At the Atlantic, Conor Friedersdorf starts with a fair point, that cops see the same scenario we do, but through their peculiar lens.  This isn’t meant to suggest anything bad, but rather that we all see things through our own perspectives and biases.

For example, one anecdote concerns a man in the back of a police car who told his arresting officers that he was having trouble breathing. They ignored him. He died. Many who watched the video saw callous cops who placed no value on a human being’s life. But police officers who watched the same tape saw two cops who thought that their seemingly healthy arrestee was faking, as so many people fabricate medical conditions to avoid being taken to jail.

Horribly, this isn’t an uncommon phenomenon.  But if you view it from the perspective of a thousand complaints, only one of which is real, the reaction of police makes some sense, even if it remains inexcusably callous.

But from there, Conor takes the point to a place not so easily explained. Continue reading →

When D.C. Magistrate Judge John Facciola announced his retirement, and his bench was to be filled by long-time federal prosecutor G. Michael Harvey, with extensive experience in national security issues, a broad smile swept through Main Justice.  Mag. Facciola was a bit tough on warrants for electronic searches, and perhaps Mag. Harvey would be less, well, difficult.

Was the Magistrates’ Revolt over?  There was still Mag. Paul Grewal out of the Northern District of California, but why rush to the left coast when the stumbling block close to home is gone?  But not all search warrant applications happen on a coast, and not all magistrate judges in flyover land are pushovers.

In the District of Kansas, Magistrate Judge David Waxse joined the revolt by refusing to sign off on a DEA search warrant for a cellphone in In the Matter of the Search of Cellular Telephones within Evidence Facility Drug Enforcement Administration, Kansas City District Office.  Orin Kerr at Volokh Conspiracy describes the opinion:

Waxse’s opinion is pretty unusual. It includes a long section titled “Applying Constitutional Protections in the Digital Era” that offers an interesting theoretical account of the role of precedent. According to Waxse, magistrate judges should not be overly beholden to Supreme Court precedent when technology changes: Continue reading →

One of the dirty little secrets of those who sit on the far side of the courtroom from the jury is that the Innocence Project makes our efforts harder.*  You see, the idea that an innocent person has been wrongfully convicted is horrific to all good people, Justice Scalia excepted.

The good that comes of it is that the mechanisms giving rise to wrongful convictions are put under scrutiny, shown to all the world as junk in either their application or effectiveness.  The bad is that it focuses public concern on the innocent, as if those are the only people entitled to our concern.  The guilty are throwaways.

The fact is that most defendants are guilty.  Maybe not guilty as charged, as overcharging is a rampant problem given that prosecutors are trained to charge hard and fast, to use charges to coerce outcomes, whether cooperation or plea. But then, most people can’t be bothered parsing the details of a prosecution for such minutiae as how guilty a person is, what did he do and what didn’t he do.  Guilty is guilty, and we have enough on our hands worrying about the innocent that there is little room left to concern ourselves with the guilty. Continue reading →

At Popehat, former federal prosecutor Ken White writes of the revenge porn slimebag, Hunter Moore, plea that will put him in prison.

For better or worse, Moore’s plea agreement shows that the recommended sentence under the federal sentencing guidelines is quite lenient: the parties stipulate to start at an offense level of 8, which permits probation as a sentence. The government may well argue for multiple enhancements, but the likely range of recommended sentences is low. But the government exercised its power to make Moore plead to one count of aggravated identity theft, putting a mandatory-minimum two year floor on his sentence, on top of which the judge will impose the guideline sentence. Moore’s quite fortunate that the aggravated identity theft statute is relatively lenient about mandatory minimums; it gives the judge discretion whether to make them consecutive when there are multiple counts. In other words, if the feds made Moore plead to five counts of aggravated identity theft, the mandatory minimum sentence would still be only two years.

Regardless of whether you think a mandatory minimum of two years, with the potential for significantly more, is adequate retribution, his sentencing guidelines at level 8 would have otherwise essentially assured him a sentence of probation.  Instead, he’ll get prison.  Continue reading →

Stephanie West Allen sent a video my way, responding to an op-ed at WaPo about how feminist writers are considering retirement rather than suffer the slings and arrows of outrageous fortune. Michelle Goldberg writes:

This is a strange, contradictory moment for feminism. On one hand, there’s never been so much demand for feminist voices…

On the other hand, while digital media has amplified feminist voices, it has also extracted a steep psychic price. Women, urged to tell their stories, are being ferociously punished when they do…

By “ferociously punished,” Goldberg means two things.  First, that they receive crude, violent or flagrantly offensive responses, devoid of substance and vicious in their threats or rhetoric.  Second, they endure criticism of their positions, arguments and “facts.” Continue reading →

Among the many dreams of those of us who keep an eye on police misconduct and abuse is the creation of a database of those police officers who engage in impropriety, a clearinghouse of bad cops.  This has been tried by a number of individuals and organizations, most small and limited in their reach.

