There are a handful of federal judges, bold and caring enough, who have come out from behind their bench to discuss what doesn’t work, what can be very wrong, about the legal system.  Senior Judge Jed Rakoff of the Southern District of New York is one of them, and offers a thoughtful discussion of how plea bargaining rose to prominence, subverted the system and might be fixed, in the New York Review of Books.

Judge Rakoff starts, and quickly dispenses, with the obvious but necessary statement.

The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes.

After a history of how, and why, we arrived at our current state of affairs, the slide down the slippery slope that began post-civil war and picked up an unstoppable head of steam from the 1960s to 1980s, he arrives where we have been since the Supreme Court ignored every federal judge who ruled on the Sentencing Guidelines and affirmed their mandatory use in Mistretta. Continue reading →

It will come as a shock that Maricopa County Sheriff, Crazy Joe Arpaio, has not seen the light when it comes to profiling people on the basis of race.  It might have something to do with the fact that he keeps getting re-elected because they agree with his views that everyone with darkish skin or an accent is presumptively an illegal, a criminal, and stealing their jerbs, and deserves to be hassled, if not arrested.

This didn’t sit well with U.S. District Court Judge Murray Snow, who retains jurisdiction following a 2007 suit against Arpaio’s office for racial profiling:

A U.S. federal judge on Tuesday ordered a controversial Arizona sheriff to undergo the same training as his deputies to prevent racial profiling and unlawful detention in the wake of the lawman’s recent comments.

U.S. District Court Judge Murray Snow criticized sheriff Joe Arpaio during a hearing in Phoenix for telling a reporter he would have no problem conducting an immigration sweep like one performed in the town of Guadalupe in 2008, which was later declared unconstitutional.

The judge ruled in May 2013 that Arpaio, who bills himself as “America’s Toughest Sheriff,” violated the rights of Latino drivers with his crackdown on illegal immigration and ordered him to stop using race as a factor in law enforcement decisions.

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My old prosecutor pal, Ken Lammers, explains why he thinks concerns about religious freedom, à la the First Amendment type, is overblown when it comes to the benefits offered by trend toward redemption in drug courts.

Religious organizations put a lot of work into helping their fellow man. Any drug court out there would be insane to ignore the resources provided by groups such as Catholic Charities or The Salvation Army. Even groups which are not specifically attached to a religion use faith as a tool (AA/NA).  However, in the modern world, with its veto of one, it’s difficult for a drug court to use any of these programs unless it wants to risk being sued out of existence.

Indeed, religious groups have done an excellent job of offering means to beat the addiction to drugs and alcohol.  They should be commended for putting the effort, and indeed, the money, into making programs available to help people.  But as Ken notes, part of their methodology is to use “faith as a tool.” Continue reading →

The New York Times Room for Debate series has, of late, ranged from the irrelevant to the presumptive, which is unfortunate given the size of its soapbox and its ability to offer meaningful insight into issues confronting society.  There are often good arguments on both sides of an issue, worth knowing if a thoughtful society is to make intelligent decisions.

One of the problems reflected in the editorial choices made is their favoring advocates and academics as their “debaters,” the former bringing a woeful lack of doctrinal knowledge and the latter bringing a woeful lack of real world experience.

More often than not, the debaters fail to inform, and instead inflame as die-hard advocates of the cause. Rarely does the Times invite a knowledgeable practitioner, say a criminal defense lawyer, to opine, when they raise questions of, say, criminal law.

Today’s Room for Debate, brought to my attention by Liliana Segura, is one of both great interest and concern to those of use who address the intersection of criminal law, First Amendment law and, dare I say it, feminist concerns.  The question posed: Do We Need a Law Against Catcalling? Continue reading →

While I’m not usually inclined toward things that raise emotional or visceral reactions, this video does exactly that, and for a truly worthwhile reason.

Via the Free Thought Project, the video shows Alejandro Natividad, who somehow had the wherewithal to start recording with his phone, stare at the business end of police pistols and yet refuse to lie down upon command because he had committed no crime. Continue reading →

Biometrics seems like such a cool way to control access, so when Apple offered fingerprint ID in place of a PIN to access its iPhone, what hipster could resist?  Of course, David Baust in Virginia Beach may well wish he had gotten a droid instead.

A Circuit Court judge has ruled that a criminal defendant can be compelled to give up his fingerprint, but not his pass code, to allow police to open and search his cellphone.

