This story is one that would have generated an argument so boring and tedious that no one would be able to stand following it through from beginning to end.  At the beginning, there was science.  Maybe not science to real, honest-to-god type scientists, who would use charts and graphs, statistics, maybe even a Venn diagram for the hard-o-thinking, to make their point.

This was not science, but we, lawyers, and the lawyers who quit to become judges, aren’t scientists either.  So when some guy from the FBI Lab, which everybody knows is the best there is because everybody keeps saying it’s the best there is, says this is scientifically valid, who are we to question it?

Gamso lays it out.

They call themselves criminalists or forensic scientists or something with a fancy name. They come into court explaining that they’ve done these tests hundreds of times.  There are, they say, a whole bunch of points of comparison.  And when they find a match, they can point to those points. Continue reading →

Even though I twitted about this story a few days ago, the New York Times Sunday Magazine officially comes out on Sunday, so I waited for now to write. Read Nick Pinto’s cover story called The Bail Trap.  We’re in must read territory for anyone who thinks they have a clue how it happens and what it means to be that guy standing in front of a judge, who is about to fix bail.

What Pinto manages to do is capture the stench of arraignments.  The smell of excrement in lockup.  The sight of a defendant through wire mesh.  The only thing he misses is the bad breath of a guy who hasn’t brushed his teeth in at least 24 hours, whose only meal was a slice of American cheese on white bread, and not the good stuff made of real milk.

Or when you try to make good use of the few minutes you have to speak with your client before being yanked out of the back because the judge needs you, but are interrupted by some guy yelling, “yo, yo, you a lawyer?” followed by some demand or complaint. It’s not that he’s intentionally being rude, but that street talk doesn’t tend to be polite and mediated. Loud and demanding gets the best results, even if it doesn’t fly with a more genteel crowd. Continue reading →

At Popehat, Ken White eviscerates a conceptually bankrupt justification for the “shoot first” mentality of law enforcement promoted at the Blaze.  A Birmingham cop was cold-cocked and pistol-whipped at a traffic stop. Afterward, he explained:

“A lot of officers are being too cautious because of what’s going on in the media,” said the officer, who asked to remain anonymous for the safety of his family. “I hesitated because I didn’t want to be in the media like I am right now.”

As Ken emphasizes, he didn’t exercise restraint because he lacked a factual basis to take pre-emptive action, but because he didn’t want to be the next cop excoriated in the media for needlessly harming an unarmed person.  Then advocates of police safety took up the cause.

Police Chief A.C. Roper sees the episode — as well as the reaction, including celebratory and vitriolic comments posted online alongside images of the wounded officer — as symptomatic of a larger problem, in which some don’t respect law enforcement. Continue reading →

There was moral outrage aplenty as Charnesia Corley was subjected to being digitally penetrated by a Harris County deputy.  Had it been anyone else, a bunch of letters would have been saved by calling it rape, but even though it was  nonconsensual and there was assuredly penetration of a vagina, it was not rape. The deputy was otherwise authorized by law to probe.

The search, this time, was for marijuana.  After a routine traffic stop for allegedly running a stop sign, a deputy smelled pot. It’s unclear whether it was burned or fresh, but he smelled it. And he knows what pot smells like from “his training and experience,” as is uttered in every suppression hearing. It smells “pungent.” Not poignant, though that will do too.

And that is probable cause.  There is no way to capture proof of a smell. It can’t be bottled, tagged and brought into court. But a cop smelling pot is good enough to search a car, because the cop said so and the automobile exception to the Fourth Amendment. Continue reading →

My good buddies at Avvo throw a party for themselves every year in Vegas. You know, that place where whatever happens stays there?  When they got thin on in-house cheerleaders to lead the chorus in singing their praises, they decided to try something new, the Avvo flavor of Ignite Law.

In fairness, I’m a little miffed that I didn’t know about this sooner, as I would have submitted my bid for an all-expenses-paid trip to Vegas on Avvo’s dime:

Lose the iPad for the yPad:  Why buy shiny when you already have yellow on your desk?

But I didn’t know about the contest, and can’t compete with the seven minute blitzkrieg of “Bringing Sexy Back: Do you know what your contracts say?” or “Corporations are people too: Solving this other A2J-like problem is a huge opportunity.”  Important stuff, right?  Oh wait, Avvo doesn’t actually pay the freight? They have to pay Avvo to get a slot to market their wares?  Who would do something so asinine? Continue reading →

The writer uses a pseudonym, Atticus Grinch, and with good reason.  His snarky, self-indulgent whining could potentially win him the title, Prince of the Slackoisie, despite stiff competition.

