s Cannabis Eradication Program, which gives state authorities money to uproot pot plants. This year, the DEA gave Massachusetts $60,000 for marijuana eradication efforts, according to federal documents obtained and published by journalist Drew Atkins.

The feds have the money. They dole it out in programs to local cops, and local cops do what the program requires because that’s how they get the money. They want the money. They want the money to keep coming. It’s free money to the cops, so why wouldn’t they? Continue reading →

Not always, but occasionally, there was some kid in the locker room who regaled others with his sexual conquests. Some were fascinated by it. Most thought he was full of shit. Guys lie about such things to make themselves appear more manly. Feminists call this “toxic masculinity.” Men call this bullshit. The guy was a joke, a goofball, pretending to be some sort of stud he wasn’t. He wasn’t funny. He was just a pig, going beyond what was tolerable even in the locker room where it was just us guys.

Was Donald Trump talking smack? Beats me. Never having been rich or famous, there is little about his world that conforms to mine. There is plenty of smoke, and even some fire, to suggest that he was the cartoon character engaged in sexual assault and rape. Adding the word “violence” to speech is nonsense. Grabbing women’s crotches is sexual violence. It’s physical. It’s criminal. This is the real thing.

Trump is an archetype of the male who believes himself entitled to women’s bodies. Bill Clinton was too. Clinton is only relevant to make a point, that men who seek and attain power have a tendency toward the belief they can get away with anything.* They can indulge their worst nature with impunity. Not all of them, I assume. I can’t say for sure since I’m not in the locker room (or on the golf course) with them, but obviously some. Then again, given what is demanded of people who seek such power, what sort of twisted mentality puts themselves through such scrutiny? You have to be nuts to run for president, so we get nuts.

Trump served a purpose in this presidential campaign. He was never a viable candidate to anyone with knowledge of civics, government or law. He was a dolt on those issues. Whether he was a brilliant builder of gaudy buildings is another story, but he was running for president. He had no capacity to serve in that role. Of the things he needed to know, he was flagrantly ignorant. That was obvious from the start. Continue reading →

In a remarkable decision, Chief Justice Brian Quinn of the Texas Court of Appeals, Seventh District at Amarillo, does something that could destroy the very foundation of the criminal justice system. He’s intellectually honest.

A logical reasoning sequence based upon some “training and experience” — because drug traffickers have been seen breathing, then breathing is an indicia of drug trafficking. Because they normally have two hands, then having two hands is an indicia of drug smuggling. Silly — maybe, but one can wonder if that is the direction we are heading. Whether it be driving a clean vehicle, Contreras v. State, 309 S.W.3d 168, 171 (Tex. App.—Amarillo 2010, pet. ref’d), or looking at a peace officer, Gonzalez- 2 Galindo v. State, 306 S.W.3d 893, 895-96 (Tex. App.—Amarillo 2010, pet ref’d), Contreras v. State, 309 S.W.3d at 171; or looking away from a peace officer, GonzalezGalindo v. State, 306 S.W.3d at 896; or a young person driving a newer vehicle, Gonzalez-Galindo v. State, supra; or someone driving in a car with meal wrappers, Deschenes v. State, 253 S.W.3d 374, 383 (Tex. App.—Amarillo 2008, pet. ref’d); or someone driving carefully, Contreras v. State, supra; or driving on an interstate, see Clatt v. State, No. 07-07-0130-CR, 2008 Tex. App. LEXIS 7250, at *2 (Tex. App.— Amarillo September 29, 2008, no pet) (mem. op., not designated for publication) (wherein the official testified that I-35 was a “drug corridor”), most anything can be considered as indicia of drug trafficking to law enforcement personnel. Maybe this is because drug smugglers just happen to be human beings and being such, they tend to engage in the same innocuous acts in which law abiding citizens engage. See Gonzalez-Galindo v. State, 306 S.W.3d at 896 (observing that “[c]riminals come in all makes and colors. Some have hair, some do not. Some are men, some are not. Some drive cars, some do not. Some wear suits, some do not. Some have baseball caps, some do not. Some want attention, some do not. Some have nice cars, some do not. Some eat spaghetti, some do not. And, sometimes, some even engage in innocent activity.”).

Whoa. And what, you may ask, makes a spaghetti eater suspicious? Continue reading →