A basic tenet of due process requires that a law give a defendant notice of what conduct is criminal.  Without such notice, there would be no way to know that it shouldn’t be committed. So it comes as no shock that the New Jersey Supreme Court held that section 3 of the Bias Intimidation law, N.J.S.A. 2C:16-1, was rejected as unconstitutional in State v. Pomianek.

While the other prongs of the crime remain untouched, a facial challenge prevailed against the third prong:

A person is guilty of the crime of bias intimidation if…

(3) under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim’s property was selected to be the target of the offense because of the victim’s race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

In other words, a crime occurs because the victim felt intimidated, and the victim’s feelings weren’t unreasonable.  As the New York Times reported: Continue reading →

The Drug Enforcement Administration has been so incredibly effective in eradicating demon narcotics that it no longer has any cartel kingpins that require its time and, instead, its agents can hang around bus stops.  Bet you didn’t realize that these guys deserved a statue.

Federal drug agents may be racially profiling and unjustly seizing cash from travelers in the nation’s airports, bus stations and train stations. A new report released by the Office of the Inspector General for the U.S. Department of Justice examined the Drug Enforcement Administration (DEA)’s controversial use of “cold consent.”

What makes this unusual, to the extent it is unusual, isn’t that it happens, but that Mike Horowitz, DoJ Inspector General, calls out the DEA for engaging in these “interdiction” approaches.

When it comes to exceptions to the Fourth Amendment, none is better than consent, which vitiates all protections that might otherwise be available to an individual to protect themselves from a search.  Continue reading →

There is little doubt that the insertion of a law enforcement “tactical” expert in the trial process will have an overwhelming impact on the jury’s “understanding” of what they see on video.  The word “understanding” is in scare quotes because it is, in this usage, scary: there is nothing remotely resembling understanding coming out of the clash of experts informing the jury what they’re seeing.

Rarely is it as flagrant as in the Dallas case of Jason Harrison, a mentally ill man killed by the two officer who came to help.

Harrison’s mother had called 911 the morning of June 14 to request that officers come to her Red Bird home to help bring Harrison, who his family said was bipolar and schizophrenic and off his medication, to Parkland Memorial Hospital.

She had called police frequently for help with her son, who often stopped taking his medicine, Sean Harrison said.

Officers Andrew Hutchins and John Rogers, who both have training dealing with the mentally ill, shot Harrison five times after he disobeyed their commands to drop the screwdriver. They were protecting themselves after Harrison lunged at them and moved the screwdriver in a “stabbing motion,” said their attorney, Chris Livingston.

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When word spread like wildfire that United States District Court Judge Mark Fuller of the Middle District of Alabama was a wife-beater, and then pleaded guilty (Edit: this is wrong, see update below)  to it, the only question left was whether he would skulk out of the courthouse on his accord or have to be dragged out kicking and screaming.

As an Article III judge, Fuller had life tenure in the position, subject to good behavior.  Wife beating certainly isn’t good behavior, but it would require impeachment by the Senate to remove him from office. And bad though it seemed, it wasn’t something he did on the bench, though his judicial career had its share of controversy.

The Alabama judge was criticized for sitting on cases brought by the government even as his aviation company was getting hundreds of thousands of dollars in taxpayer-funded business. Appointed by a Republican, he was denounced for putting a former Democratic governor in manacles after a corruption conviction.

He was the talk of the courthouse for having an extramarital affair with his courtroom assistant, and for his messy public divorce.

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Almost every lawyer and lawprof, upon learning of Robert Durst’s confession caught on video and microphone and aired in the finale of HBO’s “The Jinx,” thought the same thing:  He’s toast. Staring into a bathroom mirror, he muttered:

“What the hell did I do? Killed them all, of course.”

Then came the questions. But isn’t it hearsay? What about Miranda? How can it be authenticated? What about chain of custody?  Was it an illegal wiretap?  Lawyers shook their heads. Continue reading →

When Supreme Court Chief Justice John Roberts gave his speech to the Fourth Circuit Judicial Conference in 2011, academics everywhere cried sad scholar tears.

Specifically Roberts claimed that legal scholarship is not relevant to the work of lawyers and judges, saying he . . . believes there is a great “disconnect between the academy and the profession.”

Roberts continued, “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

Mean, hurtful words indeed.  So mean, so hurtful, that they still sting today, which is why Richard Re at PrawfsBlawg felt compelled to prove them to be lies. Continue reading →

As challenged in a New York Times editorial, the confirmation of Loretta Lynch for attorney general, which apparently isn’t otherwise problematic to senators of either party, is being held captive to more political concerns.

What does the abortion issue have to do with the prevention of human trafficking? Nothing.

What do either of those things have to do with Loretta Lynch, whom President Obama nominated more than four months ago to succeed Eric Holder Jr. as attorney general of the United States? Even less.

Yet Ms. Lynch’s confirmation as the nation’s top law enforcement officer — which seemed like a sure thing only a few weeks ago — is being held hostage to last-minute political mischief.

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Are there no rules?  It might seem that way, given how federal prosecutors handle their discovery obligations. Some prefer to bury you in 187 bankers’ boxes of junk, while others think the number 16 in the Rule refers to the total number of pages they’re required to disclose.

But Brad Heath at USA Today proves otherwise.

WASHINGTON – Five years ago, after a major corruption case imploded because federal prosecutors had improperly concealed evidence, the U.S. Justice Department ordered its lawyers to start turning over more information to criminal defense lawyers. But the rules for what prosecutors must share and when remained almost entirely secret, until now.

USA TODAY obtained copies of the department’s internal guidelines under the Freedom of Information Act and is publishing them here.

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Immediately after the University of Oklahoma/SAE scandal broke, Brady Henderson of the Oklahoma flavor of the American Civil Liberties Union issued a press release:

We join with OU President David Boren, as well as the majority of OU students, faculty, and alumni, and with an overwhelming number of Oklahomans in their disgust at SAE’s conduct this past Saturday night.

We applaud President Boren’s aggressive response to the SAE’s actions, and we encourage the OU administration to be equally aggressive in ensuring that the due process rights of students remain protected throughout any disciplinary processes against Fraternity members.

Of course, President David Boren’s “aggressive response” was to eviscerate the First Amendment rights of those involved.  The Okies then changed their minds: Continue reading →

Sure, those of us who focus on cool stuff used by cops have been aware of the existence of the StingRay, the cell site simulator, which spoofs a cell tower to capture all cellular service within its sphere.  We’re also aware that its manufacturer, the Harris Corp., sells them subject to a non-disclosure agreement.

Based upon this, federal law enforcement agencies have lied to courts and the public about its existence, its function and its actual use in particular investigations.  But not because they’re bad people, but because the NDA requires them to, and they really can’t tell or the bad dudes won’t fall into their trap.

But that’s all done now, as StingRay has gone big time, gracing the pages of the New York Times.  Well, “done” may not be an accurate description.

The issue led to a public dispute three weeks ago in Silicon Valley, where a sheriff asked county officials to spend $502,000 on the technology. The Santa Clara County sheriff, Laurie Smith, said the technology allowed for locating cellphones — belonging to, say, terrorists or a missing person. But when asked for details, she offered no technical specifications and acknowledged she had not seen a product demonstration.

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