The question of whether a phone’s pass code is constitutionally protected surfaced in the case of David Baust, an Emergency Medical Services captain charged in February with trying to strangle his girlfriend.

While the Supreme Court has held that police must obtain a warrant to search a cellphone, the question now becomes whether a warrant is sufficient to compel a person to provide the police with access to his cellphone.  This is where it gets trickier, and far more technical. Continue reading →

The Washington State Supreme Court faced up to its own earlier error, holding in State v. W.R.  that the burden of proving consent in a juvenile forcible compulsion rape case cannot be shifted to the defendant.

Throughout the police investigation, W.R. consistently denied ever having sexual intercourse with J.P. Shortly before trial, he admitted that they had engaged in sexual intercourse on January 2, 2011, but defended it as consensual. To support his defense, W.R. testified that J.P. had a crush on him and that the two had engaged in sexual intercourse on a prior occasion in July 2010.  J.P. initially denied ever having sex with W.R. before the January incident. At trial, however, she admitted to having sex with W.R. on both occasions but insisted she did not consent to either. Although W.R. ‘s sister did not witness the alleged rape, she was in the vicinity when it occurred and testified that J.P. had a crush on W.R.

The trial court found J.P. credible, and W.R. and his sister incredible. The court found that W.R. committed forcible rape, and that the W.R. had failed to prove an affirmative defense of consent by a preponderance of the evidence.  The Supreme Court reversed, rejecting its earlier precedent in State v. Camara, 113 Wn.2d 631, 639-40, (1989). Continue reading →

On top of the news of the FBI spoofing the Seattle Times in an email to plant a virus on a target’s computer comes Nina Totenberg’s NPR post about a black bag job in Vegas.

Some legal cases do more than raise eyebrows — they push the legal envelope to change the law. Such is a federal case in Las Vegas now working its way through the courts. The question is whether federal agents can disrupt service to a house and then, masquerading as helpful technicians, gain entry to covertly search the premises in hopes of finding evidence that might later justify a search warrant.

Yeah, yeah. Another day, another violation of the Fourth Amendment.  Another ruse to circumvent the warrant clause, because knowing, intelligent and voluntary is such an archaic view of consent.  To the lawyer, this subterfuge specifically designed to obtain voluntary entry is a good idea only when compared to “consent or I’ll shoot your children.” Continue reading →

Its launch has been fairly quiet, but Avvo has reinvented itself again, this time with Avvo Adviser:

Avvo, the leading online legal marketplace, today announced the launch of Avvo Advisor®, available online or via a free app for iOS® devices. Avvo Advisor offers consumers on-demand legal advice from an experienced, top-rated lawyer anytime, anywhere, for a fixed-fee of just $39 for 15 minutes over the phone – a savings of up to 71% over the average hourly fee for a lawyer.

Certainly a step up from the leading legal Q&A website, with its awful Avvo Answers, which have proven a substantive disaster and ethical gutter, as lawyers paraded across jurisdictions and practice areas to log as many “calls to action” as possible.  But this could be different.

Putting aside the hyperbole of “an experienced, top-rated lawyer,” which begs the question of Avvo’s ratings trustworthiness and acquiescence in scoundrel lawyers abusing Avvo for their financial gain, the idea of biting off smallish chunks of time for a quarter of a $156 per hour fee, prepaid, changes the equation.  After all, if a lawyer has an open chunk of time, he can fill it with a phone call.  It’s not a bad deal for the lawyer, as he’s not forced to take the call or under an obligation to make himself available at midnight. Continue reading →

Ward Farnsworth, guest-blogging at Volokh Conspiracy because he has a book to sell, offers some insight into the law of restitution.  For context, bear in mind that restitution is meant to make someone whole, to restore them to the status quo ante as if whatever bad thing that happened never happened.  Because victims.

I steal your $100 and use it to place a bet at a casino. I get lucky and win $100,000. Do I owe you the whole $100,000? Indeed I do. You can collect it all from me in a suit for restitution.

The case shows why it sometimes isn’t enough to make wrongdoers just pay for the harm they cause. The harm to you was $100; merely paying it back would leave me too well off and would tempt me to do it again (assuming I’m not in prison!). Sure, you could sue in tort and try to argue for punitive damages, but those are discretionary and are sure to be much smaller. You would be much better off bringing a restitution claim and asserting that the winnings are yours as a matter of right.

Continue reading →