I was at a fundraising event downtown—accountants, doctors, entrepreneurs and engineers mingled about, cocktails in hand. A young, smug-faced finance guy with expensive shoes came up to me, shook my hand and asked what I did for a living.
“Lawyer.”

A smirk began to curl on his lips and he said: “Hey, what do you throw to a drowning lawyer? His partners.”

Did he laugh? No. Did he cry? No. He did what a self-indulgent whiner does: his thoughts devolved to himself.

Little did he know that earlier that day, I had spent an hour of unbillable time researching effective suicide methods on lostallhope.com.

Continue reading →

The cool thing about “lived experiences” is that they’re undeniable.  You see, you don’t have to prove them, with nasty stuff like facts or reason. They just are. They’re the feelings a person has about their own perceptions of their own experiences.

Only a hater would deny someone’s lived experiences. If you doubt that, ask any special snowflake on any college campus. Between sobs and calling you a hater, they’ll explain. Well, actually they won’t, because the very question is so traumatizing that they will be totally unable to speak until they’ve been comforted in a safe space. Ah yes, lived experiences.

So if it works so well for these fragile teacups, why not a cop?  Remember this protector and server? Continue reading →

A quick (and incomplete) list of things that secure due process for an accused:

• Being informed of the charges against the accused
• Being informed of the factual basis for the accusations in language that is clearly defined and comprehensible
• Being given written statements of allegations of witnesses sufficiently in advance of a hearing to investigate and prepare
• Being capable of obtaining evidence in defense of the accusations
• Being informed of evidence that disproves the accusations
• Being informed of evidence that undermines the credibility of the accuser
• Being given access to all relevant and material evidence, without regard to how that evidence makes the accuser feel
• Being allowed to have competent counsel
• Being given competent counsel if one cannot afford to retain counsel
• Being allowed to have counsel fully participate in all proceedings
• Being allowed to confront one’s accuser
• Being allowed to question one’s accuser
• Being allowed to question witnesses in support of the accusations
• Being allowed to call witnesses in one’s defense
• Not being presumed guilty
• Having adjudicators who are unbiased, competent to reach a logical determination and not trained in methods to rationalize the failings of the accuser and instructed to abide them

Continue reading →

A surprising number of readers told me that they wish I had a paypal “donate” button so they could contribute to the ongoing existence of SJ. That was very kind of them, though I have long avoided having such a button because it was unseemly.

Today, I added the button to my sidebar. I’ve already gotten a donation (thanks, Hal), which kinda tickled me.  By my unscientific calculations, about half of you would rather get money back, because you hate what I write or hate the fact that my “tone” strikes you as displeasing.

Just yesterday, someone who informed me she was my ally also informed me that she didn’t appreciate my tone. She can kiss my ass. My tone doesn’t have to meet her approval, and her narcissistic presumptiveness that I somehow owe her a tone that meets with her approval is the sort of thing that compels me to piss people off.

If you want to donate, thanks. If you don’t, that’s fine too. If you think donating somehow entitles you to some leverage in how I write, what I say, whom I beat and whom I applaud, your feelings will be hurt. I have a button for that too.

Update: If you happen to be from a place that has really good barbecue (which is not New York’s strong suit), a care package would be appreciated too.

A New York Times op-ed raised a serious question, does factual innocence matter anymore?

SUPPOSE someone has been convicted of a serious crime, but new evidence emerges proving his innocence. Does he have a constitutional right to be freed?

The answer might seem obvious, but it is far from clear that the Constitution protects an innocent person against incarceration, or even execution, if his original trial was otherwise free of defects. Despite growing awareness about the problems of unreliable witness identification, questionable forensic evidence and inadequate legal representation of indigent defendants, the Supreme Court has repeatedly declined to decide this basic question — even though some 115 prisoners have been exonerated from death row since 1989.

A strong and compelling opening to a question of fundamental importance.  If nothing else, most of us have an innate sense that the purpose of the criminal justice system is to convict the guilty without convicting the innocent.

There are some who will shrug, that no system can be so perfect as to sacrifice no innocent person to the cause of safety.  As my old train buddy Mike, who went to La Salle Academy with Nino Scalia, used to say, “every once in a while, you have to take one for the team.”  Not that Mike would volunteer.  He was such a kidder, that Mike. Continue reading →