While an interesting source of information on occasion, rarely has it served its lofty goal.  The Legal Aid Society in New York City is trying to do better.

The largest organization of public defenders in the country is building a “cop accountability” database, aimed at helping defense attorneys question the credibility of police officers in court. The database was created by the Legal Aid Society, a New York–based nonprofit that represents an average of 230,000 people per year with a staff of more than 650 lawyers.

The database already contains information about accusations of wrongdoing against some 3,000 NYPD officers, and is being used regularly by Legal Aid lawyers. The ambition behind the project is to create a clearinghouse for records of police misconduct—something the NYPD itself does not make public—and to share it with defense lawyers all over the city, including those who do not work for Legal Aid.

Continue reading →

It was a rushed conversation, a reporter from somewhere who needed a quote to go with his story. I was on my way out, but took his call to lend him a hand. I appreciate the problems reporters have in getting hold of someone when they’re on deadline, and he had tried another lawyer who had no clue what to say, so he referred the lawyer to me.

I wanted to help, as I knew the answers to his questions, but there was a problem.  The reporter was calling me from his cellphone.  About every third word was lost. Bad connection? Walking around? Beats me.  I told him that he was breaking up, and so he did whatever he did and asked if it was better. It was, but that only lasted until he started talking again. It went back to bad almost immediately.

Whether he could hear me was unclear.  He didn’t complain, but then, maybe he didn’t care or was so used to bad reception on his cellphone that it was normal for him.  Afterward, I wondered whether he heard what I said, or only two-thirds of it. Or less.

My complaints about cellphone reception are nothing new.  Long ago, I faced the message on my voice mail from that new arrest that was incomprehensible. Continue reading →

The speeches flowed.  The reports damned. Ah, yes, it would all change.  Rikers Island would no longer be the cesspool of violence it had been since, forever. Important people said so. That was August, 2014.

On Sept. 2, four correction officers pulled Jose Guadalupe, an inmate classified in medical records as seriously mentally ill, into his solitary-confinement cell at Rikers Island and beat him unconscious.

Details?  Sure.

Continue reading →

In the Age of Disinvitation, it’s to Ohio State’s credit that K.C. Johnson was not only invited to speak, but allowed to speak. Prevailing collegiate wisdom is that no sounds should be uttered that could hurt any students’ feelings, and K.C., if nothing else, was going to say things that would make students sad.

Johnson, who co-wrote the book about the false rape allegation against the Duke lacrosse team, has been trying to bring sanity back to the debate over how college campuses handle sexual assault accusations by explaining repeatedly that accused students should not be convicted based on an allegation, without the ability to defend themselves.

And that’s where the activists disagree.

After all, hearing words that don’t confirm their deeply held feelings has become unacceptable in the world of intellectual growth and freedom.  It’s both the nouvelle view of free speech, redefined to mean only speech with which students agree, combined with the neo-feminist view of rape being conclusively proved by accusation, false or not. Continue reading →

Over the past few years, textualism has not only become fashionable, but swept the legal world by storm under the leadership of Justice Antonin Scalia and his faithful sidekick, Bryan Garner. The gist of their view is that the specific language of a statute is not only all that’s needed to interpret it, but all that’s permitted.  The use of legislative history as a tool in getting to “the intention” of a law is wrong, as it’s merely a “meaningless front for lawmakers to grandstand.”

It’s hard to muster a counterargument to that.  Yet, Second Circuit Chief Judge Robert A. Katzmann does, offering in his own book, Judging Statutes, support to the view that legislative history still has a role in statutory interpretation.

David Lat at Above the Law gives a recap of Judge Katzmann’s interview at Yale Law School and provides a listicle (because ATL readers adore listicles) of the five takeaways. Not entirely surprisingly, he begins with a rousing homage to Scalia:

Textualists like Justice Antonin Scalia oppose the use of legislative history in statutory interpretation, arguing that “[w]e are governed by laws, not by the intentions of legislators…. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself.” Opponents of using legislative history argue that it can be manipulated, abused, and quoted selectively. As one judge famously put it, relying on legislative history is like “looking over a crowd of people and picking out your friends.”

Continue reading →